"That's what he/she said", a miscellaneous now-and-then on the PA Constitution

[anonymouse]

Even more miscellaneous between now and then and between here and there (its significance in that right around this time we first got our Uniform Firearms Act):

“[T]he exercise of a right guaranteed by the Constitution cannot be made subject to the will of the sheriff.” People v. Zerillo, 189 N.W. 927 (Mi. 1922).

<sarcasm> To be fair that's nine years before the "Witkin Firearms Act" was enacted. </sarcasm>

[t1m0thy]

To be fair that's nine years before the "Witkin Firearms Act" was enacted.

No law, save an amendment, supersedes the Constitution. However, if the balance of power is corrupted and the guardians of liberty fail in their task of preserving the original intent of the Constitution then it can mean whatever they want it to mean. Without intellectual honesty and principled thinking individual liberty and the rights of man are soft clay which can be molded into whatever our judicial, legislative, and executive branches wish them to be.

[MDJschool]

A bitter pill to make you ill,
Q: When can a state constitutional right be ignored or 'regulated'?
A: Anytime the government can utter the words 'police power' and apply them to whatever subject they'd like.

"Has the Legislature then power, under article 1, § 1, of the Constitution, to make punishable the possession of liquor not acquired prior to January 1, 1934, nor purchased from a state liquor store? That constitutional section provides: ‘All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.’
"But, the state possesses inherently a broad police power, which transcends all other powers of government. There is therefore no unqualified right to acquire, possess, and enjoy property if the exercise of the right is inimical to the fundamental precepts underlying the police power. This court said in Com. v. Widovich, 295 Pa. 311, 145 A. 295, 298: ‘The police power is the greatest and most powerful attribute of government; on it the very existence of the state depends. * * * If the exercise of the police power should be in irreconcilable opposition to a constitutional provision or right, the police power would prevail.’ It needs no constitutional reservation or declaration to support it. City of Scranton v. Public Serv. Com., 268 Pa. 192, 110 A. 775. And see Powell v. Commonwealth, 114 Pa. 265, 7 A. 913, 60 Am.Rep. 350[.]"
Com. v. Stofchek, 322 Pa. 513, 519, 185 A. 840, 844 (1936)

How a court can read the right to possess property in the declaration of rights, say that something other than possession is some sort of harm or evil that allows for police power action, and then say that possession of liquor is a valid constitutional exercise of police power, I do not know. "No right is more important than the government." Oh, wow.

Luckily I find the somewhat the opposite in Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Western Pennsylvania Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 512 Pa. 29-31, 515 A.2d 1334-1335 (1986). "The Pennsylvania Constitution of 1776, our first post-colonial constitution, illustrates Pennsylvania's basic constitutional scheme. It contains two parts: one which establishes a government and one which limits its powers. The first part, titled Declaration of Rights of Inhabitants of the Commonwealth or State of Pennsylvania, contains most of the language found in our present Article I. The second, titled Plan or Frame of Government for the Commonwealth or State of Pennsylvania, establishes a governmental system. This simple two-part format in itself evinces the draftsmen's intent to establish a government and to limit its powers, R. Woodside, supra, at 114, in consonance with their known adherences to the theories of Locke, Montesquieu and other natural law philosophers. J. Selsam, The Pennsylvania Constitution of 1776, 176 (1936). Additionally, § 46 of the Frame of Government acknowledges the limitations on governmental power[.] [...] Considering the foregoing history, we conclude that the Declaration of Rights is a limitation on the power of state government. Accord R. Woodside, supra, at 113. The Pennsylvania Constitution did not create these rights. The Declaration of Rights assumes their existence as inherent in man's nature. It prohibits the government from intefering with them and leaves adjustment of the inevitable conflicts among them to private interaction, so long as that interaction is peaceable and non-violent. This Court has consistently held this view, that the Pennsylvania Constitution's Declaration of Rights is a limit on our state government's general power. O'Neill v. White, 343 Pa. 96, 22 A.2d 25 (1941). Commonwealth ex rel. Smillie v. McElwee, 327 Pa. 148, 193 A. 628 (1937); Commonwealth ex rel. McCormick v. Reeder, 171 Pa. 505, 33 A. 67 (1895). It has also followed this premise in holding that particular sections of the Declaration of Rights represent specific limits on governmental power. Thus, in William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, cert. denied, 368 U.S. 897, 82 S.Ct. 174, 7 L.Ed.2d 93 (1961), the Court held that Article I, Section 7 prevents Commonwealth agencies from imposing prior restraints on the communication of thoughts and opinions of individuals. Therein we stated: 'Although the provision in Article I, § 7, of the Pennsylvania Constitution, as above quoted, has never heretofore been interpreted by this court in present context, it is clear enough that what it was designed to do was to prohibit the imposition of prior restraints upon the communication of thoughts and opinions, leaving the utterer liable only for an abuse of the privilege. History supports this view.' Id. at 88, 173 A.2d at 62."

