Posted on 02/12/2002 4:22:44 AM PST by vannrox
Regards
I. Text of the Second Amendment and Related Contemporaneous Provisions
II. Calls for the Right to Keep and Bear Arms from State Ratification Conventions
III. "The Right of the People" in Other Bill of Rights Provisions
IV. Some Other Contemporaneous Constitutional Provisions With a Similar Grammatical Structure
V. 18th- and 19th-Century Commentary
A. William Blackstone, Commentaries on the Laws of England (1765)
B. St. George Tucker, Blackstone's Commentaries (1803)
C. Joseph Story, Familiar Exposition of the Constitution of the United States (1840)
D. Thomas Cooley, Principles of Constitutional Law (1898)
VI. Supreme Court Cases
A. United States v. Miller, 307 U.S. 174 (1939)
B. Dred Scott v. Sandford, 60 U.S. 393, 416-17, 449-51 (1857)
C. United States v. Cruikshank, 92 U.S. 542, 551 (1876)
D. Presser v. Illinois, 116 U.S. 252, 264-66 (1886)
E. Logan v. United States, 144 U.S. 263, 286-87 (1892)
F. Miller v. Texas, 153 U.S. 535, 538-39 (1894)
G. Dissent in Brown v. Walker, 161 U.S. 591, 635 (1896) (Field, J., dissenting)
H. Robertson v. Baldwin, 165 U.S. 275, 280 (1897)
I. Maxwell v. Dow, 176 U.S. 581, 597 (1900)
J. Trono v. United States, 199 U.S. 521, 528 (1905)
K. Twining v. New Jersey, 211 U.S. 78, 98 (1908)
L. United States v. Schwimmer, 279 U.S. 644 (1929)
M. Dissent in Adamson v. California, 332 U.S. 46, 78 (1947) (Black, J., dissenting)
N. Johnson v. Eisentrager, 339 U.S. 763, 784 (1950) (Jackson, J., for the majority)
O. Knapp v. Schweitzer, 357 U.S. 371, 378 n.5 (1958) (Frankfurter, J., for the majority)
P. Konigsberg v. State Bar, 366 U.S. 36, 49 & n.10 (1961) (Harlan, J., for the majority)
Q. Dissent in Adams v. Williams, 407 U.S. 143, 149-51 (1972) (Douglas, J., dissenting, joined by Marshall, J.)
R. Lewis v. United States, 445 U.S. 55, 65 (1980)
S. United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)
T. Casey v. Planned Parenthood, 505 U.S. 833, 848 (1992) (dictum)
U. Concurrence in Printz v. United States, 117 S.Ct. 2365, 2385-86 (1997) (Thomas, J., concurring)
V. Dissent in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998) (Ginsburg, J., joined by Rehnquist, C.J., and Scalia and Souter, JJ.)
VII. Relevant Statutes
A. Militia Act of 1792
B. The currently effective Militia Act
VIII. State Constitutional Right to Keep and Bear Arms Provisions (Current and Superseded)
A. Sorted by state, though including both current and superseded provisions
B. Sorted by date, from 1776 to the present
These materials can be useful for discussing how the Second Amendment ought to be interpreted. I intentionally include more materials here than any teacher will likely use, to give people flexibility in picking and choosing.
Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
English Bill of Rights: That the subjects which are protestants may have arms for their defence suitable to their conditions and as allowed by law (1689). 1
Connecticut: Every citizen has a right to bear arms in defense of himself and the state (1818). 2
Kentucky: [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792). 3
Massachusetts: The people have a right to keep and to bear arms for the common defence (1780). 4
North Carolina: [T]he 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 (1776). 5
Pennsylvania: 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 (1776). 6
The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (1790). 7
Rhode Island: The right of the people to keep and bear arms shall not be infringed (1842). 8
Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796). 9
Vermont: [T]he people have a right to bear arms for the defence of themselves and 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 (1777). 10
Virginia: 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 governed by, the civil power. 11
Five of the states that ratified the Constitution also sent demands for a Bill of Rights to Congress. All these demands included a right to keep and bear arms. Here, in relevant part, is their text:
New Hampshire: Twelfth[:] Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.
Virginia: . . . Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.
New York: . . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State; That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection. That Standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, excess in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.
North Carolina: Almost identical to Virginia demand, but with "the body of the people, trained to arms" instead of "the body of the people trained to arms."
Rhode Island: Almost identical to Virginia demand, but with "the body of the people capable of bearing arms" instead of "the body of the people trained to arms," and with a "militia shall not be subject to martial law" proviso as in New York.
First Amendment: Congress shall make no law . . . abridging . . . the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .
Ninth Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
Tenth Amendment: [Speaking of "the powers . . . of the people" rather than "the right . . . of the people"] The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Rhode Island Free Press Clause: The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty . . . . 14
Massachusetts Free Press Clause: The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth. 15
Massachusetts Speech and Debate Clause: The freedom of deliberation, speech and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation of prosecution, action or complaint, in any other court or place whatsoever. 16
New Hampshire Venue Clause: In criminal prosecutions, the trial of the facts in the vicinity where they happen is so essential to the security of the life, liberty, and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . . 17
In the three preceding articles we have taken a short view of the principal absolute rights [personal security, personal liberty, private property] which appertain to every Englishman. But in vain would these rights be declared, ascertained, and protected by the dead letter of the laws, if the constitution had provided no other method to secure their actual enjoyment. It has therefore established certain other auxiliary subordinate rights of the subject, which serve principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.
1. The constitution, powers, and privileges of parliament . . . .
2. The limitation of the king's prerogative . . . .
3. . . . [A]pplying to the courts of justice for redress of injuries.
4. . . . [T]he right of petitioning the king, or either house of parliament, for the redress of grievances.
5. The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute . . . and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.
. . . [T]o vindicate [the three primary rights], when actually violated or attacked, the subjects of England are entitled, in the first place, to the regular administration and free course of justice in the courts of law; next, to the right of petitioning the king and parliament for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defence.
[Annotation to Blackstone's discussion of the right to have arms as the fifth and last auxiliary right:]
The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence [fn40] suitable to their condition and degree, and such as are allowed by law. [fn41]
[fn40] The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government.
[fn41] Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England. The commentator himself informs us, "that the prevention of popular insurrections and resistence [sic] to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws."
[A separate discussion in an Appendix, specifically about the Second Amendment.]
A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed.
This may be considered as the true palladium of liberty . . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.
In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty. [Editorial note: I understand that this last sentence is considered by some historians to be an exaggeration. 20]
The next amendment is, "A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.
The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.
Section IV. -- The Right to Keep and Bear Arms.
The Constitution. -- By the Second Amendment to the Constitution it is declared that "a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."
The amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
The Right is General. -- It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.
Standing Army. -- A further purpose of this amendment is, to preclude any necessity or reasonable excuse for keeping up a standing army. A standing army is condemned by the traditions and sentiments of the people, as being as dangerous to the liberties of the people as the general preparation of the people for the defence of their institutions with arms is preservative of them.
What Arms may be kept. -- The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression, and the secret carrying of those suited merely to deadly individual encounters may be prohibited.
These are pretty much all the opinions that mention the Amendment, even in passing. Few teachers will want to assign them all, but we include them to give readers maximum choice.
