An in-depth case looking at the right to keep and bear arms

Firearms Freedom.net ^ | 2000 | Brian Brunner

[NovemberCharlie]

Highlights:

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SUMMARY OF THE ARGUMENT

Defendants will show the following:

1. that there is a broad, fundamental Right to Arms, which the Second Amendment to the Constitution of the United States declares uninfringeable and preserves to the people as an right belonging to each citizen of the United States; (but which Right the Second Amendment itself neither creates nor limits (which Right New York States Civil Rights Law § 4 echoes without either enlarging or diminishing));
2. that the states are forbidden, by the Constitution of the United States, articles 1 and 2, and Amendment 2, from infringing the Right to Arms of the people generally, and by Amendment Fourteen § 1 sentence 2 clause 1, from invading the rights of citizens of the United States specifically (noting immunities and rights are more identical than distinct);
3. that being Armed as a Right, including being armed with handguns, is (historically) recognized by the state of New York;
4. that handguns are Arms preserved to the people under the Constitution of the United States, Amendments 2 and 14 § 1 sentence 2 clause 1;
5. that this statute violates the Right to Arms as above made inviolable by the state; and
6. that this statute is therefore unconstitutional, null, and void.

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Of particular note: the table of authorities, which indexes the arguments:

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TABLE OF AUTHORITIES

1. Rights
   1. The Natural Right of Self Defense.
   2. The Common Law Right to Arms.
   3. The Right of Armed Resistance to Tyranny.
   4. The Several States and their Recognitions of the Right to Arms.
2. The Right to Arms under the United States Constitution
   1. U.S. Constitution and Bill of Rights: Ratification debates.
   2. U.S. Constitution, Language of Construction.
   3. U.S. Constitution, Construction, in general.
   4. U.S. Constitution, Preamble.
   5. U.S. Constitution, Art 1 § 8 cl 11.
   6. U.S. Constitution, Art 1 § 8 cl. 15 & 16.
   7. U.S. Constitution, Art 2 § 2 ¶ 1.
   8. U.S. Constitution, Amendment 2.
   9. U.S. Constitution, Amendment 9.
   10. Scorpions in a Bottle: Barron v. Baltimore
   11. Chains of Parchment: Dred Scott v. Sandford
   12. Slavery Renamed: The Black Codes.
   13. U.S. Constitution, Amendment 14 § 1.
3. Congress, the Second Amendment, and the Right of Arms.
   1. The Federal Militia Act (1792)
   2. The Freedmen’s Bureau Act of 1866
   3. The current Militia Law 10 USC 311 & 312.
   4. The National Firearms Act of 1934
   5. The Federal Firearms Act of 1938
   6. The 1941 Private Property Requisition Act The 1968 Gun Control Act
   7. The Consumer Product Safety Act of 1976-->
   8. The Report of the Subcommittee on the Constitution in 1982 The Firearms Owner Protection Act (FOPA) of 1986
   9. The Brady Law of 1993-->
   10. 18 USC 241 & 242.
   11. 42 USC 1983.
4. New York State and the Right of Arms
   1. Constitution of the State of New York, 1777, Art XL.
   2. New York State Bill of Rights.
   3. New York State Penal Code § 1.05.
   4. New York State Penal Code § 265.01 ¶ 1.
   5. New York State Penal Code § 265.01 ¶ 2.
   6. New York State Penal Code § 400.
5. Due Process
   1. The Right of Arms.

      A: Federal Cases

      1. Dred Scott v. Sandford (1858)
      2. U.S. v. Cruikshank (1875)
      3. Presser v. Illinois (1886)
      4. Beard v. U S (1895)
      5. Patsone v. Pennsylvania (1914)
      6. U.S. v. Miller (1939)
      7. Haynes v. U.S. (1968)
      8. Moore v. East Cleveland (1977)
      9. Lewis v. United States (1980)
      10. U.S. v. Verdugo-Urquidez (1990)

      B: State Court cases from other States.

      11. State v. Blocker, 291 Or. 255, -- -- -- P.2d -- -- -- (1981)
      12. State v. Kessler, 289 Or. 359, 614 P.2d 94, at 95, at 98 (1980).
      13. Schubert v. DeBard, 398 N.E.2d 1339, at 1341 (Ind. App. 1980)
      14. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App. 1975)
      15. City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745 (en banc 1972)
      16. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738 (N.M. App. 1971)
      17. State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952)
      18. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950)
      19. People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 246 (en banc 1936)
      20. Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d 678 (1928)
      21. People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922)
      22. State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)
      23. State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903)
      24. In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902)
      25. Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)
      26. Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878)
      27. Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871)
      28. Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846)
      29. Simpson v. State, 13 Tenn. 356, at 359-60 (1833)
      30. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)
   2. Exhaustion Prior Restraint.-->
   3. Equality before the Law. Self Incrimination.-->
   4. Conversion of Rights into Crimes. The Presumption of Innocence and the Burden of Proof.-->

[NovemberCharlie]

The full text is 91 pages long; you can reach it with the link in the header. I first stumbled on this a year ago, and saved it to my hard drive. A tad anal, you think? Not really; the site has a habit of disappearing, so I was not pleased when my computer suffered a self-inflicted lobotomy and wiped it out.

In any case, here it is again. Particularly interesting are the court cases and their analyses.

[NovemberCharlie]

Bang.

