Posted on 02/12/2002 4:22:44 AM PST by vannrox
The Constitution does in several places declare and imply both Right and Duty pertaining to the Citizens possessing arms of their choosing, in addition to Arms of Congress chooses choosing. Judicial misconstruction of, and intransigence against, the Right of Arms being pandemic, Defendants recite to the Court sufficient of the Judgements of the Supreme Court to make plain that, absent an Amendment to the Constitution relieving the citizens of any Right of Arms in general, and of any specific duties concerning Arms manifesting in the Constitution, the individual Right of Arms is uninfringeable by the Decisions of the Courts, and immune to the statutes of the Legislatures.
Defendants note that, when it pleases the Court, each article and particle of the Bill of Rights has a "penumbra", or shadow, which is outside the precise words, but inside the scope of the principal. For examples see Miranda vs Arizona 384 U.S. 436 (1966), Griswold vs Connecticut 381 U.S. 479 (1965), and Roe vs Wade 410 U.S. 113 (1973); and that when it pleases the Court, an amendment has no effect at all (cf Plessy vs Ferguson 163 U.S. 537 (1896), The Slaughter House Cases 83 U.S. 36 (1872), Presser vs Illinois 116 U.S. 252 (1886), and Barron vs Baltimore 32 U.S. 243 (1833)).
If the Second Amendment were accorded as wide a penumbra as the First, no laws could be placed upon guns whose parallel would not be acceptable when levied against books, nor could burdens be placed upon Arms that cannot be placed upon publishing. Conversely, if the First Amendment were given as bitterly narrow a construction as the Second now suffers, books outside of government offices and government operated libraries (access to which being restricted severely) would be vulnerable to prohibitions backed by lengthy jail terms, and defendants would need a licence and permit to write this Motion.
Syllabus (emphasis added)
If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Defendants cite to the Court, that the Courts and the Legislature are co-equal, therefore as the ordinary acts of the legislature must yield to the Constitution, then so must the ordinary acts of the Courts. Therefore this Court has a duty to defy even the Supreme Court of the United States to the extent that they, they Supreme Court, defy the Constitution.
Opinion, (5 US 137,174-179), the Justices wrote:
It cannot be presumed that any clause in the Constitution is intended to be without effect.Defendants interject: So, lets not insist on the absurdity that the statute at bar is operative in the light of Amendment 2.If an act of the Legislature repugnant to the Constitution is void, ... does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.
If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.
Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law.
This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.
That it thus reduces to nothing what we have deemed the greatest improvement on political institutions -- a written Constitution, would of itself be sufficient, in America where written Constitutions have been viewed with so much reverence, for rejecting the construction.
Defendants summarize: Whereas we have a right to arms, which is clearly reserved to us under the Constitution of the United States, and whereas that right is invaded by this statute, the Constitution annuls this statute.
Mr. Justice Sutherland, Dissenting Opinion, emphasis added.
A provision of the Constitution, it is hardly necessary to say, does not admit of two distinctly opposite interpretations. It does not mean one thing at one time and an entirely different thing at another time.The true rule was forcefully declared in Ex parte Milligan, 4 Wall. 2, 120-121.
Those great and good men foresaw that troublous times would arise when rulers and people would become restive under restraint, and seek, by sharp and decisive measures, to accomplish ends deemed just and proper, and that the principles of constitutional liberty would be in peril unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future.And then, in words the power and truth of which have become increasingly evident with the lapse of time, there was laid down the rule without which the Constitution would cease to be the "supreme law of the land," binding equally upon governments and governed at all times and under all circumstances, and become a mere collection of political maxims to be adhered to or disregarded according to the prevailing sentiment or the legislative and judicial opinion in respect of the supposed necessities of the hour:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism. . . .Chief Justice Taney, in Dred Scott v. Sandford, 19 How. 393, 426, said that, while the Constitution remains unaltered, it must be construed now as it was understood at the time of its adoption; that it is not only the same in words, but the same in meaning,
and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.And in South Carolina v. United States, 199 U.S. 437, 448-449, in an opinion by Mr. Justice Brewer, this court quoted these words with approval, and said:
The Constitution is a written instrument. As such, its meaning does not alter. That which it [meant] when adopted, it means now. . . . Those things which are within its grants of power, as those grants were understood when made, are still within them, and those things not within them remain still excluded.The words of Judge Campbell, speaking for the Supreme Court of Michigan in Twitchell v. Blodgett, 13 Mich. 127, 139-140, are peculiarly apposite.
Constitutions ... remain binding as the acts of the people in their sovereign capacity, as the framers of Government, until they are amended or abrogated by the action prescribed by the authority which created them. It is not competent for any department of the Government to change a constitution, or declare it changed, simply because it appears ill-adapted to a new state of things.. . . [W]here evils arise from the application of such [Constitutional provisions], their force cannot be denied or evaded, and the remedy consists in repeal or amendment, and not in false constructions.
The provisions of the Federal Constitution, undoubtedly, are pliable in the sense that, in appropriate cases, they have the capacity of bringing within their grasp every new condition which falls within their meaning. But their meaning is changeless; it is only their application which is extensible. See South Carolina v. United States, supra, pp. 448-449.
The distinction [between an evolving common law and a constitution] is clearly pointed out by Judge Cooley, 1 Constitutional Limitations, 8th ed., 124:
A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion. It is with special reference to the varying moods of public opinion, and with a view to putting the fundamentals of government beyond their control, that these instruments are framed, and there can be no such steady and imperceptible change in their rules as inheres in the principles of the common law. ... [A] court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders, would be justly chargeable with reckless disregard of official oath and public duty, and if its course could become a precedent, these instruments would be of little avail. . . . The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent, of its framers and the people who adopted it. Lake County v. Rollins, 130 U.S. 662, 770. The necessities which gave rise to the provision, the controversies which preceded, as well as the conflicts of opinion which were settled by its adoption, are matters to be considered to enable us to arrive at a correct result. Knowlton v. Moore, 178 U.S. 41, 95. The history of the times, the state of things existing when the provision was framed and adopted, should be looked to in order to ascertain the mischief and the remedy. Rhode Island v. Massachusetts, 12 Pet. 657, 723; Craig v. Missouri, 4 Pet. 410, 431-432. As nearly as possible, we should place ourselves in the condition of those who framed and adopted it. Ex parte Bain, 121 U.S. 1, 12. And if the meaning be at all doubtful, the doubt should be resolved, wherever reasonably possible to do so, in a way to forward the evident purpose with which the provision was adopted. Maxwell v. Dow, 176 U.S. 581, 602; Jarrolt v. Moberly, 103 U.S. 580, 586.