[The only extensive modern discussion of the Amendment]
An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton "did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length [contrary to the National Firearms Act] . . . ."
A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution -- "A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed." The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.
. . .
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
The Constitution as originally adopted granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. [Citing further sources, e.g., the Virginia Act of October 1785 providing for a Militia of "all free male persons between the ages of eighteen and fifty years," with certain exceptions.]
Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.
[In the course of explaining that the Bill of Rights -- including the Due Process Clause, which the majority concluded prevented Congress from interfering with slaveowners' property rights in their slaves -- limited Congressional action in the Territories, the Court said:] [N]o one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding. These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care.
[Earlier in the opinion, in holding that blacks generally could not be U.S. citizens, the Court said:] [I]t cannot be believed that the large slaveholding States regarded [blacks] as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety.
It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.
[Cruikshank and others were tried under the Civil Rights Act of 1870 for lynching two blacks. The Act barred people for conspiracy to "prevent or hinder [a person's] free exercise and enjoyment of any right or privilege granted or secured to him by the constitution or laws of the United States, or because of his having exercised the same." The charges included, among other things, that the defendants conspired to interfere with the victims' rights to peaceably assemble and to keep and bear arms. The Court threw out the indictment, saying:]
The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose." The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government.
It "derives its source," to use the language of Chief Justice Marshall, in Gibbons v. Ogden, "from those laws whose authority is acknowledged by civilized man throughout the world." It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.
The first amendment to the Constitution prohibits Congress from abridging "the right of the people to assemble and to petition the government for a redress of grievances." This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. It is now too late to question the correctness of this construction. As was said by the late Chief Justice, in Twitchell v. The Commonwealth, "the scope and application of these amendments are no longer subjects of discussion here." They left the authority of the States just where they found it, and added nothing to the already existing powers of the United States.
The particular amendment now under consideration assumes the existence of the right of the people to assemble for lawful purposes, and protects it against encroachment by Congress. The right was not created by the amendment; neither was its continuance guaranteed, except as against congressional interference. For their protection in its enjoyment, therefore, the people must look to the States. The power for that purpose was originally placed there, and it has never been surrendered to the United States.
The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for any thing else connected with the powers or the duties of the national government, is an attribute of national citizenship, and, as such, under the protection of, and guaranteed by, the United States. The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances. If it had been alleged in these counts that the object of the defendants was to prevent a meeting for such a purpose, the case would have been within the statute, and within the scope of the sovereignty of the United States. Such, however, is not the case. The offence, as stated in the indictment, will be made out, if it be shown that the object of the conspiracy was to prevent a meeting for any lawful purpose whatever.
The second and tenth counts are equally defective. The right there specified is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States.
[State law barred "any body of men, other than the organized militia of the state and the troops of the United States, from associating as a military company and drilling with arms in any city or town of the state"; the Court held:] The first [claim is based on] the second amendment, which declares: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms.
But a conclusive answer to the contention that this amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state. It was so held by this court in the case of U. S. v. Cruikshank, in which the chief justice, in delivering the judgment of the court, said that the right of the people to keep and bear arms "is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government . . . ." . . .
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect.
[The Court was faced with a question about the scope of the conspiracy statute involved in Cruikshank.] In U.S. v. Cruikshank . . . (1) It was held that the first amendment of the constitution . . . did not grant to the people the right peaceably to assemble for lawful purposes, but recognized that right as already existing, and did not guaranty its continuance except as against acts of congress . . . .
(2) It was held that the second amendment of the constitution, declaring that "the right of the people to keep and bear arms shall not be infringed," was equally limited in its scope.
[Miller challenged a law banning the carrying of dangerous weapons on the person.] In his motion for a rehearing, however, defendant claimed that the law of the state of Texas forbidding the carrying of weapons, and authorizing the arrest, without warrant, of any person violating such law, under which certain questions arose upon the trial of the case, was in conflict with the second and fourth amendments to the constitution of the United States, one of which provides that the right of the people to keep and bear arms shall not be infringed, and the other of which protects the people against unreasonable searches and seizures.
We have examined the record in vain, however, to find where the defendant was denied the benefit of any of these provisions, and, even if he were, it is well settled that the restrictions of these amendments operate only upon the federal power, and have no reference whatever to proceedings in state courts. And if the fourteenth amendment limited the power of the states as to such rights, as pertaining to citizens of the United States, we think it was fatal to this claim that it was not set up in the trial court.
[The question had to do with the scope of a witness's Fifth Amendment privilege against self-incrimination. Field wrote:] As said by counsel for the appellant: "The freedom of thought, of speech, and of the press; the right to bear arms; exemption from military dictation; security of the person and of the home; the right to speedy and public trial by jury; protection against oppressive bail and cruel punishment, -- are, together with exemption from self- crimination, the essential and inseparable features of English liberty. Each one of these features had been involved in the struggle above referred to in England within the century and a half immediately preceding the adoption of the constitution, and the contests were fresh in the memories and traditions of the people at that time."
[Robertson challenged, under the Thirteenth Amendment, enforcement of a mariner's labor contract. The Court said:] But we are also of opinion that, even if the contract of a seaman could be considered within the letter of the thirteenth amendment, it is not, within its spirit, a case of involuntary servitude. The law is perfectly well settled that the first 10 amendments to the constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions, arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.
Thus, the freedom of speech and of the press (article 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (article 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant's motion; nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment. . . . It is clear . . . that the [Thirteenth] amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional, such as military and naval enlistments, or to disturb the right of parents and guardians to the custody of their minor children or wards. . . .
[The Court concluded that the Jury Trial Clause wasn't incorporated into the Fourteenth Amendment, and thus didn't bound the states.] In Presser v. Illinois, it was held that the Second Amendment to the Constitution, in regard to the right of the people to bear arms, is a limitation only on the power of Congress and the national government, and not of the states. It was therein said, however, that as all citizens capable of bearing arms constitute the reserved military force of the national government the states could not prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
[The question was whether an action of the Supreme Court of the Philippines -- then a U.S. possession -- violated an act of Congress applying most of the Bill of Rights to the Philippines.] The whole language [of the Act] is substantially taken from the Bill of Rights set forth in the amendments to the Constitution of the United States, omitting the provisions in regard to the right of trial by jury and the right of the people to bear arms, and containing the prohibition of the 13th Amendment, and also prohibiting the passage of bills of attainder and ex post facto laws.
[Almost identical language can be found in Kepner v. United States, 195 U.S. 100, 123-24 (1904).]
[The Court concluded that the privilege against self-incrimination wasn't incorporated into the Fourteenth Amendment, and thus didn't bound the states.] [T]he question [of incorporation] is no longer open in this court. The right of trial by jury in civil cases, guaranteed by the 7th Amendment, and the right to bear arms, guaranteed by the 2d Amendment [citing Presser v. Illinois], have been distinctly held not to be [incorporated].
