Originalism Right or Originalism Lite: The Curious Case of the Second Amendment
By Saul Cornell
The Pennsylvania Declaration of Rights affirmed “a right of the people to bear arms in defense of themselves and the state.” Individual rights theorists argue that the word “themselves” implies an individual right to own a gun. While these scholars and gun rights activists lavish attention on this provision of the Pennsylvania Declaration of Rights they ignore the first mention of the right in an earlier provision which links this right with an obligation to contribute to public defense and provides an exemption for those religiously scrupulous about bearing arms. While the state could force citizens to bear arms, they could not force individuals to hunt or defend themselves individually. Once again, the term bear arms clearly described an activity associated with carrying a gun in a military context. Quakers might bear a gun against a deer, but they did not bear arms. It was a standard rule of Blackstonian legal construction that legal terms of art such as bear arms had to be construed in the same sense in different parts of the same document. Since the term carries a clear military meaning in one provision, one must read it that way in the subsequent provision. If we are interested in the plain meaning of the text and its orthodox legal construction in the Founding era we must read the text according to the rules of interpretation that would have been used by lawyers in the Founding era, not those used by modern lawyers.
There is additional textual evidence to suggest that the original understanding of this text referred to military weapons used for public defense. Pennsylvanians included a separate provision of the Constitution to protect a right to hunt. If bearing arms was the same as bearing a gun, then there would have been no need to include a separate provision expressly protecting this non-military use of firearms.
Context provides other clues to the original understanding of the Pennsylvania Declaration of Rights. The authors of this provision of the Pennsylvania Constitution, as Nathan Kozuskanich’s recent dissertation demonstrates conclusively, were closely associated with back-country interests. (Individual rights theorists often invoke the authority of James Wilson when interpreting this text, even though Wilson did not sit in the convention that drafted the 1776 Constitution and was detested by those who did!) The men who drafted the arms bearing provision of this document had been involved in a long and protracted conflict with the Quaker government of colonial Pennsylvania who refused to create a militia that would allow them to defend their communities against Indian attack. Bearing arms in defense of themselves and the state, a phrase literally lifted from one of their earlier petitions, clearly meant defending local communities, not an individual right of self defense. The back country residents who drafted the Pennsylvania Declaration of Rights did not need to demand protection for the individual right of self defense, it was well established under common law and had been exercised on a daily basis during the frontier violence of the French and Indian War and Pontiac’s War. Nor did the Quaker government try to interfere with this right. What the Quaker government had blocked, and what frontiersmen demanded, was a militia! Another guiding rule of Blackstonian construction was that one had to interpret legal texts in light of the evils they were intended to remedy. Pennsylvanians framed their provision on arms bearing in light of the problem of public safety they had wrestled with for more than a generation, not questions of gun regulation, which were uncontroversial at the time.
Saul Cornell is Associate Professor of History at Ohio State University and Director of the Second Amendment Research Center at the John Glenn Institute. His most recent book is A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. Read part one from yesterday or check back tomorrow for part three of “Originalism Right or Originalism Lite.” If you just can’t wait check out Cornell’s email dialogue with Mark Tushnet.