[MDJschool]

Now:
18 Pa.C.S. 6106: "[A]ny person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree."
18 Pa.C.S. 908: "A person commits a misdemeanor of the first degree if, except as authorized by law, he makes . . . uses, or possesses any offensive weapon."
Then:
When contemplating the 1874 PA Constitution, a motion was made to add "openly" after "citizens" at art. I, § 21. Here are some excerpts from the debate:

"Although the act of Assembly is against carrying arms secretly in that way, yet they fall back on the Constitution, which they say authorizes the bearing of arms, and therefore the act of Assembly is unconstitutional. [It] has been made constantly a matter of defence, and it gives the courts great annoyance."
"I think this amendments should prevail and the word “openly” should go in for this simple reason, that in some portions of the State they have local laws against carrying concealed deadly weapons, and when that question was brought before one of the courts of Philadelphia, one of the judges declared that a person upon the witness stand who had a pistol concealed on his person had a constitutional right to carry that pistol concealed . . ."
"Suppose I may be required, as I have been on different occasions, coming from the city of Washington upon a delayed train, to walk at half-past one or at two o’clock in the morning from the depot at Broad and Prime streets, and have my steps dogged all the way to the hotel, am I to have no possible protection? I understand that among other things that cannot be taken from a man, is the privilege he has to defend his life and to protect himself. Of course he is answerable to the fullest extent for the use of it, and your law against carrying concealed weapons does not interfere with the habit among the dangerous classes. But there are periods in every community, periods of excitement, when it may be necessary for a man to say in his own behalf, “Say what you please and do what you please, but you must not beat or maltreat me,” and with all the inequalities of physical condition that exist, it is the very worst thing in the world to say that if a man of my condition offends a man like Judge Woodward, he is to take a severe beating whenever his enemy chooses to inflict it. I do not believe in it. I believe in the right of self-defence of the weak against the strong, and I do not propose to allow any man to maltreat me at his pleasure, as long as there are any weapons of defence to be had by which I can equalize my strength with his."
"I cannot see why the Constitution should prohibit a man from carrying weapons to defend himself unless he carries them openly[;] why you should require him to sling a revolver over his shoulder[?]"
"For more than four years in the oil regions of Pennsylvania, during the excitement of speculation and during the war, no man’s life would have been safe had it not been well understood that every man carried concealed weapons. No man had any business to be there without them."
"Mr. HOWARD.: . . . No man ought to carry any weapon smaller than a musket or a double-barrelled shot-gun so that any other man can see it. . . . Mr. NEWLIN.: I suggest mountain howitzers. [Laughter.]"
"I wish to make but a single remark, and that is that in the acts of Assembly with regard to concealed weapons the word “maliciously” or “feloniously” is used, and there is something in the act itself which relates to the intent of carrying these concealed weapons. . . . Hence it is constitutional to pass such laws in order to restrain persons from carrying concealed weapons with malicious intent."

Of course people who are either antigun or at least lack critical thinking skills sometimes show up at these debates: "But the purpose of such laws is not to prevent peaceable citizens from protecting themselves from the superior muscular power of ruffians, but to prevent the ruffians from arming themselves against peaceable citizens. The gentleman has no right to ask that he may exercise a power outside of the law to protect himself, when the law itself is sufficient for his protection. That very law which he complains of is made for him and not against him; and I appeal even to those gentlemen who think, that there should be no law against carrying concealed deadly weapons to vote for this amendment, for the reason that there is nothing in it which would compel the Legislature to enact such a law" (This guy apparently thinks a law is enough to protect people from bad guys, and that the legislature would never by choice vote for legislation to screw over the People. I'm glad this type of person did not appear to make the majority of this debate!)

In closing.
"Mr. BEEBE.: I would ask the gentleman from Philadelphia, if convictions have been repeatedly had in this city, under this section as it stands, for carrying concealed deadly weapons, why the necessity of the change?
Mr. DALLAS.: Those trials were before judges who never doubted the constitutionality of the law. Other judges have doubted it. I desire it settled."
[...]
The yeas and nays were taken and were as follow, viz:

YEAS.

Messrs. Andrews, Bartholomew; Bigler, Curtin, Dallas, Dunning, Ellis, Fulton, Hazzard, Horton, Howard, Hunsicker, Mann, Nowlin, Purviance, John N., Purviance, Samuel A., Smith, H. G., Smith, Henry W., Smith, Wm. H., Struthers, Turrell, Wright and Walker, President
—23

NAYS.