[Schwimmer was denied citizenship because she refused to swear to "if necessary, . . . take up arms in defense of this country." In the process of upholding the denial of citizenship, the Court argued as follows:]
The common defense was one of the purposes for which the people ordained and established the Constitution. It empowers Congress to provide for such defense, to declare war, to raise and support armies, to maintain a navy, to make rules for the government and regulation of the land and naval forces, to provide for organizing, arming, and disciplining the militia, and for calling it forth to execute the laws of the Union, suppress insurrections and repel invasions; it makes the President commander in chief of the army and navy and of the militia of the several states when called into the service of the United States; it declares that, a well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed. . . .
[The Court reaffirmed that the privilege against self-incrimination wasn't incorporated into the Fourteenth Amendment, and thus didn't bound the states.] Later, but prior to the Twining case, this Court decided that the following were not "privileges or immunities" of national citizenship, so as to make them immune against state invasion: the Eighth Amendment's prohibition against cruel and unusual punishment, In re Kemmler; the Seventh Amendment's guarantee of a jury trial in civil cases, Walker v. Sauvinet; the Second Amendment's "right of the people to keep and bear arms * * *," Presser v. Illinois; the Fifth and Sixth Amendments' requirements for indictment in capital or other infamous crimes, and for trial by jury in criminal prosecutions . . . .
[The Court was arguing that the Fifth Amendment doesn't apply to alien enemies on occupied alien territory.] If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it, the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "were-wolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.
[The Court reaffirmed that the privilege against self-incrimination wasn't incorporated into the Fourteenth Amendment, and thus didn't bound the states.] By 1900 the applicability of the Bill of Rights to the States had been rejected in cases involving claims based on virtually every provision in the first eight Articles of Amendment. See, e.g., Article I: Permoli v. First Municipality No. 1 (free exercise of religion); United States v. Cruikshank (right to assemble and petition the Government); Article II: United States v. Cruikshank (right to keep and bear arms); Article IV: . . . .
[This was a Free Speech Clause case; the majority was arguing for a narrower interpretation of the Clause than was the dissent.] At the outset we reject the view that freedom of speech and association, as protected by the First and Fourteenth Amendment, are "absolutes," not only in the undoubted sense that where the constitutional protection exists it must prevail, but also in the sense that the scope of that protection must be gathered solely from a literal reading of the First Amendment. [fn10]
[fn10] That view, which of course cannot be reconciled with the law relating to libel, slander, . . . and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: [quoting the First Amendment]. But as Mr. Justice Holmes once said: "[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, 233 U.S. 604. In this connection also compare the equally unqualified command of the Second Amendment: "the right of the people to keep and bear Arms shall not be infringed." And see United States v. Miller, 307 U.S. 174.
[See also Justice Harlan's roughly contemporaneous opinion in Poe v. Ullman, quoted below in item 19, which seems to treat the right as an individual one.]
[This was a Fourth Amendment case, not a Second Amendment one. Douglas wrote:] My views have been stated in substance by Judge Friendly dissenting in the Court of Appeals. Connecticut allows its citizens to carry weapons, concealed or otherwise, at will, provided they have a permit. Connecticut law gives its police no authority to frisk a person for a permit. Yet the arrest was for illegal possession of a gun. The only basis for that arrest was the informer's tip on the narcotics. Can it be said that a man in possession of narcotics will not have a permit for his gun? Is that why the arrest for possession of a gun in the free-and-easy State of Connecticut becomes constitutional?
The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.
The leading case is United States v. Miller, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia." "The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion."
Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. . . .
[Lewis was convicted of being a felon in possession of a firearm, and challenged the conviction on various statutory grounds, on the ground that his prior felony conviction was uncounseled and therefore shouldn't be considered, and on constitutional grounds. The Court held:]
The firearm regulatory scheme at issue here is consonant with the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment if there is "some `rational basis' for the statutory distinctions made . . . or . . . they `have some relevance to the purpose for which the classification is made." [fn1]
Section 1202(a)(1) clearly meets that test. . . .
[fn1] These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 818, 83 L.Ed. 1206 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) (the latter three cases holding, respectively, that § 1202(a)(1), § 922(g), and § 922(a)(6) do not violate the Second Amendment).
[The question here was whether the Fourth Amendment protected foreign citizens on foreign soil from unreasonable searches.]
For purposes of this case, therefore, if there were a constitutional violation, it occurred solely in Mexico. . . . The Fourth Amendment . . . text, by contrast with the Fifth and Sixth Amendments, extends its reach only to "the people."
Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid [an] awkward rhetorical redundancy," "the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the People of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1 ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble") (emphasis added); Art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States").
While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.
Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amdt. 9. As the second Justice Harlan recognized: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." Poe v. Ullman, [367 U.S. 497, 543 (1961)] (opinion dissenting from dismissal on jurisdictional grounds).
[The Harlan quote is also quoted by the plurality in Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977); by Justice Stevens's dissent in Albright v. Oliver, 510 U.S. 266, 306-07 (1994); and by Justice Stewart's concurrence in Roe v. Wade, 410 U.S. 113, 169 (1973).]
The Court today properly holds that the Brady Act [a federal gun control law] violates the Tenth Amendment in that it compels state law enforcement officers to "administer or enforce a federal regulatory program." . . .
The Second Amendment . . . appears to contain an express limitation on the government's authority. That Amendment provides: "[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. [fn1] If, however, the Second Amendment is read to confer a personal right to "keep and bear arms," a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. [fn2] As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms "has justly been considered, as the palladium of the liberties of a republic."
[fn1] Our most recent treatment of the Second Amendment occurred in United States v. Miller, in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.
[fn2] Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the "right to keep and bear arms" is, as the Amendment's text suggests, a personal right. [Citing various books and articles.] Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. [Citing various other articles.] Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate.
[The question in the case was whether the statutory phrase "carries a firearm" is limited to carrying on the person, or also includes carrying in a car which the person is accompanying. The dissent said the phrase was limited to carrying on the person.]
At issue here is not "carries" at large but "carries a firearm." . . . Surely a most familiar meaning is, as the Constitution's Second Amendment ("keep and bear Arms") (emphasis added) and Black's Law Dictionary, at 214, indicate: "wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person."
Sec. 1. Be it enacted . . . That each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia . . . . That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder. . . .
Sec. 2. [Exempting the Vice President, federal judicial and executive officers, congressmen and congressional officers, custom-house officers and clerks, post-officers and postal stage drivers, ferrymen on post roads, export inspectors, pilots, merchant mariners, and people exempted under the laws of their states.] 23
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are --
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. 24
1. 1 Wm. & Mary sess. 2, ch. 2 (1689).
2. Ct. Const. art. I, § 17 (1818). Connecticut had no Constitution until 1818.
3. Ky. Const. art. XII, § 23 (1792).
4. Mass. Const. pt. 1, art. 17 (1780).
5. N.C. Const. Bill of Rights, § XVII (1776).
6. Penn. Const. Declaration of Rights, cl. XIII (1776).
7. Penn. Const. art. IX, § 21 (1790).
8. R.I. Const. art. I, § 22 (1842). Rhode Island had no Constitution until 1842.
9. Tenn. Const. art. XI, § 26 (1796).
10. Vt. Const. ch. I, art. 16 (1777).
11. Va. Const. art. I, § 13 (1776).
12. See The Complete Bill of Rights 181-83 (Neil H. Cogan ed. 1997).
13. See generally Eugene Volokh, The Commonplace Second Amendment, 73 NYU L. Rev. 793 (1998) (giving more such provisions, and discussing them in more detail).
