Parsing Pennsylvania and Vermont constitutions, 1776 and 1777.

[jody]

I use PA and VT constitutions often in DU discussions because they predate our Articles of Confederation, Constitution, and Bill of Rights. They both use the same language in the paragraphs I cite except PA uses “inalienable rights” and VT uses “unalienable rights”, a difference that also happened with the Declaration of Independence.

"That all men are born equally free and independent, and have certain natural, inherent and (inalienable or unalienable) rights, amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety."
And
"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."

IMO the authors of the PA/VT constitutions chose their words very carefully because they knew most people were illiterate and important documents would be read too large audiences in the town square.

IMO the adjectives “natural”, “inherent”, and “inalienable” were carefully chosen because they precisely define the terms of a social contract into which a group of sovereign entities called citizens freely entered into and we now study as constitutions.

In the 17th and 18th century, philosophers debated the source of individual rights and among the alternatives was the “divine right of kings or popes” versus “nature”.

Given colonial distaste for the monarchy far away in England, PA/VT citizens told England to bug out because in America, rights came from “nature” and not some divinely anointed king/pope in Europe.

On another dimension and recognizing that governments once appointed grow like a terminal illness, PA/VT citizens said natural rights were also “inalienable”. That means citizens can never give away an inalienable right nor can government legitimately take away an inalienable right. SCOTUS has since said that for very special situations, government as representatives of We the People, may restrict a right but SCOTUS has never said government could ban a right. A classic example is limiting the yelling of fire in a theater.

The adjective “inherent” means every human has that right, period, end of discussion, no need to argue about race, gender, or other classification scheme.

The result is a very well crafted statement “"That all men are born equally free and independent, and have certain natural, inherent, inalienable rights”.

Add to that statement, certain enumerated rights by saying “amongst which are, the enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety" and I believe you have a rock solid foundation for the natural, inalienable right of self-defense.

PA/VT then went one step further and separated defense of self from defense of state even though at the time most citizens would use the same tools for self-defense and defense of state. The two states said "That the people have a right to bear arms for the defence of themselves and the state”.

Move forward from 1776/1777 to 1787 when the Constitution was adopted and we find provisions for the militia and defense of state covered in Clauses 15 and 16, Section 8, Article I of our Constitution.

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Move forward again to 1791 when the Bill of Rights was ratified and we find the Second Amendment that has provoked so much debate about whether it’s for a militia under collective rights or for individual rights.

If the Second Amendment was only about the militia, it would not be needed because the Constitution gives congress 100% of the authority and power needed for a militia made up of all the citizens with exceptions.

Lost in the current discussion of the Second Amendment is the original purpose that PA/VT stated so clearly in their declarations, “That all men are born equally free and independent, and have certain natural, inherent and inalienable rights” and "That the people have a right to bear arms for the defence of themselves and the state”.

The right to bear arms for self-defense can never be given away by PA/VT citizens therefore they retained that right when they entered into the social contract we honor as our Constitution.

If the Second Amendment does not obligate government to protect that right as an enumerated right, then the Ninth Amendment obligates government to protect it because PA/VT declared the right to bear arms for self-defense is a “natural, inherent, inalienable” right.

Comments please.