Defendants note the intent of the Second Amendment: To prevent disarmaments, to keep the people capable of checking their government; and the enduring effect of the Second Amendment: A well regulated militia is still necessary to the security of a free state, and the right of the people to keep and bear arms is still uninfringeable.
What Mr Justice Sutherland said once, needed saying again. Three of his brethren on the Court agreed, as do the Defendants. Emphasis added.
Mr. Justice Sutherland, Mr. Justice Van Devanter, Mr. Justice McReynolds, Mr. Justice Butler, dissenting:
The words of Judge Campbell in Twitchell v. Blodgett, 13 Mich. 127, 139-140, apply with peculiar force.
Constitutions cannot be changed by events alone. They remain binding as the acts of the people in their sovereign capacity, as the framers of Government, until they are amended or abrogated by the action prescribed by the authority which created them. It is not competent for any department of the Government to change a constitution, or declare it changed, simply because it appears ill-adapted to a new state of things.
. . . [W]here evils arise from the application of [constitutional provisions], their force cannot be denied or evaded, and the remedy consists in repeal or amendment, and not in false construction.The principle is reflected in many decisions of this court. See South Carolina v. United States, 199 U.S. 437, 448-449; Lake County v. Rollins, 130 U.S. 662, 670; Knowlton v. Moore, 178 U.S. 41, 95; Rhode Island v. Massachusetts, 12 Pet. 657, 723; Craig v. Missouri, 4 Pet. 410, 431-432; Ex parte Bain, 121 U.S. 1, 12; Maxwell v. Dow, 176 U.S. 581, 602; Jarrolt v. Moberly, 103 U.S. 580, 586.
The judicial function is that of interpretation; it does not include the power of amendment under the guise of interpretation. To miss the point of difference between the two is to miss all that the phrase "supreme law of the land" stands for, and to convert what was intended as inescapable and enduring mandates into mere moral reflections.
If the Constitution, intelligently and reasonably construed in the light of these principles, stands in the way of desirable legislation, the blame must rest upon that instrument, and not upon the court for enforcing it according to its terms. The remedy in that situation -- and the only true remedy -- is to amend the Constitution. Judge Cooley, in the first volume of his Constitutional Limitations (8th ed.), p. 124, very clearly pointed out that much of the benefit expected from written constitutions would be lost if their provisions were to be bent to circumstances or modified by public opinion.
[A] court or legislature which should allow a change in public sentiment to influence it in giving to a written constitution a construction not warranted by the intention of its founders would be justly chargeable with reckless disregard of official oath and public duty, and if its course could become a precedent, these instruments would be of little avail. . . . The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it.
Defendants summarize: The preceding elevates the Personal Right to Arms above the words of Congressmen, Presidents, and Judges. Some may think the individual Right of Arms to be some anachronism from a bygone age of savages, but until it is lawfully amended, judicial duty is to uphold it to it's fullest extent.
This is a case that had to do with the 1st Amendment striking down a law that required a speaker to register and get a permit before addressing an assembly. We think it Writ applicable to the notion of requiring registration and permits prior to possessing handguns. Emphasis added.
If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think this can be accomplished by the device of requiring previous registration as a condition for exercising them and making such a condition the foundation for restraining in advance their exercise and for imposing a penalty for violating such a restraining order. So long as no more is involved than exercise of the rights of free speech and free assembly, it is immune to such a restriction. ... We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment.
Defendants query: What difference is there is between registering to speak or assemble, and registering to buy or possess a handgun? Now: substitute the Right of Keeping and Bearing Arms for the Right of Freedom of Speech and Assembly, and you have shown the statute at bar unconstitutional under the Second Amendment. Also, this language conjoins right and immune is a way that sheds needed light upon the 14th Amendment "Privileges and Immunities" clause (vide infra)
While this Court has had little occasion to interpret the Ninth Amendment, "[i]t cannot be presumed that any clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174. In interpreting the Constitution, "real effect should be given to all the words it uses." Myers v. United States, 272 U.S. 52, 151. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery, and may be forgotten by others, but, since 1791, it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment, and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." (Emphasis added in Griswold.)
Defendants summarize the applicability and effect of Griswold thus: Whatever part of the Right to Arms (as we held it to be in 1791) is deemed NOT shielded from the legislative and police powers of the states by the Second Amendment, automatically resides under the shelter of the Ninth. Repeal the Second Amendment, and everything thereunder is still reserved out of the powers of government under the Ninth Amendment. Whereas the first 8 Amendments do nothing but make portions of the 9th explicit, this judgement, showing Amendment 9 to be binding upon the states, compels acknowledgment that Amendments 2-8 are also binding upon the states. Amendment 14 makes Amendment 1 also binding upon the states.
Simply put: Laying aside for the moment any mention of arms in the hands of the citizenry as is found at present in the Constitution, and therefore laying aside for the moment their import whatever that is, the rage of debate in the Public on the subject of arms in the hands of the citizenry would best be settled by an Amendment to the Constitution. Supposing an Amendment were to be passed, say, in 1900, either prohibiting arms from private possession, or completely exempting peaceable arms ownership from government control; whichever Amendment would be the larger change to our commonly held liberty, is a clear indicator that the Right of Arms is the other way. From 1900 to now we have seen arise a rampage of disinformation and denial regarding the Right to Arms, but no change to the Constitution itself touching upon the Right of Arms. Therefore, what rights we owned in 1900 we own now, but for invasion by legislative squatters and vandalism by judicial hooligans. Betrayal, by any other name, is still betrayal.
When votes are taken on the question of amending the Constitution, the Courts and their Judges are without suffrage. Their beliefs are irrelevant to the proceedings. They are not invited to make speeches or propound opinions, they are given Marching Orders. If they cannot carry them out fully and completely, they owe it to their Oath and to the People to whom they have given that Oath, to vacate their benches.
Having shown the words of the Supreme Court, that interpretation is not an alternate term for amending, which show therefore how the Second Amendment is to be read, let us now study the Constitution in the light of those words.