14. R.I. Const. art. I, § 20 (1842).
15. Mass. Const. pt. I, art. XVI (1780); see also N.H. Const. pt. I, art. XXII (1784) ("The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved").
16. Mass. Const. pt. I, art. XXI (1780); see also N.H. Const. pt. I, art. XXX (1784) (same); Vt. Const. chap. I, art. XVI (1786) (same, but with "either house of" omitted).
17. N.H. Const. pt. I, art. XVII (1784).
18. You may want to remind the students that William Blackstone was the leading British legal commentator of the 1700s, and was widely read in the Colonies; he was writing about the more limited right found in the English Bill of Rights.
19. St. George Tucker's Blackstone's Commentaries: With Notes of Reference, to the Constitution and Laws, of the Federal Government of the United States; and of the Commonwealth of Virginia (1803), contained the earliest prominent commentary on the U.S. Constitution. Tucker taught law at the University of William and Mary, and was a Virginia state judge. This material is from p. 143 of book 1 and p. 300 of the Appendix.
20. See, e.g., Malcolm, supra note 29, at 122-34.
21. U.S. Supreme Court Justice Joseph Story was, of course, the leading constitutional commentator of the early 1800s.
22. Michigan Supreme Court Justice Thomas Cooley was probably the leading constitutional commentator of the late 1800s.
23. 2nd Cong. sess. I, ch. 33 (1792).
24. 10 U.S.C. § 311 (enacted 1956, amended 1958).
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As my hubby watched a bit of the woman's biathalon, he said, "women and guns....sexy." I grabbed the remote at that point :-))
Freedom Is Worth Fighting For !!
The Right Of The People To Keep And Bear Arms Shall Not Be Infringed !!
An Armed Citizen, Is A Safe Citizen !!
No Guns, No Rights !!
Molon Labe !!
David
A recent status report from Brian Brunner
BRIAN TIMOTHY BRUNNER
and
DEBRA LOUISE BRUNNER
v.
THE STATE OF NEW YORK.
Motion to Vacate a Judgement of Guilty subsequent to the entry thereof (CPL § 440.10 ¶ 1) citing subsection (h) (The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.)
All of which are active in the prosecution of an unconstitutional statute. -->
Defendants Brian Timothy Brunner and Debra Louise Brunner prosecuted for the "crime" of Keeping and Bearing Arms (Penal Code §265.01 ¶ 1) enter a motion to vacate the judgement entered therefrom by reason of violation of rights secured to the defendants under the Constitution of the United States, Amendment 2.
Whereas this subject is currently in a maelstrom of politically motivated disinformation, vicious statutes upheld by defective reasonings, and clouded over with alarmist propaganda, Defendants have listed everything they can find pertinent to their Motion under the doctrine, that, if all of these things already are known by all, "God may know, but the record must show."
| TABLE OF CONTENTS | 1 |
| TABLE OF AUTHORITIES | 2 |
| STATEMENT OF JURISDICTION | 3 |
| STATEMENT OF THE ISSUES | 4 |
| SUMMARY OF THE ARGUMENT | 7 |
| CITED AUTHORITIES | 7 |
| ARGUMENT | 118 |
| CONCLUSION | 113 |
| BIBLIOGRAPHY | 113 |
A: Federal Cases
B: State Court cases from other States.
Whereas this matter
The criminal statute prosecuted against defendants (§ 265.01 Criminal Possession of a Weapon in the Fourth Degree ¶ 1) makes a class A misdemeanor of mere possession of a firearm, even is such Arm is kept peaceably in one's home, and there are no prior or surrounding issues. No action to harm, nor intent to harm the person, property, peace, or reputation of any persons, property, or institutions is required to levy this statute upon possessors of a handgun. Criminal Possession of a Weapon Fourth is a "Serious Offense" for state statutes that trigger upon such.
The applicable "Definitions" (§ 265.00 ¶ 3) declares that "firearm" as used in § 265.01 ¶ 1 shall mean any pistol or revolver. Since neither pistol nor revolver have any further definition, they take the common and Federal definition, in which case automatic (meaning semi-automatic) and single-shot break-action handguns and revolvers are pistols. -->
Class A misdemeanors are punishable by confinement up to one year in the County Jail, and a fine of up to $1,000.00. After conviction under this statute,
Defendants observe, this total disarmament is a bitterly severe "fine or amercement", in excess of the limitation given in Amendment 8 to the Constitution of the United States, and in the New York State Civil Rights Law § 11 ("Fines must be reasonable and imposed only for cause. No citizen of this state ought to be fined or amerced ((1) fined arbitrarily; (2) punished, generally) without reasonable cause, and such fine or amercement should always be proportioned to the nature of the offense.") above and beyond being, en toto, an invasion of U.S. Constitution Amendment 2 and an abridgment of immunities protected under U.S. Constitution Amendment 14 § 1.
Therefore, the statute at bar is making a crime of the possession of a handgun, but the matter before the Court is the entire destruction of the personal Right of Arms,
In addition to the criminal prohibition statutes in § 265, § 400 provides for license, permit, and registration, for firearms and firearms owners. The process is long, invasive, requires the applicant to prove worthiness and need, requires (inter alia) license holders to inform the Police of their every relocation (as if they were Registered Sex Offenders). Results of application for the license are not guaranteed even to persons concerning whom there are no reasons to deny. In sum, and as has been asserted repeatedly by state Courts,we have no right to the § 400 license. Therefore it is not a license (nor "reasonable regulation") upon a right. § 400, therefore, does not cure the invasion of the Right to Arms, providing as it does only uncertain, fragile, and limited, relief from prosecutions under § 265.01 ¶ 1 for mere possession of a handgun.
Other sections creating relief of disability for offenders against either ¶ 1 or ¶ 4 of § 265.01 are as discretionary as obtaining relief from disability for felony penalties (in fact it is the same section) and need no consideration here beyond noting that New York statutes treat these misdemeanors as other states treat felonies for the purpose of destroying the Right to Arms.
Because the matter at bar is the invasion and destruction of the Right of Arms, the statute at bar, § 265.01 ¶ 1 together with § 400 are, in this Motion, spoken of as though they were adjoining parts of the same section and paragraph, with language in this Motion addressing prohibition, penalty, crime, and like language indicating § 265.01 ¶ 1 "firearm", and registration, license, permit, apply, revoke, renew, permission, and the like language in this Motion referencing § 400. These sections will be referred to hereafter as "this statute" or words clearly of the same meaning except as necessary to avoid confusion.
§ 265.01 ¶ 1 places the same prohibition on several other weapons and devices as upon firearms. The prohibitions all lack discernible reason, and the entire paragraph is subject to challenge from several vantages, but challenge(s) against the other items is not before the Court in this matter. The statute at bar centers on the word "firearm" in § 265.01 ¶ 1. References to the other items prohibited will be made as necessary and proper in the labor of showing the hysterical nature of the statute at bar, and it's untenable invasion of the matter at bar.
