”WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT”QUOTE
2. Early Constitutional Recognition of the Right.
One product of this experience of the American Revolution was that several States included explicit right-to-bear-arms provisions in declarations of rights that they adopted during the war. These appeared in Pennsylvania, North Carolina, Vermont, and Massachusetts.
In the identical provisions of Pennsylvania and Vermont, the language plainly reaffirmed the established right of individuals to arm themselves for self-defense. In the provisions of North Carolina and Massachusetts, although the express scope of the right may have been narrower, the right still belonged to individuals - these state provisions could not have been intended to protect the States' prerogatives, nor did they restrict the right to participants in militia units. Other States, most notably Virginia, did not include any provision regarding the right to bear arms in their declarations but did praise "a well regulated Militia." (221)
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Pennsylvania. Pennsylvania adopted its Declaration of Rights in September 1776. Article 13, immediately following an article providing "(t)hat the people have a right to freedom of speech," read:
That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power. (226)While following the same structure as Virginia's (of which the convention members were well aware (227)), this article replaced the praise of the well-regulated citizen militia with a right - a right of "the people," who, just as they had an individual right to speak, also had an individual right to "bear arms," for either of the dual purposes of defending "themselves and the state." The article does not restrict the right to those in militia service, which it does not mention and which Pennsylvania addressed separately: Article 8 broadly provided that "every member of society," receiving protection from it, was bound to contribute money and "his personal service when necessary," while allowing an exception for anyone "conscientiously scrupulous of bearing arms, . . . if he will pay
equivalent." (228) And the plan of government, adopted concurrently, provided for a militia of "he freemen of this commonwealth and their sons." (229)
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Pennsylvania held another convention from November 1789 through September 1790, as the Second Amendment was before the States for ratification. The resulting constitution retained essentially the same individual right. Section 21 of the declaration of rights, immediately following a section providing "hat the citizens have a right" to assemble and petition, provided:
That the right of the citizens to bear arms, in defence of themselves and the State, shall not be questioned. (232)
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Thus, the right to "bear arms" remained with individual people, now "the citizens," and existed for the dual purpose of facilitating the defense of individuals and the State. Neither purpose was expressly tied to, let alone limited to, service in the militia. And the duty of "freemen" to "bear arms," including possible exemption from that duty, was distinct and was tied to the militia. In both the 1776 and 1790 Pennsylvania constitutions, "bear arms" could and did bear both meanings.
UNQUOTE
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