It has been well said, "It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it." Marbury v Madison, 5 U.S. 137,174 (1803). Let it be so of the Preamble, as of Congress' power to regulate Commerce among the several States.
We The People of the United States, in order to
Of these 6 stated purposes, none is expendable. Acts carried out under this Constitution, by the federal government or any state constituted thereunder, must not break any of these principal principles: to exalt one at the expense of any other breaks them all. The absurd may assert that only the federal government must observe this preamble, and that the states are free to do as they please. These preachers of absurdity may also require of parents to be disciplined, and tolerate riot from their children. Worthy of note is that Law is not supreme, rather, Justice is the objective and law is a method to achieve it. Therefore, where law and justice collide, law must yield. Also worthy of note is that if the Blessings of Liberty are compromised, the purpose of Justice has also been compromised. If this breach against the blessings of Liberty occurs because of a law, the law was the transgressor, not the people who contemned it. The statute at bar renders the Blessings of Liberty less secure by disarming us, reducing our ability to resist crime or tyranny, casting stigma upon skill in arms, and increasing the points under which the power of the state may come against us who have committed no crime but to move to New York with our handguns.
This statute is in contrast with the preamble, acts to frustrate the preamble, and is generally repugnant to the preamble. It is unconstitutional.
Art 1 § 8: "The Congress shall have power..."
11: "To declare War, grant Letters of Marque and Reprisal, and make rules concerning Captures on Land and Water;"
A Letter of Marque is wherewith a citizen of the United States, and not a soldier of the Army or sailor of the Navy thereof, may sail forth with an armed ship, and engage shipping of the nation named in the Letter of Marque, whether to sink or to capture; to engage warships of that nation as another warship; and in general to make reprisal against a foreign power, as if at war, up to the limits Congress shall set in the general rules concerning Captures and the specific Letter of Marque and Reprisal in hand.
Obviously, a Letter of Marque is useless without a warship.
There is no Constitutional limit to the size or power of the warship a citizen may own with which to carry out the powers of a Letter of Marque. Congress was given no power to set any such limits. Thus, considering the Constitution only, Mr. Bill Gates may own a fully functional 55,000 ton Iowa class Battleship and fly the Microsoft flag on it's masthead. Letter of Marque and Reprisal, Mr. Gates could render software piracy a high-risk occupation, no? New York's law about citizen ownership of handguns mirrors the Constitution's law about New York ownership of warships, but the Constitution allows Citizens that they may own warships and armaments of any degree without permission of any degree. --> Meanwhile, absent Consent from Congress, New York may not own as much as a small gunboat, for Art 10 ¶ 3 prohibits it ("No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace,..."). Such consent may be revoked as easily as granted.
Warship internal security personnel and Officers carry handguns for sidearms. For New York to forbid handguns while neither New York nor the United States can prohibit private possession of an armed warship is akin to acknowledging that one may raise and train herds of elephants freely, but threaten a year in jail and a $1000 fine for keeping a mouse.
This statute obstructs the capacity of the people to carry into effect a letter of Marque and Reprisal, (which Letter requires that our keeping and bearing of arms be an individual right, and that said right include handguns), reducing the effect of the Power of Congress to grant such Letters, and is therefore unconstitutional.
Art 1 § 8: "The Congress shall have power..."
15: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions;
16: "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."
Whereas (as has been shown above) Militia means the whole body of the people, an armed Citizenry, without regard or requirement of past or current enrollment in any formal or official organization, state sanctioned or otherwise, therefore, these clauses put into the hands of Congress power to provide for arming the whole body of the common people.
In Maxwell v. Dow (176 US 581) the majority opinion cites Presser v. Illinois saying
It was therein said, however, that as all citizens capable of bearing arms constitute the reserved militiary 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.
Defendants observe that this doesn't name the Second Amendment, but declares the meaning thereof: States have no power over our guns.
This is no philosophical polemic, rather, the power of state legislation over what weapons we may own (which none of the states presumed it had, regarding its free citizens, at the time of the ratification of the Constitution of the United States) is, by these clauses, surrendered by each of the states to the Congress. It appears that no power to obstruct armament of the people, by the Congress or by the people themselves, is left to the states. This section therefore invalidates EVERY state statute putting a criminal penalty on the ownership, by any of the people, of any of the "terrible implement of the soldier". Congress may provide for arming the Militia, but not even Congress has power given to it to disarm the Militia.
Naturalization Laws requiring a willingness to bear arms are upheld in these words United States v. Schwimmer, 279 U.S. 644 (1929):
5. That it is the duty of citizens by force of arms to defend our Government against all enemies whenever necessity arises, is a fundamental principle of the Constitution. P. 650.We think it obvious that ignorance of arms and destitution of skill in arms "tends to lessen the willingness of citizens to discharge their duty to bear arms", ergo laws that intimidate us from possession of or practice with handguns accomplish precisely this unconstitutional objective.6. Whatever tends to lessen the willingness of citizens to discharge their duty to bear arms in the country's defense detracts from the strength and safety of the Government.
Whereas disarmament of the Militia by the state would render the power of Congress to define the method of organizing them, arming them, training them, or calling them forth, nugatory, therefore the state has no authority to disarm the the people. "[T]he state has [no power to] invade the exclusive field of national governmental powers;" Steward Machine Co. v. Collector of Internal Revenue, 301 U.S. 548, 611 (1937).
New York's statute is unconstitutional as an invasion of Congressional prerogative to provide for arming the people.
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;"
We think it obviously pretty silly to call us out "to execute the Laws of the Union, suppress Insurrections, and repel Invasions" (Art 1 § 8 cl 15) if our States have disarmed us. This is a dead giveaway that our States cannot disarm us. In Cities such as Washington, D.C., New York City, and Chicago, the President, attempting to exercise this power, could do little more than convene a parade. This section indicates that the Laws of Congress should provide for our obtaining ownership and possession of the latest generation and best quality Police and Military equipment and the corresponding training, so that burglars, drug runners, murderers, and violent gangs fought not a professional police of a few thousand in the largest cities, but the whole population of a few millions. They in uniform are Police Officers. We, who would gladly leave our desks and machines upon a call to arms, would be Police Infantry. Thus would we put down the contempt the predators have for us.