§ 265.01 ¶ 2 lists a few items, in broad terms, and pronounces the same penalty as § 265.01 ¶ 1 with one crucial difference: Possession of the second set of items is a crime only when possessed "with intent to use the same harmfully upon another" (mens rea). References to § 265.01 ¶ 2 will be made as necessary and proper in the labor of showing the corrupt state of mind manifest in the statute at bar.
§ 1.05 of the penal codes declares the cause for the penal statutes, and inspection of § 1.05 reveals § 265.01 ¶ 1 "firearm" to be improper as a penal statute. § 1.05 will be inspected to the extent necessary and proper to show this.
As currently constituted and enforced against Defendants, this statute invades and destroys the Right of Arms.
Furthermore, this statute defies several points whereupon the State is restrained. Specifically, this Statute invades:
Furthermore, this Statute
and for any and all reasons listed above, is unconstitutional and unenforceable.
Defendants seek
Defendants will show the following:
Each of the Authorities listed has bearing on the Right to Arms that We, the People of the United States, commonly held to be ours at the ratifications of the Constitution of the United States and of the Bill of Rights, which Right to Arms this statute violates.
It is a mistake to study the statute in abstraction of the right it violates; doing so invites legislative re-instantiation of the purpose of the statute as if to address a feature of its implementation. It is the purpose of this statute, which is disarmament of the citizens, that is unconstitutional.
Therefore, while these Authorities address clauses of the Constitution of the United States, state and federal statutory and case law constructions, stare decisis, and the like, they start with a study of the Right that is by this statute destroyed.
Taken together, these Authorities show
The Authorities are grouped by type, and (usually) by order of occurrence within that type, and are not to be construed as in an order of precedence, dependency, or priority.
Of primary importance is to note: The Right to Arms does not arise from the Constitutions, nor their Amendments, nor the laws and the judgements, and is not dependant on these instruments for it's existence. Rather, the Constitution and everything under it arose by our Arms clearing the King's government off this land. No power or authority constituted under the Consent of the People of the United States, or any of them, has ever been given wherewith to reduce the Right to Arms; only individuals can, by personal misconduct, alienate this right from themselves by destroying the trust their fellow citizens can have in them. Therefore, the statute at bar is unconstitutional and void -->
We made clear, by ratifying Amendment 2 to the Constitution of the United States, that where the powers assigned to the Government intersect with our peaceable exercise of our Right to Arms, the personal, individual Right to Arms shall prevail.
Defendants declare the trees, and call upon the Court to behold the forest.
Rights
A state cannot impose a license, tax, or fee on a constitutionally protected right. Murdock vs. Pennsylvania 319 US 105 (1942)
Can the same state simply prohibit the exercise of that right, and convert that right into a crime? Brunner vs. New York
Applicability: No statute obstructing this right has legitimacy. This statute does obstruct the right of self defense. This statute must go. We hold them to be insane who will not act, if they can, to resist mortal peril. We recognize this right of self defense for old and young, noble and vile. We except from this right only those who merit death for their own deeds (which is the root of the word felony, it's root being felo de se or "dead of it's own hand"). Self defense is neither a legal act, nor an illegal act; when arms speak, laws are silent (Cicero). -->
Our laws and judgements reflect this right. No law can be made or enforced which requires of the people that they surrender the right of self defense United States v. Gomez, 81 F.3d 846 (9th Cir. 1996); United States v. Panter, 688 F.2d 268 (5th Cir. 1982). Both are cases where Federal criminal convictions for Felon With A Gun were annulled by reason of self-defense. The felons were under violent assault, or credible threat against their lives, and in peril of their lives; they had sought all the help available, and had no luck getting Police protection in time; and a firearm was available to them through other persons in their critical moment. They took "temporary possession" for the time of peril, and cannot, per the federal Appellate Courts, be punished for it notwithstanding the federal law punishing felons for possession of firearms has no exception for self-defense. No exception in the law is required, because self defense cannot be made into a crime, and possession of forbidden weapons cannot be punished when possessed in the action of self-defense. That was the central holding in these above two cases.
Citizens of New York, by comparison, are forbidden to possess handguns; therefore we cannot have them around in our moment of extreme need. This statute forbids possession of the most legitimate means of self defense.
In Summary, Felons in other states have more liberty, regarding handguns, than do honest New Yorkers. They have to be convicted of a felony crime before they can be disarmed. We're born that way. Once restored to their Right of Arms, they remain that way barring a subsequent felony conviction. We have no such promise. Since many State employees are exempt from § 400 permit requirements, and may possess handguns without permit and without fear of arrest or prosecution (such persons are referred to hereafter as favored persons), their right of self-defense is measurably greater (significantly less destroyed) than ours, showing this statute to violate Amendment 14 § 1 sentence 2 cl 3 "nor deny to any person within its jurisdiction the equal protection of the laws". Argument is raised by the State that favored persons have a duty by reason of which they are armed of necessity, and that the permit requirements of this statute would, if enforced upon them, compromise their capacity to perform their duty. First: there is no law, nor any duty peculiar to favored persons, whose enforcement or performance requires the presence or presentation of a firearm; these favored persons are excused in presenting or using their firearms only in self defense. Thus, the duty of these favored persons which justifies their possession of firearms without permit, is the duty of self defense. We also have a duty of self defense, and this statute compromises our capacity to carry this duty into effect. Not only should we be as favored as the favored persons by reason of the 14th Amendment §1 sentence 2 cl 3 ("nor deny to any person within its jurisdiction the equal protection of the laws"), but because we have the same duty of self defense as the favored persons in consideration of which they are permitted without permit to possess firearms and bear them upon their persons. -->
Some facetiously assert that other weapons can provide the defense of self and home in lieu of handguns ("Let them eat cake" becomes "Let them wield shotguns"). Debra Brunner, a defendant in this case, is normally 105 pounds, and not able to wield most shotguns merely for their size and weight; lighter and smaller shotguns, even if legal, would have too great a recoil, but this is the smaller of the problems: In any emergency, Debra has only one hand with which to wield the weapon of defense, the other hand holds either a telephone or a 3-year-old, or both. Therefore, by definition, her right of self-defense, if she is to realize it, requires a one-hand-gun. Her .357mag revolver firing .38spl ammunition (or similar moderate powered pistol cartridge in a moderate weight handgun) is what the enjoyment of this most vital of all rights requires. As this statute makes a crime of possession of any one-hand-gun, Defendant(s) must desert their right of self-defense, or dare defiance of this statute.
There is no right higher than that of self-defense; therefore, whatever rights we reserved to ourselves under the Ninth Amendment to the Constitution of the United States, the right of Self defense must be acknowledged as the first of them.
This statute places an onerous burden on the right of Self Defense, violating the Ninth Amendment, and is therefore unconstitutional.
Essential to understanding either the American Revolution or the Constitution and it's Amendments, is understanding the shift in sovereignty from King to Commoner; the common law rights were touchstone to this struggle.
New York State Civil Rights Law § 2 declares Supreme sovereignty in the people. No authority can, on any pretence whatsoever, be exercised over the citizens of this state, but such as is or shall be derived from and granted by the people of this state. This is a limitation placed upon the state that it governs only by "the Consent of the Governed" (cf. Decl of Independence). The people do not consent to reduction of their rights under the common law, which are preserved them generally by the Constitution of the United States Amendment 9, and particularly the Right of Arms by Amendment 2 (which is echoed in New York Civil Rights Law § 4 A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed. This statute reduces the common law right to arms, in defiance of these Amendments of the Constitution of the United States, and New York State Civil Rights Law §§ 2 & 4; it is unconstitutional and void.
