Right to Bear Arms

Birthplace of the Right to Bear Arms
by Timothy D. McCown
Mercersburg local historian

How much can eleven men burning sixty-three pack horse loads of illegal trade goods on March 6, 1765 affect the course of history? Immeasurably, as this story will demonstrate.

Historian Patrick Griffin in his book American Leviathan, and Terry Bouton in Taming Democracy, note that this date is considered the beginning of the end of British rule in their American colonies.  When this rebellion ended nine months later in November of 1765, arguably one of the best regiments in the British military, the 42nd Royal Highland Regiment, had been forced to abandon its garrison at Fort Loudoun.  This was the first armed resistance against British military authority in America and as such can be seen as the first shots fired in the American Revolution.

Smith’s Rebellion is also significant for other notable reasons as well. It is here ten years before Lexington and Concord that Americans first conceive of ruling themselves and determining an American not British Common Law. This derives from their understanding of the law as a contract between the government, and those governed to protect each person’s rights to Life, Liberty and Property.  When this contract was breached the consent of the governed could be rescinded and government overthrown to create a new government that would operate under those principles.  It is from this consideration that Justice William Smith and his cousin James Smith give birth to the beliefs that become the Second Amendment to the U. S. Constitution.

Pennsylvania was unique in that there was no standing militia because of the colonies Quaker Proprietorship.  On one occasion in 1763 the settlers of the Conococheague Settlement had raised their own militia, The Sideling Hill Volunteers.  These men would become James Smith’s Black Boys so called because of painting their faces black to avoid detection of their identity.

In 1764 when Pennsylvania was again debating the issue of raising a militia for self-defense Justice William Smith had raised a petition that had 3,000 signatures on it demanding that no one, not even Quakers, should be exempt. Justice William Smith argued that everyone should be armed to defend themselves and that everyone should be obligated to join the militia in defense of the colony since everyone benefitted from residing in Pennsylvania.

An individual’s right of self-defense would be Justice William Smith’s defense of Sideling Hill and the Black Boys when he was called before Governor John Penn on July 30,  1765 because of the ongoing rebellion and pressure from General Gage to take action.  Unfortunately government then did what it often does now, it just made the illegal trade in weapons with the Indians legal on June 3, 1765 so the Smith’s had only the issue of the confiscation of the nine rifles left because this took the issue of self-defense away.

William Smith argued that these rifles were confiscated illegally, because the men were defending themselves and because the men were found innocent in a court of law.  This meant that the weapons were being detained illegally as late as November of 1765.  The illegal confiscation and detention of these weapons forms the reason for the second and final siege of Ft. Loudoun.

Years later, in 1776 when Pennsylvania is writing a new state constitution because of our Revolution, James Smith became a delegate from West Moreland County.  As an aside William Duffield another of Smith’s rebels was a delegate from Cumberland County.  Terry Bouton in Taming Democracy, notes that James “Black Boy Jimmy” Smith as opposed to the James Smith who was a magistrate and was from York and was also a delegate,  had written a rough draft of a right to bear arms.

This was in response to events that had taken place during Smith’s Rebellion and with the colonies failure to adequately provide for their defense.  Historically, the right to bear arms went back to the English Bill of Rights of 1689 as article 7.  The need for a right to bear arms stems from various militia acts including the London Militia Act of 1662 in which Protestants were to be disarmed.

James Smith’s rough draft would become much of the final draft of the Pennsylvania Right to Bear Arms in 1776. This law essentially was for self-defense and defense of the state. Both James Smith and William Duffield voted for this right to bear arms which was the first such act in the colonies.

When writing the American Bill of Rights to prevent future Revolutions, James Madison added the line to provide for a well regulated militia (from Virginia’s Right to Bear Arms) to Pennsylvania’s Right to Bear Arms law which has created controversy about the meaning of America’s Right to Bear Arms ever since.