As the States have no power to frustrate the prerogatives and powers of the President, this statute is unconstitutional as undermining the power of the Presidency of the United States.
"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 27 words appear in two clauses of 13 and 14 words, respectively.
In greater detail:
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A |
'A' indicates we are talking in the abstract. 'The well regulated...' or 'Our well regulated...' would have referenced existing organizations. This declaration addresses the general case, and in the abstract, about militia in general. |
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well regulated |
Today's meaning, strangled with red tape and felony statutes, and hamstrung with overseers wherever not flatly prohibited, did not apply to anything on this continent in the 1790's. 'Regulated' meant a clock that kept time, a keyboard instrument that played the same as others of it's type, finances and accounting put in good order, or a militia that could function on it's own: drill, march, bivouac, engage and destroy an enemy, take casualties and stay in the fight, without dependence on overseers and controllers. |
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militia |
Common usages: 1990's: Hired & paid internal security troops e.g. National Guard; or paranoiac gangs of the right-wing-lunatic-fringe-gun-nut flavor; 1790's: The whole citizenry, armed, trained, and equipped. Excluding the numerically insignificant 'fringies', Militia, today, is a state-owned, state-operated, state-equipped group of state-selected, state-paid people, with loyalty first to the state. Thus today it is nonsensical to refer to a militia acting against the state, but in the Framers time, the militia, arising from the people, being the whole people, having it's loyalty first to the people, was in fact expected to act against the state, should the state act against the freedom and peace of the people. That's what the militia did in opening fire on their own King's police troopers. The doctrine of a readiness to rebel against tyranny is part and parcel of our being governed by our consent. |
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being necessary to the security of a free state |
This is the twist of grammar that shows this clause to be a statement of understanding, a declaration of belief, and not a commandment or restraint. It does declare, we should note, that a state without a militia, or, a state without an armed, trained, equipped citizenry, is here not considered a free state, or is a state whose free state is not secure. It bears belaboring at this point that a state can be secure with it's neighbors and subjects/citizens held in check. This requires an army and police, respectively. The security of a free state requires that the government also be restrained. The Constitutional plan was that the armed citizens were part of the system of checks and balances to this end. |
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the right |
This is not a privilege subject to licensure, it is a right. As it is a right, then all laws making a crime of the peaceable exercising that right are invasions, by the law-making body, against the right. In the Framer's times, Rights were a gift or endowment from that God whose existence was not questioned (however much the details of doctrine and worship were ample food for contentions). Thus, in the Framers view, Rights could no more be made subject to legislative prohibitions than God himself could be made outlaw. Oppression of rights by a State make that State outlaw. States could arise, change, fall, merge or divide, but Rights were discovered, not made. From this confluence of Right and God in the minds and intentions of the authors of the Constitution and the Bill of Rights, any encroachment by law, executive order, department policy, or judgment, against a Right, was as wrong as robbery or murder. Governments with a stubborn streak about destroying the enjoyability of rights, merited annihilation, unless they repent of their ambitions, upon the petitions of the people. Defendants do not seek to cram any religion down anybodies throat, this shows how seriously the word right, where used in the Constitution or Bill of Rights, should be taken. |
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of the people |
Who are the people? Everybody with residence in, and affection for, their community, county, state, and the United States. U.S. vs Verdugo-Urquidez 494 U.S. at 265 (1990, emphasis added). Contrary to the suggestion of amici curiae that the Framers used this phrase "simply to avoid awkward rhetorical redundancy"...the term "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"); Art I, Sec 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. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904). Justice William Brennan, in his dissenting opinion in U.S. vs Verdugo-Urquidez (494 U.S. at 287, 110 S.Ct. at 1072), wrote that: [T]he term "the people" is better understood as a rhetorical counterpoint to "the government," such that rights that were reserved to "the people" were to protect all those subject to "the government." Note, his dissent states the 4th Amendment should apply to Sr. Verdugo-Urquidez, as he is not the government, without disputation to the point asserted here by Defendants (and raised by the majority of the Court) that "the right of the people to keep and bear arms" addresses individuals, not organizations, state sanctioned or otherwise. |
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to keep and bear arms |
Note that this is not limited to firearms, nor rifles & shotguns, but includes any battle-quality militiary killing tool. Reference the "Letters of Marque and Reprisal" above, and the words of Tench Coxe from the Ratification Debates: "The power of the sword, says the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of america. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible army, must be tremendous and irresistible. Who are the militia? are they not ourselves. Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American. The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." (Pennsylvania Gazette, 20 Feb 1788). Note also, that the scope of what we reserved out of the Police powers of the Government is not only to keep arms, but to bear them as well. |
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shall not be infringed. |
From Webster's New World Dictionary, third College Edition: Infringe vt. Break, break off, impair, violate; fail to observe the terms of; trespassed against. Thus, we own a Right Patent to arms, to use a term of Heraldry. The right shall not be encumbered, made empty or without effect. This is a prohibition on prohibitions on ownership or carrying of knives, swords, handgonnes, handguns, rifles, shotguns, assault rifles & assault weapons, machine guns, etc. If the device be useful to troops, or warships, against enemy troops or warships, it's our birth right. Please note this amendment ends with a period, not a comma. It is not a midpoint of a discussion, but the closure thereof. |
"Let us now consider whether we may not be able to defend ourselves by well-regulated militias against any foreign force, though never so formidable: that these nations may be free from the fears of invasion from abroad, as well as from the danger of slavery at home" (emphasis added).
Here it is relevant to note, that the Constitution and the Bill of Rights arose from separate works. The Constitution is the fruit of the debate on the subject of good government, the Bill of Rights is the fruit of the debate on bad government, or, more precisely, government gone bad. Therefore,
The impact of the difference is crucial:
Unlike Amendment 1, the prohibition in Amendment 2 "shall not be infringed" is not addressed to the Congress, nor to the states; it would be nonsensical to do so. If either state or federal power could rightfully disarm us, restraining only the other accomplishes nothing. Conversely, if there is a Right, that the federal government cannot invade it, then for the state to invade it is a wrong.
"[T]he security of a free state" requires both protected organs of a free government and liberties protected from crime and bad government (where bad government often resembles organized crime).