The Common Law
New York, as a state, came into existance by the will of the people to establish a government to protect their rights under the common law. Most states put some of these rights into a declaration or bill of rights in their constitution. New York did not, nor was doing to necessary. These common law rights are what the Ninth Amendment of the United States Constitution references: "The enumeration in this Constitution, of certain rights, shall not be construed to deny or disparage others, retained by the people." For a State to make a crime of the common law rights it was established to protect, is for a dog to rend and mangle the child it was bought and trained to protect. Betrayal by any other name...
The Common Law was Sacrosanct
It cannot be stressed too much, that we overthrew a tyrant, not to make room for a new tyrant, but to replace His Arrogant Majesty and His tyrannical government with a new scheme calculated to preserve and enlarge our common law rights. When we overthrew the King, we annulled His statutes. Did we then have no laws? We had the States, but they were creations of the King. The common man chose to make new governments (geographically aligned with the Kings grants and charters, but that was a convenience, not something we could not have changed), and charged these governments with the duty to bear lively and tender conscience to our common law rights, to protect them with statutes, and to enforce those protections with prosecutions against those who violated these statutes. If you can imagine to yourself a people who would abolish their own liberty by authorizing a government to reduce and destroy their own rights, and you've imagined a people vain and foolish, fit to be slaves, who never would have thrown off the tyranny of their King, because He was doing an excellent job of reducing their rights at the time. The fact that we threw down the King for the cause that he invaded our common law rights, and deserted them to invasion by others is proof that the governments we established had no authority to reduce our common law rights.
The Common Law Right to Arms
Sir William Blackstone, the English Jurist who put the English common law in print, said of the common law rights: That there are three great rights: Personal Security, Personal Liberty, and Private Property; there are five auxiliary rights necessary for the protection of the Three Great rights, the fifth
is that of having arms for their defence. ... And, lastly, to vindicate these rights (the three great rights and the other 4 auxiliary rights), when actually violated or attacked, ... [we] are entitled, in the first place, to the regular administration and free course of justice in the Courts of Law; next, to the right of petitioning ... for redress of grievances; and, lastly, to the right of having and using arms for self-preservation and defense. Blackstone, 1:144
The debates on the notion of revolution against our King, the proper organization of states, of the United States under the Articles of Confederation, and on the subject of ratification of the Constitution and a Bill of Rights, all took Blackstone's commentaries on the common law as it were Holy Scriptures of Political Thought. Nobody commented "Except the 'guns' part" for roughly 160 years (1775 - 1934).
High on our list of grievances against our King was his disarmament of the citizenry. We intended to be, and to remain, armed. We considered the Right of Arms an inalienable and fundamental right, invaded only by tyrants, who, by virtue of that invasion, were fit to be shot.
St George Tucker, who put the American common law to print in the form of commentaries on Blackstone's commentaries, said it thus:
Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. 1 Blackstone, Commentaries, St Geo. Tucker ed. 1803 pp300, see app.
Invasions of the Right of Arms
There have been disarmament statutes amongst us from the Kings to the Colonies to the States to the United States. The catalog of these laws is long, and irrelevant. Such laws all were aimed at keeping the poor powerless, keeping the despised subjugated, and keeping the powerful armed and unchallengeable. Such laws were enforceable in the United States only by the hand of vain pride & racist prejudice. Such laws became unenforceable in the United States or any of them, with the ratification of the 14th Amendment.
English laws, at times, restricted crossbows and firearms to landed gentry of moderate or greater wealth, a system similar to New York's pistol permits being freely accessible to wealthy and favored persons in counties with few other permits granted, but deniable to anybody under the blanket of the "good moral character" clause.
Colonial laws forbade Negroes, Mulattos, and Indians to possess arms, and put severe restrictions on their possession of the same. Laws pronounced heavy penalties on selling or providing arms to these despised peoples, but allowed white citizens full freedom to acquire, keep, and bear arms, and even required by law that they do so, similar to New York's system of permitting without permit that LEOs, Judges, and other favored persons may possess pistols, while laying heavy penalties on the common folk who should do the same without permit, and making such permits generally available to favored persons whilst generally denying the rest of the people.
Reconstruction era laws (1865 - 1875) in the Southern States, forbidding all but certain models of pistols, which happen to be large, expensive, and militiary, effectively disarmed the poor and especially disarming those excluded by Statute or Tradition from Police & Militia organizations (the Negro Freedmen) This is reminiscent of New York's practice of gracing few common folk with permits to bear as well as keep their handguns, whilst permitting without permit that favored persons may travel throughout the State with their arms on their persons. Did we overthrow formal Titles of Nobility, only to instantiate the same effect with badges and robes? Such laws are untenable, generally, under the Due Process clause of the 14th Amendment § 1 sentence 2 clause 2, and are explicitly defiant of the Equal Protection clause of the 14th Amendment § 1 sentence 2 clause 3 "nor deny to any person within its jurisdiction the equal protection of the laws".
The 39th Congress (1866-1867) considered disarmament laws, both those expressly racist and those which were enforced with racial bias or racist effect to be badges of slavery. They wrote the 14th Amendment to render all disarmament laws (in fact all such badges of slavery) unconstitutional. This statute is a disarmament statute, and is (barring the definition of who is Black) exactly the kind the 39th Congress had in mind to destroy in proposing the 14th Amendment.
Historical Revisionism against the common law
Modern-day legal "scholars" bend history to invent an "ancient tradition" of forbidding arms. Forest and Game laws, which reserved the privilege of hunting to the wealthy (see preceding paragraphs touching upon favored persons), are one group of cites. Such laws are repugnant to the Due Process and Equal Protection clauses of the 14th Amendment.
The Statute of Northampton (1328) is another favorite cite. Revisionists portray this law as forbidding carrying arms in public to the common man. It forbade riding about armed in terrorem populi (to the terror of the people) on pain of forfeiture of arms and armor, and commitment to prison. This is much like the statute at bar except we don't need to scare anybody to be threatened with forfeiture and jail. Sir John Knight came to bar to answer the charge of violating the Statute of Northampton for walking about town with handguns on his person, and was acquitted (Rex v. Knight 1686) because he was armed but not seeking to terrify the people.
