What Pennsylvania and Vermont wrote about arms before the Second Amendment

When a lawyer wants to know what a contract clause means, he does not start with the argument of the party who wants it to mean something else. He asks what the parties said to each other when they signed. The same method works on the Second Amendment, and the record is better than most people realize.

Fifteen years before the amendment was ratified, Americans were already writing arms rights into constitutions of their own. They did it in the middle of a war, in conventions of working farmers, lawyers and tradesmen, and what they wrote is plain. Read the originals before you read the commentary on them. The commentary, like a movie sequel, rarely improves on the source.

Why the state texts come first

A quick piece of chronology. The Declaration of Independence was adopted in July 1776. The Constitution was drafted in Philadelphia in 1787 and ratified in 1788. Madison proposed the Bill of Rights to the First Congress in June 1789, Congress sent the amendments to the states that September, and the Second Amendment became part of the Constitution when Virginia ratified on December 15, 1791.

Between 1776 and 1780, however, many states wrote or rewrote their own constitutions, and several included declarations of rights. Those documents were the working drafts of the American idea. When Madison sat down in 1789, he did not invent a right. He condensed language already in circulation, language that state conventions had debated and voted on. If you want to know what "the right of the people to keep and bear arms" meant to the people who adopted it, the state texts are the best dictionary you have.

I will go through four of them, and then the clauses about standing armies that sat beside them.

Virginia, June 1776: the militia model

Virginia comes first in time, so a word on it even though it is not our main subject. George Mason's draft of the Virginia Declaration of Rights was adopted on June 12, 1776. Section 13 reads:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

Notice that it is a militia clause, and a clause about civil control of the military, but it does not contain an individual arms right in so many words. The militia is "composed of the body of the people." That wording would matter when the federal amendment was written, and I treat it fully in George Mason and the well regulated militia composed of the body of the people. For our purposes the Virginia text gives us the structure: a militia of the people, a distrust of standing armies, and civilian supremacy. The next states add a second element, an express right.

Pennsylvania, 1776: arms for defence of themselves and the state

Pennsylvania's constitution was written in the summer and fall of 1776 by a convention in Philadelphia, presided over by Benjamin Franklin. It opened with a Declaration of Rights. Article XIII reads:

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.

Take the three clauses one at a time.

"The people have a right to bear arms." The right is held by "the people," a phrase used elsewhere in the same declaration for the political community as a whole.

"For the defence of themselves and the state." There are two purposes here, joined by "and." One is personal: "themselves." The other is public: "the state." A reader who wants to read the clause as only about the militia has to ignore the word "themselves." A reader who wants to read it as only about private protection has to ignore "the state." Both purposes are in the text, side by side. That is the key observation about the Pennsylvania clause, and it points toward what the Supreme Court said about the Second Amendment in 2008: the prefatory clause announces a purpose, and the operative right is held by individuals.

"Standing armies in the time of peace are dangerous to liberty." Then comes the limit on armies, and the demand for civil control of the military. These are the familiar English concerns of 1689. They appear in the same article as the arms right.

The same convention wrote Section 43 of the Frame of Government, which gave the inhabitants liberty to fowl and hunt in seasonable times on the lands they held and on other lands not enclosed. In other words Pennsylvanians had separate protection for hunting, and still wrote the arms right in terms of defence. That is a useful reminder that no one in 1776 thought arms and hunting were the same subject.

North Carolina, 1776: the same text, pared down

North Carolina adopted its constitution and Declaration of Rights in December 1776. Article XVII of the Declaration reads:

That the people have a right to bear arms, for the defence of the State; and, as standing armies, in 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.

Compare it with Pennsylvania. The structure is the same, but the words "themselves and" are gone: "for the defence of the State." A skeptic can say, fairly, that North Carolina's version points more toward the public purpose. A supporter of the individual right can answer that the right is still declared to be that of "the people," and that the state's defence in a militia system is carried out by individuals bearing their own arms. The honest conclusion is that the founding generation was not uniform, and that the 1776 texts vary in how much they say about private defence.

But the variations matter less than the common elements, and the common elements are these: a right of the people, a link to defence, and a limit on standing armies.

Vermont, 1777: the independent republic

Vermont deserves a note, because it was not yet a state of the Union. The settlers of the New Hampshire Grants, in what is now Vermont, declared independence and adopted a constitution in July 1777, and Vermont operated as an independent republic until it joined the Union as the fourteenth state in 1791. Chapter I, Article XV of its Declaration of Rights provides:

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.

Vermont followed Pennsylvania almost word for word, including "themselves and the State." Vermont, as it happens, borrowed much of its declaration from Pennsylvania's. The result is two founding-era texts with the same wording on defence of self and state. Vermont later became known for never requiring a permit to carry, and vermont never required a carry permit, and the sky never fell tells that story. The habit had a root in its founding text.

Massachusetts, 1780: "keep and bear" for the common defence

The Massachusetts Constitution of 1780 was drafted largely by John Adams, ratified by the voters in 1780, and is still counted among the oldest functioning written constitutions in the world. Article XVII of its Declaration of Rights provides:

The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it.

Two features stand out.

First, "keep and to bear." This is the language the federal amendment would adopt eleven years later. The Massachusetts convention joined the verbs that Pennsylvania and North Carolina had left out. It is worth saying plainly: the phrase "keep and bear arms" was American constitutional language before the federal Constitution contained it.