Messrs. Achenbach Alricks, Baily, (Perry,) Bailey, (Huntingdon,) Beebe, Black, Charles A., Black, J.S., Bowman, Broomall, Buckalew, Carter, Cochran, Corbett, Curry, Darllington, De France, Edwards, Ewing, Funck, Gibson, Gilpin, Guthrie, Hall, Hanna, Harvery, Hay, Hemphill, Kaine, Landis, Lear, Lilly, Long, MacConnell, MacVeagh, M’Clean, M’Culloch, M’Murray, Mantor, Minor, Mitchell, Mott, Niles, Palmer, G. W., Patterson, T. H. B., Patton, Reynolds, Russell, Sharpe, Stanton, Wetherill, J. M., White, David N., White, Harry, White, J. W. F. and Woodward
—54.

So the motion was rejected."

Read the unbiased account of the debates at:
http://democraticthinker.wordpress.c...-self-defense/

How again is it that we have unconstitutional laws like 6106 and 908 on the books today if this is how people at the time of conventioneering understood the right to bear arms provision?

[TaePo]

I liked this thread and still do.

Do you have some more links that I could follow This thread inspired me to think about the terms Limitations on Rights Are Not Reasonable.

I am currently starting some research into an argument paper for an English class and this is basically the subject I have chosen. I have ten pages only so must limit myself. This week, I have to find 20 or more possible sources. I of course am using the Constitution, Declaration, Federalist Papers, anti-Federalist Papers and some books. I need to find some periodicals as well which I hope the online libraries can supply enough info for this topic.

Is Westlaw a paid site? I would like to find the actual docs you refer as possible cites to use. I will be conducting my own research, but we are allowed to query experts, conduct interviews and find information in various ways. If I am able to write something to my satisfaction I will, of course, post it here on the forums. If I get bogged down and I feel the paper becomes a subpar exercise, I reserve the right to chicken out!

Thanks.

[MDJschool]

Do you have some more links that I could follow This thread inspired me to think about the terms Limitations on Rights Are Not Reasonable.
I am currently starting some research into an argument paper for an English class . . .

The recent cite that lead me to post on the debates for 1874 was sourced from a law journal/review, and that's where you're going to find hints to all sorts of historical materials. I don't know off hand where the particular one was that I stumbled upon this, but I think you will find all sorts of goodies just googling "pennsylvania right to bear arms" (and I actually just googled that, to find the first result is where I happened upon it: http://www.guncite.com/journals/halvt.html) because they are naturally analyzing a history of the right and need lots of historical sources. The hard part is actually finding the primary source after you have the cite.

WestLaw is a paid service, although you may attend or be near a college that offers a (law) library with WestLaw subscription access on their computers. WestLaw (and LexisNexis, and FastCase, etc.) offer free versions of their service which probably at the most include statutes unannotated and 10 years back for court cases. However, LexisNexus also has newspapers and such things as might be as source documents, but I have no idea if that is included in their free service. Another thing is that some of these services offer full-use free trials. FastCase.com seems to give away free 24-hour full-use trials and doesn't even have any limit to the number of times you can do it according to their terms of service (several months ago anyway) but I don't think they have any primary source document stuff, just court cases and statutes. I feel like LexisNexus may have a free trial but I've never used it.

By this time I could no longer tell you how I found where I found a masterpiece like Commonwealth ex rel. Hepburn v. Mann, 5 Watts & Serg. 403 (Pa. 1843) or a convenient morsel like Respublica v. Oswald, 1 Dall. 319, 328 n. an-expositive-but-unnumbered-footnote (Pa. 1788) although I assume I just found them when I searched WestLaw for "tyranny", in any case, if you do a 24-hour free trial (no credit card information or verified personal information required) on FastCase, you should be able to find every court case listed on this thread.

[MDJschool]

If anyone comes upon debates for any of the other constitutions (1776, 1790, 1838, 1968), in print or online, please list them here so I can try to find other morsels as sweet as that excerpted from the debates for the 1874 constitution.

[andrewjs18]

I don't have any arguments to add right this second, but I do have links to current and old PA constitutions if anyone is interested since I didn't see any links to the different versions listed:

current- http://www.parevolution.com/education/pa-constitution

1968

1838

1790

1776

[MDJschool]

If anyone comes upon debates for any of the other constitutions (1776, 1790, 1838, 1968), in print or online, please list them here so I can try to find other morsels as sweet as that excerpted from the debates for the 1874 constitution.

Silly me, all the debates for all the conventions can be found through the following portal:
http://www.duq.edu/law/pa-constituti.../1967-1968.cfm

[anonymouse]

Silly me, all the debates for all the conventions can be found through the following portal:
http://www.duq.edu/law/pa-constituti.../1967-1968.cfm

Some interesting stuff in there. There were people screaming for gun control back then too.



From page 433:
http://www.duq.edu/law/pa-constituti...tes-a-vol3.pdf