[THEUPMAN]

bump for later , looks like an interesting read

[conway]

",the right of the "people" to keep and bear arms shall not be infringed."

People: The masses of a community as opposed to a specialized group.

[Gordian Blade]

For those of us who haven't been following this case: What did the defendant do to trigger it? What penalty is he (she?) going to face if the case is unsuccessful? Where does the case stand today?

[NovemberCharlie]

I'm not sure, but this message on the site may answer some of your questuions.

Update

[Gordian Blade]

OK, what I get from that is that no lawyer wants to touch this case on the Constitutional merits. Neither do the courts. They'd like the guy to pay a $50 fine for a reduced charge (disorderly conduct) and have the whole thing just disappear.

I must say that I find it quite frustrating that it's impossible in our legal system to get a definitive answer to what is a very important Constitutional question without going through a lot of nonsense that the courts really would rather not deal with. They'd rather keep it ambiguous. Personally, I think the Constitution is clear on this, at least to the extent of allowing a handgun. Whether it allows things like bazookas and stinger missiles is another question.

[supercat]

OK, what I get from that is that no lawyer wants to touch this case on the Constitutional merits. Neither do the courts. They'd like the guy to pay a $50 fine for a reduced charge (disorderly conduct) and have the whole thing just disappear.

It is important to note that neither Miller nor co-defendant Layton was ever actually convicted of possessing a sawed-off shotgun. I can think of no other case the government is so widely claimed to have 'won' without getting a conviction or even plea-bargaining for something more than "time served".

I must say that I find it quite frustrating that it's impossible in our legal system to get a definitive answer to what is a very important Constitutional question without going through a lot of nonsense that the courts really would rather not deal with. They'd rather keep it ambiguous. Personally, I think the Constitution is clear on this, at least to the extent of allowing a handgun. Whether it allows things like bazookas and stinger missiles is another question.

First of all, I think it would be possible to make a Second-Amendment argument against certain types of concealable handguns on the basis that no military uses nor has used them nor anything particularly similar. The anti-gun forces have not done so, however, because doing so would require acknowledging that the Second Amendment was written to protect things like AR-15's and even M-16's.

IMHO, smaller handguns are protected much more by the Fourteenth Amendment than by the Second; even there, I can't see any constitutional basis for preventing a state from restricting or outlawing certain small handguns provided that (1) the same restrictions applied to everyone in the state, including politicians, police, etc.; (2) there were not other laws or practices which caused such firearms to be the only things someone practically could carry.

Finally, if a group like GOA decides to launch a real Second-Amendment case, they should follow the lead of Thompson/Center Arms: build or buy a gun which should not require a transfer tax but which the BATF claims does (for a straight Second-Amendment case, an M16A1 would be ideal, as there can be no doubt that that is a militia weapon), pay the tax on said firearm, and then sue the government for a refund of said tax. Thompson/Center Arms took that approach to force the BATF to let them sell a kit consisting of a handgun receiver, a 14" barrel, a 16.1" barrel, and a shoulder-stock; the BATF claimed that the kit constituted a "short-barreled rifle" but the Supreme Court held that it did not. Wonder why Brady et al. won't admit that the 'pro-gun side' won a case at the Supreme Court level?

[TEXICAN II]

My recent looks into my own genealogy led me to ask myself, "What would the government, circa 1790-1800, have done if my g-g-g-grandfather, the famous Gen.---, had posessed & used cannon ( on his own plantations, with no threat or harm to anyone else or their property )????? The same general ( & other ancestors ) provided arms & uniforms for troops, so why could he( they ) not purchase & maintain their own private arsenal???? Here in Texas, many of the normal constraints of game & fish law are not enforcable against persons on their own property, under certain restrictions. Ditto alchohol & other such items & their use. Why must private property, confined to personal real estate, continue to be forbidden? The ultimate Libertarian question, perhaps. I find the lack of inherant moral constraint ( within supposed Libertarian philosophy ) to be unjustified, in light of the corruptable human spirit. However, someone like a Neal Boortz, & his proposed interpretations of proper US Gov behavior, is very hard to refute. Without advocating any violation of any law, I must ponder, who is the Imperial US Federal Government ( that which is so clearly defined by THE LAW-US Constitution & the debates of the Federalist Papers, etc ) to tell us what we may & may not possess, on our own premises?

[Gordian Blade]

This is a really tough question and anyone who tells you he has an easy answer is wrong. Yes, you should have maximum discretion to act on your property as you wish. But no right is unlimited. If you dump poison on your property, it can get into the groundwater and then affect my property. If you build a big enough bomb on your property, or a cannon pointed in my direction, it sure as heck is going to get my attention.

What really yanks my chain is a restriction on my liberty based on a low probablility that I might misuse it. Almost anything can be misused, and most things have been misused by someone, somewhere, sometime. For reasons either misguided or sinister, legislators attempt to safeguard us from everything. The increase in safety is marginal (or negative for many gun control laws); the decrease in liberty is substantial.

Government at all levels absorbs 1/3 to 1/2 of everyone's income. I find that unacceptable; but I know a lot of people who find it acceptable, even desirable. As I have posted several times, the problem isn't so much the ever-growing government, but the people who don't mind it and actually support the idea (if they think they can get something out of it). In effect, the majority have voted to enslave and/or restrict the liberty of everyone (to a degree) in exchange for (supposed) security. Unfortunately, it's even worse in other parts of the world.