William Hawkins, in Treatise of the Pleas of the Crown wrote of Rex v. Knight:
No wearing of arms is within the meaning of this statute unless it be accompanied with such circumstances as are apt to terrify the people; from when it seems clearly to follow, that persons of quality are in no danger of offending against this statute by wearing common weapons, or having their usual number of attendants with them for their ornament or defence, in such place, and upon such occasions, in which it is the common fashion to make use of them, without causing the least suspicions of an intention to commit any act of violence or disturbance of the peace. And from the same ground it also follows, that persons armed with privy coats of mail, to the intent to defend themselves against their adversaries, are not withing the meaning of the statute, because they do nothing in terrorem populi.This shows rather clearly that being armed and armored is a right under the English common law, not an offense; terrifying or killing (or anything between) is. The Statute of Northampton had the intent of punishing the intimidation of witnesses, Jurors, Courts, or officers of the Crown, whether by actual or threatened violence, and is a parallel to our statutes punishing gang or Mafia violence or harrassment of witnesses, jurors, Court officers, or investigators. -->
Throughout the history of English and American common law, political commentators supportive of Liberty spoke highly of an armed citizenry. Acts and speeches against the citizens keeping their own arms come only from apologists for Absolute Monarchy, who were alone in saying the government should have a monopoly on force (only Police and Soldiers have arms), or that the government should have a prerogative on the franchise of arms (able to grant or deny permits without which we are not at liberty to be armed). Disarmament Kings were chased from their thrones in the 1600's, and another King admitted to the Crown on condition of not disarming the people. When, in the 1700's, our King again sought to disarm us (for we held ourselves to be English), we rebelled, slew His Police Troopers, and established a set of governments for ourselves none of which disarmed free citizens in the least degree, but rather required free citizens to be always armed.
In sum, the American common law rights are for the citizenry being armed and against any notion that we authorized our state government to disarm us by any degree. This statute is therefore outside the authority we gave our state, and is literally, outlaw. That's Middle English for Unconstitutional.
It is essential to understand the purpose of the Second Amendment, in order to understand what is repugnant to it.
The Revolution was not a crime, it was a noble act.
Let the time never come when hubris in office shall have overcome humility in public service and the government we have created shall have rendered impotent the soap box, the ballot box, the jury box, and the cartridge box, for we shall be in dire distress. The True Vision of the Founders, regarding the armed citizen, is that we may, acting en mass, restore the power of the soap box, the ballot box, and the jury box, by the cartridge box, P.R.N. -->
"[T]he security of a free state" is thus as much the security of the freedom of the individuals from an abusive government as it is the security of the functional state of the organs of the government. portions of the people can be found. There is no power or restraint in the hands of the Government against a general insurrection involving the majority of the people arising in most of the States. The Southern States rebelled in 1861, and lost. If the Northern States had decreed succession in 1861, the President, the Army, the Congress, the Courts, and the Southern States together could not have prevented it. --> If the whole people are armed, then corrupt Kings and their armies can be overthrown by the whole people arising. This is one of the great and central objects of the Second Amendment: that no Army that could possibly be raised, be it supported by whatsoever equipment it could procure, that could hope to prevail against the People at large, if they, the people, are determined in general to have something brought to an end.
In Federalist No. 46, written prior to the ratification of the Constitution, James Madison discussed how a federal standing army, which he estimated in 1788 would consist of "one twenty-fifth part of the number able to bear arms," might be checked or controlled:
"To these [the standing army troops] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by [state] governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the late successful resistance of this country against the British Arms will be most inclined to deny the possibility of it."State governments not possessing the affections of the people would be subject to the same check as the federal government: Annihilation.
Noah Webster said it quite well:
Another source of power in government is a militiary force. But this, to be efficient, must be superior to any force that exists among the people, or which they can command; for otherwise this force would be annihilated, on the first exercise of acts of oppression. Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States. A militiary force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
From Mr Madison's and Mr Webster's words, we may see the pattern of thought on two facets of the matter before the Court:
The Second Amendment, therefore, addresses more than what Mr. Justice McReynolds wrote in US v. Miller 307 U.S. 174,177 (1939),
The Constitution as originally adopted granted to the Congress power-- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made...the Right of Arms, and therefore the Second Amendment, has also to do with negating perfidious government whereby to restore the common liberty (under a new government).
The legal and social structures of the Constitutional Model of the United States (and the states severally) rested upon the Militia, being the whole people, bearing their own arms, acting together to enforce just laws and apprehend felons, acting separately in their own defense, and acting en masse to check tyranny. We had just endured tyranny by our own King, we fought a bloody, costly, 8 year war to throw off that tyranny, and we knew that tyranny could arise amongst us in the future. That liberty should be preserved and tyranny restrained or exterminated, the people must remain fully and freely armed, and trained in their arms. Thus did they reason who wrote the Constitution, thus did they reason who wrote the Bill of Rights. They held the Right to oppose and overthrow tyranny to be preserved under this new Constitution and Bill of Rights.
Summary: Exercise of the Right of Resistance to Tyranny, which we held to be a right we owned, requires the use of arms, including handguns. Disarmament statutes are, therefore, in stark opposition to the Constitutional model of our Government. This statute is a disarmament statute, and is unconstitutional as invasive of our Second Amendment right and duty to resist tyranny in government.
Showing that each state reserved the Right to Arms to it's people will show that the Second Amendment did the same. Showing that each state held "militia" to mean the whole body of the people will show that the Second Amendment holds the same. Showing, thereby, that the need for a militia was a need for an armed citizenry, will show that disarmament statutes are unconstitutional.
Whereas:
Therefore measures were taken to prevent disarmament efforts by future governments. Four States put an explicit Right to Arms clause in their Constitutions or Bills or Declarations of Rights. Four others did so implicitly by putting "well regulated militia" in their Declarations and Bills of Rights, in a context where "militia" meant the whole body of the people bearing their own privately owned arms. Four states had no bills of rights at all, of which two had no Constitution at all; the Right to Arms was personal and uninfringeable in them all..
The conclusion we shall reach has already been given in U.S. v. Miller 307 U.S. 174,179 (1939) where Justice McReynolds states (emphasis added):
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for militiary discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Herein is tabled those measures, taken from their Constitutions except as noted. Together they showed that the Right of Arms was as vital to the security of a free state as the Right of the citizens to Vote.
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From this it is obvious that the Right of Arms was individual, fundamental, universal, and both a Right and a Duty. New York State cannot pretend that it has not recognized an individual Right to Arms, including handguns, from the beginning. It's charter rests upon it's duty to the people, and to the preservation of their rights, explicitly including the Right to Arms, handguns included. New York State has not received authority from the people, nor ever will, to reduce their Right to Arms. Suffice it to say that were a Grand Jury studying this matter made of any twelve signers of the Constitution, they would have laughed this statute out of Court, and refused any indictment; a similar trial Jury would swiftly acquit any and all persons accused thereunder. That is a simple and perfect test for whether a statute (or Supreme Court Judgement) is unconstitutional. This Statute is outside the authority of the state, and is therefore unenforceable.
A skill not easily mastered, is that of interpreting silence. The Right of Arms itself was not debated anywhere in the time period in question (1787-1791). Debate arose on whether that right was threatened, not whether it existed, and whether a Bill of Rights reciting that right was the cure for the threat. laughable to the members of the first Congress. Fisher Ames, representative from Massachusetts in the First Congress, described Mr. Madison's proposed Bill of Rights in a letter to Thomas Dwight: "...<lists most of the original amendment proposals, excepting what is now Amendment 2> This is the substance. There is too much of it. Oh! I had forgot, the right of the people to bear arms. Friends, withhold your laughter?" (OSA (DHBR) p668). -->
Germane to the Defense against the criminal charge laid against us is that, along with every other state, New York, via it's ratification debates upon the Constitution itself, it's senator's and representative's votes on the (proposed) Second Amendment, and in it's State ratification debates on the Second Amendment, supported the individual, uninfringeable Right of Arms.
