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To: woodpusher
It was and is an individual right to keep and bear arms which are lawful to possess.

There was no ban on concealed weapons when the Second Amendment was ratified in 1791.

Those bans did not happen until 40 years later. They were not traditional in England or in the United States, and were primarily aimed at slaves and black people.

They were, of course, difficult to enforce.

105 posted on 06/04/2022 6:20:56 AM PDT by marktwain
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To: marktwain
There was no ban on concealed weapons when the Second Amendment was ratified in 1791.

What conceivable legal point this tries to make is not apparent. I do not recall any legal ban on gay marriage either. If something is not banned by statute law, does that make it a constitutional right?

Those bans did not happen until 40 years later. They were not traditional in England or in the United States, and were primarily aimed at slaves and black people.

Your sourceless claim shows only that you are either misinformed or uninformed. Bans on concealed carry did not wait for 40 years, and certainly were not aimed at slaves who had no right to keep and bear arms, concealed or otherwise.

Kentucky (1813)

CHAP. LXXXIX

AN ACT to prevent persons in this Commonwealth from wearing concealed Arms, except in certain cases.

Approved, February 3, 1813.

Sec. 1. BE it enacted by the general assembly of the com­monwealth of Kentucky, That any person in this common­wealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when travelling on a journey, shall be fined in any sum, not less than one hundred dollars; which may be recovered in any court having jurisdiction of like sums, by action of debt, or on the presentment of a grand jury — and a prosecutor in such presentment shall not be necessary. One half of such fine shall be to the use of the informer, and the other to the use of the commonwealth.

This act shall commence and be in force, from and after the first day of June.

LOUISIANA adopted a similar law in 1813, stating in part:

Sect. 1. Be it enacted by the senate and house of representa­tives of the state of Louisiana, in general assembly con­vened, That from and after the passage of this act, any per­son who shall be found with any concealed weapon, such as a dirk, dagger, knife, pistol or any other deadly weapon con­cealed in his bosom, coat or in any other place about him that do not appear in full open view, any person so offend­ing, shall on conviction thereof before any justice of the peace, be subject to pay a fine not to exceed fifty dollars nor less than twenty dollars, one half to the use of the state, and the balance to the informer, and should any person be con­victed of being guilty of a second offence before any court of competent jurisdiction, shall pay a fine of not less than one hundred dollars to be applied as aforesaid, and be impris­oned for a time not exceeding six months.

INDIANA (1820)

CHAPTER XXIII.

AN ACT to prohibit the wearing of concealed weapons.

Approved, January 14, 1820.

Sec. 1. BE it enacted by the General Assembly of the State of Indiana, That any person wearing any dirk, pistol, sword in cane, or any other unlawful weapon, concealed, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be fined in any sum not exceeding one hundred dollars, for the use of county seminaries: Provided however, that this act shall not be so construed as to affect travellers.

Concealed carrying was a specific exception to the right to keep and bear arms as stated in Blackstone's Commentaries on the Common Law of England. It is this right which was enjoyed by the British colononists, and which they preserved after they declared independence. It was also the common law right which was referenced in the Second Amendment.

The law of the land at the time of the Declaration of Independence was the English Common Law.

Ex parte Grossman, 267 U.S. 87, 108-09 (1925), Opinion of the Court by Chief Justice Taft,

The language of the Constitution cannot be interpreted safely except by reference to the common law and to British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Conventions of. the thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

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 1 W. & M. ft. 2. c. 2. 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.

Concealed carry is not a Federal Constitutional right. It is a matter of State discretion. In referring to the Common Law right to keep and bear arms, the Second Amendment made no attempt to remove the exceptions which were inherent in the common law right.

The original Kentucky law against concealed carry was overturned by the Kentucky Supreme Court in 1822 on the gounds that it violated the Kentucky state constitution. The Kentucky state constitution of 1799 stated at Article X, Section 23,

Sec. 23. That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned.

Kentucky subsequently revised its state constitution to read at Article XIII, Section 25,

Section 25. That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned; but the general assembly may pass laws to prevent persons from carrying concealed arms.