The Right of Arms declared in the Second Amendment is not made dependent on the existance of such organizations as are called Militia, rather, the purpose of this declaration of this right is to assure that, should it ever, in any future time, be decided to instantiate such organizations, an armed citizenry will exist so that they can be constituted, without government assistance if necessary. Indeed, as is belabored elsewhere, this militia may have cause to act against the government, not for it. Who's declaring that there will never be Tyranny arising from Washington D.C., or Albany, New York, or even Mayville, Chautauqua County, which will be worse than what King George did to us?
To recap: The Second Amendment has a clause declaratory of a principle, and a statement of effect. Anything that either compromises the principle or the effect violates this Amendment.
The declared principle: That a well-regulated militia is necessary to the security of a free state.
The effect: No law shall be made or enforced that shall abridge the immunity of the people in keeping and bearing their arms.
Any law that reduces the efficiency of the Militia, or that reduces the capability of the people to keep or bear their privately owned arms, violates this Amendment.
This statute infringes the right to Keep and Bear Arms, and is unconstitutional under the Second Amendment.
As mentioned briefly above with the quote from Griswold v. Connecticut, whatever portion of the Right of Arms, such as we claimed and openly held in common amongst us in 1791, that is deemed (by whomever) to not be part of the Second Amendment, is by such deeming, put into the coverage of the Ninth Amendment. Whereas Griswold holds the Ninth Amendment to be binding upon the States, and whereas the whole Bill of Rights does nothing but make portions of that Grand Continuum of Liberty explicit, therefore holding the Ninth Amendment to be binding upon the states makes Amendment 2-8 binding also.
Take 8 coins, numbered 1-8. Toss them onto a clear floor. The floor is our commonly held rights, liberties, privileges and immunities as of 1791. The part of the floor covered by each coin is the part of that great general liberty covered by each correspondingly numbered amendment. The expanse of floor remaining uncovered is the Ninth Amendment. Pick up any one coin, or all 8, representing a repeal of the corresponding amendment(s), and you only increase the coverage of Amendment 9. The Right of Arms was ours, excepted completely out of the powers of government, state and federal. Whether we put the government on notice not to invade the Right of Arms with the Second Amendment or the Ninth, there is no difference: the right is ours to keep and ours to defend, and the statute at bar is unconstitutional.
WARNING:
It is dangerous to be right
when your Government is wrong !!
I know, I mentioned in my original post that the site was gone again.
Part 8: Barron v. Baltimore 1 of 2.
Applicability:
Therefore, before looking at the Fourteenth Amendment, we study the purposes behind that great Law.
Facts behind Barron v. Baltimore
Before the year 1822, Mr Barron owned interest in a productive deep-water wharf in Baltimore. The City of Baltimore re-directed streams and runoff which resulted in sand and silt filling Barron's wharf-front until it rendered the wharf useless. Mr. Barron sued the Mayor and City of Baltimore for taking the wharf's value, and won $4,500 damages. Baltimore appealed, and Maryland's high Court reversed the judgement. Mr. Barron appealed this reversal to the Supreme Court. Eleven years later, the Supreme Court decided to hear the matter.
The Supreme Court Judgement Barron v. Baltimore held (inter alia):The Judgement v. The Facts
- The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended soley as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States.
- The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States.
- Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention.
- In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments.
- In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments.
- This court cannot so apply them.
Rebuttal: The most effective way to lie is to tell the part of the truth that, if taken as the whole truth, will mislead those who trusted your words. The above holdings are lies of that type.
The Supremacy Clause of the Constitution makes it plain that Rights belonging to the People as declared in the Constitution of the United States (or Bill of Rights) were Rights belonging to the People so far as the States, their Constitutions (if any) and their Bills of Rights (again, if any) were concerned as well, and were Rights belonging to the People even in States without Constitutions or Bills of Rights, even if those States should have articles of law, constitution, or declarations of rights to the contrary. Dred Scott v. Sandford (vide infra) held this point. To hold otherwise is nonsensical. Anything in the Constitution supercedes anything contrary in any Constitution or law of any State. To what could this apply more than the declaration of a Right? Or, what Right do we believe to be ours, that the Federal government shall not touch, but if our State destroy the right with felony statutes and capital punishments, that's fine with us? This is the absurdity of Barron v. Baltimore. How can, then, the Constitution declare a Right as belonging to the people, and a state presume that such is not a right belonging to the people in that State? This is the substance of the Doctrine of Nullification. It is also the substance of Barron v Baltimore. To claim it is the real substance of the Bill of Rights is historically counterfactual.
The ratification debates made this obvious. Freedom of Religion aroused heated and passionate debates as to the wisdom of declaring and protecting such a freedom as a right. Why would such be a concern, if the Bill of Rights had no effect in the States? Let the Federal Government be religion-neutral, and Pennsylvania will be free to require that Catholics pay special taxes. But, the understanding of the delegates was otherwise: They held the Bill of Rights as declaring RIGHTS, not artificial, arbitrary, for-the-heck-of-it limitations on the Federal authority only.
This showed up quite plainly in the Dred Scott vs Sandford decision 25 years later (vide infra). Making Citizens of Negros at the Federal level, whilst holding them slave (or sub-citizen) at the State level (the central point acted on in Scott), and it's parallel in this case: Making handgun ownership (or any right) a right at the Federal level, but a $1000 fine, 1-year-in-jail, and lifetime disarmament penalty misdemeanor (or any other penalty) at the State level, is illogic of a dangerous degree. We shall study the Scott decision next.
To be sure, Federal law does not supercede State constitutions or laws where the Congress had no authority to write the law in question, but the Constitution of the United States cannot, by definition, have such a limit. This is the obvious fact denied by the Supreme Court in Barron v Baltimore, and this denial is the sole foundation stone of that judgement's precedent. This denial is the foundation stone of denial of the Right to Arms in the States. Whether Barron v. Baltimore is cited explicitly or not, the flawed logic thereof is. Law based upon that flawed judgement is unconstitutional.
"As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the United States."