New York began ratification debates on the proposed federal Constitution 26 July 1788. Their work resulted in a lengthy oratory on human rights, and a proposed bill of rights, for like Virginia, New York's ratification of the Constitution was made contingent on the creation of a Bill of Rights. Among the many things in that lengthy proposed Bill of Rights:
"That the people have a right to keep and bear Arms; that a well regulated militia, including the body of the people capable of bearing Arms , is the proper, natural, and safe defence of a free State;
"That the Militia should not be subject to Martial Law, except in time of War, Rebellion, or Insurrection. (Bickford & Viet, 4:20, italic emphasis original!)
Summary: The Right to Arms belongs to every individual. New York cannot deny it's own role in establishing both the Constitution of the United States, and the Bill of Rights, as protecting what New York State declared was an unabridgeable, inviolable, individual right: The Right of the People to Keep and Bear Arms. New York has recognized the personal right to arms as independent of and superior to the statutory authority of the states, existing in every state, and every state has recognized the same as existing in New York. This statute seeks to contravene this precious right.
Throughout the Constitution, "People", "States", "Congress", "Power" and "Right" arise constantly. Some few speakers, albeit influential with Legislators, Executives, and Judges, attribute the Right to Keep and Bear Arms, as delineated in the Second Amendment of the Constitution or the United States, as something belonging to the States, severally, or to organized groups operating under state sanction and control, and not to individuals personally. The following argument by Stephan Halbrook Esq. from his Amicus brief in U.S. vs Emerson, debunks such doctrine.
THE CONSTITUTIONAL TEXT CONSISTENTLY
USES "THE RIGHT OF THE PEOPLE" TO REFER TO
INDIVIDUAL RIGHTS, AND DESCRIBES STATE
PREROGATIVES AS "POWERS"
The Second Amendment to the U.S. Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The defendant here [Dr. Emerson] is charged with possession of a firearm after a court entered a routine divorce order, without making any findings, prohibiting him from using physical force against an intimate partner. See 18 U.S.C. § 922(g)(8). If the Second Amendment guarantees the personal right of an individual to keep firearms, then the prohibition on possession of a firearm based solely on entry of a court order without findings is unconstitutional.
The following sets forth a textual analysis of the Second Amendment.
The Constitution utilizes consistent word choice throughout: the "United States" and the "States respectively" have "powers," while only "the people" have "rights," although the people also have "powers." "'The people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community . . . ." United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
In fact, the term "right" is always used to refer to individuals, which are usually referred to as "the people." See
The Framers also knew how to distinguish the "militia" when on duty from the term "the people." The Fifth Amendment provides in part:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except . . . in the Militia, when in actual service in time of War or public danger . . . ."(Emphasis added.) Thus, "the right of the people to keep and bear arms" cannot be limited to the exercise of that right only by "the Militia, when in actual service," an argument suggested by those who claim that the Second Amendment protects only the National Guard. Quite simply: the Second Amendment does not refer to "the right of the militia, when in actual service, to keep and bear arms." The Framers used such language elsewhere and did not find it appropriate for the Second Amendment.
The federal and state governments have powers, not rights. E.g.,
It is striking that the State power to maintain militias vis-à-vis the federal militiary power was already treated in the text of the Constitution before the Bill of Rights was proposed, and the language of this State power does not contain the individual-rights vocabulary of the Second Amendment. Article I, § 8, Cl. 15 & 16 provide that "Congress shall have power":
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;" (Emphasis added.)
Thus, "power" and "authority" (not "right") over the militia are "reserved" (not "shall not be infringed") to "the States respectively" (not "the people"). In other words, the state power over the militia is reserved to the states respectively, but the right to keep and bear arms is reserved to the people.
Further, "[t]he Congress shall have power" "to raise and support armies" and a navy, Article I, § 8, Cl. 12 & 13, but "no state shall, without the consent of Congress, . . . keep troops, or ships of war in time of peace, . . . or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Article I, § 10, Cl. 3. The contrasting use of the word "keep" is instructive. No state shall "keep troops," but the people have a right to "keep . . . arms." The Second Amendment does not say that "the power to keep militia troops is reserved to the States respectively." Notice also that "the people" have the right to "bear arms"; it makes sense to say that no state shall "keep troops," but it would be strange to say that a state shall or shall not "bear arms," because a state cannot carry arms, only an individual can. Of course, the Framers could have said that "no state shall keep troops who bear arms unless actually invaded, or in such imminent danger as will not admit of delay." But that strict limitation does not exist in the Second Amendment. "The people" have a right to keep and bear arms on a permanent basis, and are not limited to bearing arms as state troops when the state is "actually invaded, or in such imminent danger as will not admit of delay."
The term "the States respectively" reappears in the Tenth Amendment, where it is distinguished from "the people": "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." As examples, the power to raise armies is delegated to the United States and prohibited to the States, while the power over the militia is reserved exclusively to the States, except as delegated to Congress in Article I, § 8. The Tenth Amendment clarifies that "the people" have "powers" as well as "rights." These powers include suffrage, jury service, militia service, and other institutions in which the people govern, administer justice, keep order, and otherwise participate in political society. E.g., U.S. Const., Art. I, §2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second year by the People of the several States"). By contrast, the state and federal governments have "powers" only and no "rights." Only individuals have "rights."
Finally, governmental powers are "delegated" or "reserved"; only rights retained by the people may not be "abridged" or "infringed," terms found in the First and Second Amendments. The former refer to authorized powers of government, while the latter refer to individual rights excepted from the exercise of governmental powers.
The Second Amendment begins with a clause declaring a political principle about the militia, followed by a clause declaring a substantive right. Its structure is equivalent to the following: "A well educated citizenry, being necessary to the culture of a free state, the right of the people to keep and read books, shall not be infringed." It would hardly do to argue that a government-selected intelligentsia is today's well educated citizenry and thus that this group is the only entity with the right to keep and read books. Indeed, the right would extend to people who were not "well educated," since they are among "the people." Nor is it tenable to argue that the National Guard is the militia, only its members have a right to keep and bear arms, and then only when on duty.
In short, the constitutional text mandates the conclusion that the Second Amendment guarantees a personal, individual right to keep arms.
End of quote.
Comment: "A well educated electorate, being necessary to the security of a free state, the right of the people to own and read books shall not be infringed" paraphrased from Mr. Halbrook's Amicus brief above, does not only not limit book ownership to a "state-licensed intelligentsia", nor even only to registered voters, it further does not limit what books we may own to those on a list of state-approved texts of political nature. Book ownership in it's entirety is reserved completely out of the powers of government. We may write our own, large or small as we please, publish to sell to whom we please, rip out pages of books we make or buy that we don't like and make "short-barrelled bibles", but when we invade the peace or freedom of another, we then "need hangin'!".
Summary: Whereas it is obvious that the right of the people to keep and bear arms is reserved out of the powers of government, the State cannot pretend that prohibitions on individuals keeping their own arms is within it's police powers. This statute is violative of the Second Amendment, and is unconstitutional. It also has been demonstrated that any "collectivist" reading of the Second Amendment is groundless.
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