Is the PA Constitution, section 21 weak?

**The Drew** · November 27th, 2007, 09:30 AM

Since the 2nd Amendment was never ruled on whether it is an individual right, and neither was it "incorporated" to include an overruling of state law. We may see this in the coming year with the parker case, but that isn't the situation yet. Which is what makes section 21 of the PA constitution much more important.

States that do not have constitutional provision to keep and bear arms are the ones who have some of the worst gun laws...

**bogey1** · November 27th, 2007, 12:53 PM

Originally Posted by Azzy

Isnt the nitpicking of singular words where we got into trouble with the 2A?

Why cant it just be simple and mean as it says? Damn lawyers should never had the chance to get into law making.

you are so correct......

**Wynder** · November 28th, 2007, 08:37 PM

I've always wondered, by the letter of that statute, if you're open carrying as protected by that simple phrase, wouldn't being questioned about it by the police an infringement on your rights?

**TaePo** · November 29th, 2007, 05:57 PM

Wynder,

Ding-ding-ding-ding.

You win!

This is where I suspect the State (counties technically) are reserving that decision to make. To question when we are OCing and to deny our Conceal permit if we do so.

This is why I think an 'or' would be better than an 'and'. Or to have written with less verbage.

**awkx** · November 29th, 2007, 07:05 PM

Originally Posted by TaePo

This is why I think an 'or' would be better than an 'and'. Or to have written with less verbiage.

I still think that the "or" version would be just as syntactically ambiguous as the "and" version. Consider this grammatically similar sentence:

If the product is defective, then the manufacturer shall not question the consumer's right to demand that it be repaired or replaced (at the the manufacturer's option).

I think the parenthesized part clarifies a genuinely ambiguity in the sentence: who gets to decide the method (repairing vs replacing) by which the defect will be remedied?

Furthermore, I think a semantic analysis resolves the syntactic ambiguity in Sec 21. To bear arms in defense of the State would normally mean official service in the militia. To bear arms in defense of oneself would normally mean private self-defense against individual lawlessness or wild animals. The two cases of bearing arms (in defense of the state and in defense of oneself) are nearly mutually exclusive --- this indicates that Sec 21 should be interpreted as protecting both the right to armed private self-defense and the right to bear arms in defense of the state.

wouldn't being questioned about it by the police an infringement on your rights

I think the verb "to question" here means "to challenge or dispute". So if a police officer merely strikes up conversation with you and asks why you are OC'ing, I see no infringement. But if the officer challenges your right to openly carry a firearm, then yes, his actions violate Sec 21. If the officer actually denies you the right (e.g., by confiscating the gun or by arresting you for OC'ing), then he is also guilty of depriving you of civil rights under color of law (42 U.S.C. §1983). Good luck prevailing at court though, as our judicial system would be stacked against you.