Second, "for the common defence." The purpose is public. Massachusetts, the heart of the Revolution, expresses the right in terms of the community's defence. Yet note what the limitation on armies says: not maintained "without the consent of the legislature." The text does not ban standing armies in peacetime but subjects them to legislative consent. That is a milder version than Pennsylvania's, and it shows that the founders disagreed about how far to restrain a regular army, even while they agreed about the right.

What the state texts have in common

Lay the four side by side.

Four observations follow.

1. Every text gives the right to "the people." None gives it to a militia as an institution or to the state.
2. Every text ties the right to defence. The defence is of the state, or of the state and the individual, but it is always defence, never recreation.
3. Every text sets a limit on standing armies beside the right. The same clause that gives the people arms also keeps the regular army on a leash. This pairing was not accidental. A people with arms checks an army, and a clause limiting the army confirms the point.
4. Every text subordinates the military to civil authority. The soldier answers to the elected government.

Those four features are exactly the features of the federal Second Amendment. It, too, speaks of "the people," ties the right to the security of a free state, and sits next to constitutional rules that keep the military under civilian control. The Constitution authorizes Congress to raise and support armies, but limits army appropriations to two years (Article I, Section 8, Clause 12) and makes the President the commander in chief while leaving the power to declare war and fund the force to Congress.

The strongest objection, stated fairly

The honest objection from the other side is the "common defence" argument. Look at the state texts, it says. They speak of "the state," "the common defence," and the militia. In the eighteenth century, bearing arms was a military phrase. To bear arms meant to serve in a military unit. The state declarations therefore protected a collective, civic right to serve in the militia, and the federal amendment, with its opening clause about a well regulated militia, meant the same. On this view, none of these texts shows a personal right to keep a gun in the home.

It is a serious reading. Some respected historians held it, and the four dissenting justices in Heller did. It deserves an answer in points, and here they are.

One. The texts say "themselves." Pennsylvania and Vermont use the word. A right to bear arms "for the defence of themselves and the state" cannot be only about a military unit. If "themselves" means anything, it means the person.

Two. "Keep" is not a military verb. Massachusetts's "keep and to bear" gives us two verbs. To bear arms may have a military flavor, though even that is doubtful, since the phrase was used in the eighteenth century for carrying weapons generally. But to keep arms is to own and store them, which is what an individual citizen does at home. The founders added "keep," and a drafter does not add a verb for decoration.

Three. The militia was the people. In the founding understanding, the militia was not a select group of enlisted soldiers. It was every able-bodied man, and each man provided his own weapon. (Read Every able-bodied man must own a musket, the Militia Act of 1792 and its heirs for the details.) A right to bear arms in the militia therefore required a right to own arms at home, because the government did not issue them. The collective purpose and the individual right were not rivals; the first depended on the second.

Four. The same states passed hunting and self-defense laws. Pennsylvania's hunting clause shows the founders distinguished uses. They did not need the arms clause to protect hunting, which they protected elsewhere. The arms clause was about defence, and defence includes the defender.

Five. The ratification debates, which came next, show individuals. The proposals from the state conventions of 1787 and 1788 spoke of disarming "any citizen" and "the people or any of them." That record, treated in What the ratifying conventions demanded before Madison drafted an arms right, reads as a demand for personal protection.

The best of the objection's points is that these four texts do not all say the same thing, and I concede it. But variation in the wording is not variation in the idea. Every state that wrote the clause put the right in the people and tied it to defence.

What the standing-army clauses add

One more thing about the texts: the clauses next to the arms right. We tend to read a clause in isolation. The founders did not. They put the right to arms and the limit on armies in the same sentence or the same article because they thought the two were one subject. A free state kept itself free by having a people who were armed and a government that was not allowed to keep a large permanent force.

The Americans had a recent grievance on this point. The Declaration of Independence accuses George III of having "kept among us, in times of peace, Standing Armies without the Consent of our legislatures," and of having "affected to render the Military independent of and superior to the Civil power." The state declarations take those two grievances and write them into constitutional prohibitions. The arms clause was a remedy for the first, the subordination clause for the second.

There is a certain dry comedy in all this for modern readers. We have gotten used to arguing as though the right to arms and the question of a professional army are separate topics, one for the gun debate, the other for the defense budget. The founders would find the separation baffling. To them it was a single question: who holds the power of force, the people or the government?

For the people who ask where their own state stands, why your state constitution may guard gun rights better than the federal one explains how state arms clauses work today, and the site's constitution page has the federal text.

The case in brief

1. Before the federal Bill of Rights, Pennsylvania (1776), North Carolina (1776), Vermont (1777) and Massachusetts (1780) wrote the right of the people to bear arms into their constitutions.
2. Pennsylvania and Vermont tied the right to the defence of "themselves and the state," and Massachusetts added "keep," so the individual and the community were both in view.
3. Every one of these texts set a limit on standing armies and civil control of the military beside the arms right.
4. The federal Second Amendment condensed this existing language, so the state texts are the best evidence of what Americans meant by it.
5. The objection that these were only militia clauses fails on the words "themselves" and "keep" and on the fact that the militia was the armed people.

What you can do: look up your own state constitution's arms clause, note whether it says "themselves" or "keep," and read how your state's courts have applied it.