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Pennsylvania, the Militia, and the Second Amendment
| There Is Perhaps No Icon more mythic in the lore of the American Revolution than the Minuteman, the republican defender of liberty and symbol of American independence. Of course, veneration of the armed militia man is not just the product of modern scholars bent on laying claim to the original meaning of the Second Amendment. As the only colony without an established militia tradition, many Pennsylvanians before the Revolution believed that a state-sanctioned militia was the solution to several of the province's problems. The frontier violence of the French and Indian War and Pontiac's Rebellion galvanized a coalition of men who sought to establish a militia law that would demand military participation from every male citizen. This vision of civil society, which placed a premium on contributing to the common defense, pushed Pennsylvania into the Revolution and shaped its 1776 constitution and Declaration of Rights.1 By the Revolution, pacifism had become untenable, and the Quaker Party and its followers saw their power wane as the province joined in open rebellion against the British Crown. In 1777, the new assembly passed Pennsylvania's first militia law, mandating that all men contribute to the common defense either through actual service or fines. This story, familiar to anyone who has studied Pennsylvania history, has more than just local significance. In fact, it recently captured the interest of the United States Supreme Court.2 |
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Since the Philadelphia press regularly and exhaustively discussed arms and the militia, Pennsylvania provides an excellent case study of eighteenth-century attitudes about these subjects—a fact not lost on Second Amendment scholars.3 Competing interpretations of the militia and the right to bear arms recently came to a head before the Supreme Court in District of Columbia v. Heller, with Pennsylvania's history playing a key role in the Court's interpretation of the case, which questioned the constitutionality of Washington, DC's ban on handguns.4 Numerous petitioners filed briefs invoking the original meaning of the Second Amendment.5 Joseph Scarnati, president pro tempore of the Pennsylvania senate, filed an amicus brief arguing that "Pennsylvania's history informs any inquiry into the meaning of the Second Amendment of the United States Constitution." Moreover, he asserted that "Pennsylvania's history supports a conclusion that the Second Amendment protects an individual right to keep and bear arms for private purposes."6 Scarnati's basic line of reasoning was that since the Quaker government refused to pass a viable militia law before its dissolution, Pennsylvanians enshrined an individual right to self-defense in the 1776 constitution "after seeing firsthand the fatal consequence of relying solely on government to protect public safety."7 Unfortunately, Scarnati's conclusion is utterly unsubstantiated by historical evidence and shaped more by modern misconceptions and mythologies than actual historical research. |
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Scholars have contested the meaning of the Second Amendment, and an argument over the collective or individual character of the right to bear arms continues to dominate the literature. Was the Second Amendment meant to protect a state right to preserve the militia (the Collective Rights Model), or did it refer to an individual right to possess and carry guns for self-defense (the so-called Standard Model)?8 To substantiate their claims about the federal Bill of Rights, scholars on both sides of the debate have looked to the precedents established in the militia clauses of state constitutions. Since Pennsylvanians were the first to codify a right to bear arms, their recognition of the "right of the people to bear arms in defense of themselves and the state" has garnered particular attention.9 Indeed, Heller's own brief cites the Pennsylvania constitution to argue that "eighteenth-century constitutional drafters used 'bearing arms' in the individual sense."10 For Heller, "defense of themselves" means self-defense, and so the right to bear arms protected in clause 13 must be individual. |
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