Laying aside the obvious, that the Bill of Rights applies everywhere, the Baltimore charter, even without this "Non-repugnance" clause, cannot grant to the city power to write laws repugnant to the Constitutions or laws of Maryland, nor of the United States, any more than a State Constitution can give it's legislature power to defy the federal government in it's proper sphere of action. Therefore, if this non-repugnance clause is to have any effect, it must impose a restriction beyond the absolute minimum limits inherited from the Supremacy Clause of the Constitution of the United States, and the equivalent limitation that a corporation within a state cannot defy the state. What broader restriction could exist? That the Bill of Rights of the federal Constitution (or rather, the Rights declared therein) imposes a limit on the power of Baltimore. Thus: If it be held that the Bill of Rights was not obligatory upon the States by virtue of the points above, it was obligatory by the construction of the Charter of Baltimore, unless we imagine this Charter to have contained meaningless language. The Supreme Court therefore averred that the Bill of Rights was not only not compulsory upon the states or their cities, but also apparently denied that the Constitution of the United States, nor the Bill of Rights, could be adopted by the states (or by cties therein) as applying to them voluntarily such that offences against the Bill of Rights could be redressed in Courts thereof. -->
The defect of the Court's reasoning relative to the facts is: One, treating the Constitution, and the Bill of Rights in particular, as if it were properly construed mere business contract between the States, in which neither the people, nor the United States, have interests that bound the States; and Two, denying obvious things merely because they were not explicitly listed. The language of the Court here reduces rights from Constitutional Writ and Supreme Law to mere moral polemic to be heeded by whoever pleases to heed and discarded by whoever pleases to discard. ...and become a mere collection of political maxims to be adhered to or disregarded according to the prevailing sentiment ... (Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398 (1934)) Cherokee Nation v. Georgia)--> Barron v. Baltimore)--> Brunner v. New York-->
The Judgement vs The Consequences
Was this the Cause of our rebellion: to replace one wicked King with Thirteen? Would not states without Bills of Rights (or without constitutions) then be free in carrying out whatever deprivations and invasions of rights the people thereof would endure, and the people of such States would have no redress but futile rebellion? States could disarm the people, or some of them, search homes and persons without cause or warrant, compel persons to witness against themselves in Court, deny counsel or juries, or impose impossible fines and torture, and in short act like England's worst Kings, and the Bill of Rights was no protection. At least the Supreme Court said so...
And if the States have and ignore Bills of Rights of their own, who shall enforce them against the States? The Court, in Barron v. Baltimore showed itself unwilling to uphold the common law rights, which was all the Bills of Rights of the several States, or the United States, protected; why should the Court be expected to respect the bark of a written State Bill of Rights, seeing they already slew the dog of common law rights? Again, this is strong evidence that the Court's view was in error.
The Judgement vs The Historical Context of the Bill of Rights
When a body of free people determine to establish a government over themselves, they each surrender a portion of their individual natural sovereignty to this State which they create. For that State to act against the remaining liberties or rights of the people is masochism, for the State has no existance but as an embodiment of the people, and no powers but from the "Consent of the Governed". The common law rights, however spelled and defined, are those remaining, or residual, liberties and rights which the State shall not invade, for it was created without license to do the people harm. It is not bad poetry to refer to this limit, as the State having a Conscience towards it's people. When the States, acting each as if a person, surrendered part of their individuality and individual sovereignty, wherewith to create a new State, to wit the United States, the Federalists cried "Behold Saint Superman", and the anti-Federalists cried "Behold Frankenstein". "St Frankenstein" is closer to the mark. The cry for a Bill of Rights was a cry to assure that St Frankenstein possessed the same conscience towards the people as did the several States. Therefore, not only did the Bill of Rights apply to the States, it was impossible that it not apply.
This assertion, that the common law rights declared in the Bill of Rights were sure limitations on the local government, because the Bill of Rights was established as limitations on Government, Period, is no strange doctrine. Numerous examples exist where state Courts took guidance from the federal Bill of Rights, or even considered it binding upon them:
The Georgia State Supreme Court held that the Bill of Rights protected natural rights which were fully as capable of infringement by states as by the federal government, and that the Second Amendment provided "the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not merely such as are used by the militia, shall not be infringed, curtailed, or broken in on, in the slightest degree; and all this for the important end to be attained: the rearing up and qualifying of a well regulated militia, so vitally necessary to the security of a free state."
Note, Georgia did not have a Bill of Rights at this time, nor a Right of Arms provision in it's Constitution, so the reference to the federal Bill of Rights was not mere courtesy: The judges of Georgia's Supreme Court believed that they, like the rest of the Nation, were bound by the federal Bill of Rights.
The Court recognized the right to keep and to bear arms, saying "This is the right guaranteed by the Constitution of the United States".
Again the Court held that the Second Amendment overruled State law to the contrary, albeit inventing an amendment to the amendment that "the right of the to keep and bear arms openly shall not be infringed."
Again, the State Supreme Court held that the Second Amendment to the Federal Constitution must be obeyed by the State, and repeated the amendment to that amendment that "the right of the people to keep and bear arms openly shall not be infringed."
Texas' Supreme Court cited the U.S. Constitution, Second Amendment, and the Texas Constitution Bill of Rights Art 13, stating "It is contended, that this article of the Code [bowie knife use in a manslaughter circumstance would be considered murder and punished accordingly] is in violation of the Constitution of the United States, and of this State." The Court then propounded the purposes of both Constitutional provisions, indicating that both applied to the State. Then wrote the Court "The Object of the first clause cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our Bill of Rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defence of himself or the State, is absolute. He does not derive it from the State government, but directly from the sovereign convention of the people that framed the State government. It is one of the 'high powers' delegated directly to the citizen and 'is excepted out of the general powers of government.' A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power."
Here, on the eve of the Civil War, or on it's first dawn's light, the Bill of Rights of the United States again received honor by the Supreme Court of Georgia. The Concealed Carry prohibition received this demise: "it is impossible for one to have and bear about his person a pistol or weapon of any kind, without having some part of the weapon concealed from view," and "to enforce the law, as the Court construed it to the jury, would be to prohibit the bearing of these arms altogether, and to bring the act within the decision in Nunn's case." Nunn's case (supra) hinged upon the federal Bill of Rights, which the Georgia High Court took to be binding upon the State.
And those are just weapons law cases, and just those that could easily be found in Clayton Cramers' In The Defense of Themselves and the State. There are, doubtless, other such decisions, weapons law and otherwise, which are yet to be brought to light.