Heller at 554 U.S. 626,

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

The U.S. Supreme Court denied cert. in Peruta and thereby allowed the en banc decision of the 9th Circuit to stand. I know of no Federal case that has every considered concealed carry to be a Federal Constitutional right.

Peruta v. San Diego, 824 F.3d 919 (9th Cir. 2016, en banc) (cert. Denied, S. Ct. 16-894, 26 Jun 2017, Thomas, J. Dissenting, joined by Gorsuch, J.

Argued and Submitted En Banc June 16, 2015

SUMMARY at 3-4:

Civil Rights

The en banc court affirmed the district courts’ judgments and held that there is no Second Amendment right for members of the general public to carry concealed firearms in public.

Appellants, who live in San Diego and Yolo Counties, sought to carry concealed firearms in public for self-defense, but alleged they were denied licenses to do so because they did not satisfy the good cause requirements in their counties. Under California law, an applicant for a license must show, among other things, “good cause” to carry a concealed firearm. California law authorizes county sheriffs to establish and publish policies defining good cause. Appellants contend that San Diego and Yolo Counties’ published policies defining good cause violate their Second Amendment right to keep and bear arms.

The en banc court held that the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment. Therefore, because the Second Amendment does not protect in any degree the right to carry concealed firearms in public, any prohibition or restriction a state may choose to impose on concealed carry — including a requirement of “good cause,” however defined — is necessarily allowed by the Amendment. The en banc court stated that there may or may not be a Second Amendment right for a member of the general public to carry a firearm openly in public, but the Supreme Court has not answered that question.

OPINION OF THE COURT at 19:

We do not reach the question whether the Second Amendment protects some ability to carry firearms in public, such as open carry. That question was left open by the Supreme Court in Heller, and we have no need to answer it here. Because Plaintiffs challenge only policies governing concealed carry, we reach only the question whether the Second Amendment protects, in any degree, the ability to carry concealed firearms in public. Based on the overwhelming consensus of historical sources, we conclude that the protection of the Second Amendment — whatever the scope of that protection may be — simply does not extend to the carrying of concealed firearms in public by members of the general public.

The Second Amendment may or may not protect, to some degree, a right of a member of the general public to carry and the scope of such a right, are separate from and independent of the question presented here. We hold only that there is no Second Amendment right for members of the general public to carry concealed firearms in public.

At 23:

In determining whether the Second Amendment protects the right to carry a concealed weapon in public, we engage in the same historical inquiry as Heller and McDonald. As will be seen, the history relevant to both the Second Amendment and its incorporation by the Fourteenth Amendment lead to the same conclusion: The right of a member of the general public to carry a concealed firearm in public is not, and never has been, protected by the Second Amendment.

At 38-39:

The Supreme Court stated in Heller that “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” 554 U.S. at 626 (emphasis added). The Court substantially understated the matter. As just noted, with the exception of Bliss, those pre-Civil War state courts that considered the question all upheld prohibitions against concealed weapons. Four of the six courts upholding prohibitions specifically discussed, and disagreed with, Bliss. See Reid, 1 Ala. at 617–20; Aymette, 21 Tenn. at 160–61; Buzzard, 4 Ark. at 25–26; Nunn, 1 Ga. at 247–48. Moreover, the two-to-one Bliss decision did not last. Bliss was decided in 1822; a state constitutional amendment was adopted in 1849 to overturn Bliss; the legislature then passed a statute in 1854 outlawing concealed weapons.

The Supreme Court wrote in McDonald that a “clear majority of the States in 1868 . . . recognized the right to keep and bear arms as being among the foundational rights necessary to our system of Government.” 561 U.S. at 777 (emphasis added). Based in substantial part on its understanding of the “clear majority” of states, the Court held that the adopters of the Fourteenth Amendment intended to incorporate the right to bear arms preserved by the Second Amendment. As just seen, an overwhelming majority of the states to address the question — indeed, after 1849, all of the states to do so — understood the right to bear arms, under both the Second Amendment and their state constitutions, as not including a right to carry concealed weapons in public.

Agree with it or not, the current state of the law is that concealed carry is not a Federal Constitutional right. A State is free to make it a right within its jurisdiction.

115 posted on 06/05/2022 2:25:16 PM PDT by woodpusher
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