Defendants consider it noteworthy, One, that in State v. Newsom 5 Iredell 181, 27 N.C. 250, 250-253 (1844), the Court cited Barron v. Baltimore as annulling a Second Amendment claim against a weapon law in a State Court; and Two, the defendant was a Negro. Barron has never been cited by a Court in the interests of upholding rights, but only in pursuit of pretext for denial of rights. We should guess, if the Bill of Rights is inapplicable to the States, so are the judgements of the Supreme Court?-->
The Judgement vs Stare Decisis
Constitutional Authorities, widely recognized and respected as expert on the Constitution, echo the above obvious point: The Bill of Rights affects and binds the States by virtue of the Rights declared therein. In the matter at bar, whether the Second Amendment binds the states, the applicable stare decisis is the intentions in the minds of the authors of the Constitution, the Bill of Rights, and, (since 1867), the authors of the Fourteenth Amendment.
In the second article, it is declared, that a well regulated militia is necessary to the security of a free state, a proposition from which few will dissent.
The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.
The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both...A View of the Constitution, 1829; 125-6, emphasis added.
[With respect to] the principal absolute rights of individuals.
To secure their enjoyment, however, certain protections or barriers have been erected which serve to maintain inviolate the three primary rights of personal security, personal liberty, and private property, These may in America be said to be:Commentaries on the Laws of Virginia V 1 p 43, emphasis added, (1831)
- The bill of rights and written constitutions...
- the right of bearing arms--which with us is not limited and restrained by an arbitrary system of game laws as in England; but is particularly enjoyed by every citizen, and is among his most valuable privileges, since it furnishes the means of resisting as freemen ought, the inroads of usurpation.
- the right of applying to the courts of justice for the redress of injuries.
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 in the case in British government...Blackstone Commentaries V 1 P 143 n40 (St. George Tucker ed., emphasis added, 1803).The right of self-defense 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. 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. 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...
§ 1889. 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."
§ 1890. 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 militiary 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 the 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.
Note the total lack of any indication that this applied only to federal usurpation of power by rulers, or to federal subversion, or federal trampling of Rights, and the the total lack of any language indicating that the arms, or the capacity embodied therein to resist tyranny, belonged to the states, or rested with the people only upon the sufferance of the state. Note the arms are in the hands of citizens, not to enrolled members of a state organization, and note that the people are credited with the ability to triumph against usurpers, not states. Thus, his language is as applicable to citizens overthrowing state tyranny as it is to overthrowing federal tyranny. For this to be, the power to disarm the People cannot be found in state or federal hands. Joseph Story's Commentaries assumes that the Bill of Rights, at least the Second Amendment, restrains the states from disarming their people. As his writing here was to propound the origin and intention of the Constitution, it was Stare Decisis relative to Barron as well as to the matter at bar today.
How, one should ask, should the Keeping and Bearing of Arms by the People (as in the Second Amendment) afford the United States any security, if the Second Amendment is inapplicable to the States, such that they, the States, may all disarm their whole populations? The Standing Army? Look to The Debates, and count the points of fear of a Standing Army, and the points of Fear for and in behalf of a disarmed populace. The gap between the intentions of the authors of the Bill of Rights, and of the Court in Barron v. Baltimore, is large enough to frustrate the hopes behind the formation of the Union itself. A disarmed populace, dependant on a standing army, would never have succeeded in repulsing the Kings' army in the 1770's, (for the only army was that of the King), nor in resisting them again in the 1810's. They would have been ineffectual against the Mexican authority in Texas or Upper California in the 1840's, as all these militiary actions required armed citizens to to lay aside their work-a-day occupation, and, usually with their own arms, perform the martial work. The Civil War proved the whole point two ways: It cost the North $1,740,036,689 of public debt (as estimated in 1865 in 1865 dollars) to fund a professional army capable of defeating the militias-cum-armies of the Southern States. Had the North rebelled rather than the South, the South could not have interdicted.
Thus,
But only if the Second Amendment is binding upon the states. Elsewise its effect is not guaranteed to exist at all.
It merits belaborment: At the time of the debates in the State conventions on the proposed Amendments to the Constitution of the United States, the language of the delegates reflected their understanding that their States were each as bound by the provisions of the Bill of Rights as was the Federal Government. In affixing the Bill of Rights to the Federal Constitution, the State legislatures were doing no more to the Federal government than what was already done to the several States by the people thereof, whether explicitly by a Constitution and Bill of Rights (as in Virginia), or by a Constitution without a bill of rights (as in New York), or in a Commonwealth without a constitution or a bill of rights, (as in Connecticut or Rhode Island). It is accurate to label the Bill of Rights as the People establishing a Bill of Limitations on Government. Not one legislator in any legislature agreed to any provision(s) of the (proposed) Bill of Rights on the condition that the Right or Limit in question did not apply to that State. This was so for ancient rights such as the Right of Keeping and Bearing Arms and Jury Trials in all criminal matters; for new rights wherein the American Common Law differed sufficiently from the English Common Law that the point was not univeral in the States, such as the Rights of Freedom of the Press, Speech, and Religion, the restriction was aimed at the Congress explicitly. The American common law, inter alia the Right to Arms, was Sacrosanct everywhere (if you were a free white man).
For the Supreme Court to show neither conscience nor compassion for the Common Law was repugnant to the Constitution. -->
The common law was the "Supreme Law of the Land" in each State between the time of the Declaration of Independence and the Ratification of the Constitution of the United States. Look upon the debates in each State pertaining to the establishment of a Constitution therein, (and in the legislatures of Rhode island and Connecticut which had no Constitutions in that time period) and see if you can find so much as one word disparaging the English common law among them, or the American common law, which the Americans held to be but a small set of improvements on the English common law. There is not one such disparaging comment. The question addressed in the appeal of Mr. Barron in Barron v Baltimore was whether the State was restrained by the common law rights.
The driving reason for a Federal Bill of Rights (and for the Bills of Rights in the Constitutions of the States that had such bills) was to protect the Rights of the People under the common law from invasion by Government. This acceptance of the common law was universal and (nearly) uniform throughout the States. In short, no State could claim the Bill of Rights affixed to the Federal Constitution had no effect on that State without in those same words declaring that the common law rights were discarded by that State. The doctrine that a declaration of a Right shall not be binding upon an inferior level of government than where that right is declared presumes that, when we wrote the Declaration of Independence, we were just kidding. Every complaint we had against George III, our King, was that he abused our Rights or deserted their protection. "But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such government.." makes plain that any campaign of tyranny (defined as invasion of rights, or abandonment of their protection) is a proper target for bloodshed and rebellion.
Any doubt as to this assertion should be dispelled by reading New York's letters to the Continental Congress declaring the provisional and conditional ratification of the Constitution of the United States, 26 July 1788, from which we excerpt: "We, the delegates of the people of the state of New York, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the 17th day of September, in the year 1787, by the convention then assembled at Philadelphia, in the common wealth of Pennsylvania, (a copy whereof precedes these presents,) and having also seriously and deliberately consitered the present situation of the United States, --Do declare and make it known,-- -->
"That all power is originally vested in, and consequently derived from, the people, and that government is instituted by them for their common interest, protection, and security.
"That the enjoyment of life, liberty, and the pursuit of happiness, are essential rights, which every government ought to respect and preserve.
"That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; "That the people have an equal, natural, and unalienable right freely and peaceably to exercise their religion, according to the dictates of conscience; and that no religious sect or society ought to be favored or established by law in preference to others. -->
"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. ((NB, the italic emphasis is original!)) "That standing armies, in time of peace, are dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the militiary should be under strict subordination to the civil power.
"That, in time of peace, no soldier ought to be quartered in any house without the consent of the owner, and in time of war only be the civil magistrate, in such manner as the laws may direct.
"That no person ought to be taken, imprisoned, of disseized of his free hold, or be exiled, or deprived of his privileges, franchises, life, liberty, or property, but by due process of law.
"That no person ought to be put twice in jeopardy of life or limb, for one and the same offence; nor, unless in case of impeachment, be punished more than once for the same offence.
"That every person restrained of his liberty is entitled to an inquiry into the lawfulness of such restraint, and to a removal thereof if unlawful; and that such inquiry or removal ought not to be denied or delayed, except when, on account of public danger, the Congress shall suspend the privilege of the writ of Habeas Corpus.
"That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.
"That (except in the government of the land and naval forces, and of the militia when in actual service, and in cases of impeachment) a presentment or indictment by a grand jury ought to be observed as a necessary preliminary to the trial of all crimes cognizable by the judiciary of the United States; and such trial should be speedy, public, and by an impartial jury of the county where the crime was committed; and that no person can be found guilty without the unanimous consent of such jury. But in such cases of crimes not committed within any county of any of the United States, and in cases of crimes committed within any county in which a general insurrection may prevail, or which may be in the possession of a foreign enemy, the inquiry and trial may be in such county as the Congress shall by law direct; which county, in the two cases last mentioned, should be as near as conveniently may be to that county in which the crime may have been committed;--and that, in all criminal prosecutions, the accused ought to be informed of the cause and nature of his accusation, to be confronted with his accusers and the witnesses against him, to have the means of producing his witnesses, and the assistance of counsel for his defence; and should not be compelled to give evidence against himself.
"That the trial by jury, in the extent that it obtains by the common law of England, is one of the greatest securities to the rights of a free people, and ought to remain inviolate.
"That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore that all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause, are grievious and oppressive, and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.
"That the people have a right peaceably to assemble together to consult for their common good, or to instruct their representatives, and that every person has a right to petition or apply to the legislature for redress of grievances.
"That the freedom of the press ought not to be violated or restrained.
"That there should be, once in four years, an election of the President and Vice-President, so that no officer, who may be appointed by the Congress to act as President, in case of the removal, death, resignation, or inability, of the Presedent and Vice-President, can in any case continue to set beyond the termination of the period for which the last Presedent and Vice-President were elected.
"That nothing in the said Constitution is to be construed to prevent the legislature of any state from passing laws at its discretion, from time to time, to divide such state into convenient districts, and to apportion its prepresentatives to and amongst such districts.
"That the prohibition contained in the said Constitution, against ex post facto laws extends only to laws concerning crimes.
"That all appeals in causes determinable according to the course of the common law, ought to be by writ of error, and not otherwise.
"That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state.
"That the judicial power of the United States, as to controversies between citizens of the same state, claiming lands under grants from different states, is not to be contrued to exted to any other controversies between them, except those which relate to such lands, so claimed, under grants of different states.
"That the jurisdiction of the Supreme Court of the United States, or of any other court to be instituted by the Congress, is not in any case to be increased, enlarged, or extended, by any faction, collusion, or mere suggestion; and that no treaty is to be construed so to operate as to alter the Constitution of any state.
"Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration,---We, the said delegates, in the name and in the behalf of the people of the state of New York, do, by these presents, assent to and ratify the said Constitution. In full confidence, nevertheless, that, until a convetntion shall be called and convened for the proposing amendments to the said Constitution, the militia of this state will not be continued in service out of this state for a longer term than six weeks, without the consent of the legislature thereof; that the Congress will not make or alter any regulation in this state, respecting the times, places and manner, of holding elections for senators or representatives, unless the legislature of this state shall neglect or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that, in those cases, such power will only be exercised until the legislature of this state shall make provision in the premises; that no excise will be imposed on any article of the growth, production, or manufacture of the United States, or any of them, within this state, ardent spirits excepted; and the Congress will not lay direct taxes within this state, but when the moneys arising from the impost and excise shall be insufficient for the public exigencies, nor then, until Congress shall first have made a requisition upon this state to assess, levy, and pay, the amount of such requisition, made agreeably to the census fixed in the said Constitution, in such way and manner, as the legislature of this state shall judge best; but that in such case, if the state shall neglect or refuse to pay its proportion pursuant to such requisition, then the Congress may assess and levy this state's proportion together with interest, at the rate of six per centum per annum, from the time at which the same was required to be paid.
"Done in Convention, at Poughkeepsie, in the county of Duchess, in the state of New York, the 26th day of July, in the year of our Lord 1788.
"By order of the Convention. George Clinton, President Attested. John M'Kesson, A.B. Banker, Secretaries. " -->
Did New York, in it's Constitutions of 1777 (first) or 1786 (operative at the time of this ratification), claim power from the people to invade the rights of the people? It explicitly did not.
Defendants challenge anybody to find even one legislator, in any ratification debate, stating anything to the effect that these limitations, the Bill of Rights, either as proposed or as ratified, did in no wise tie the hands of the state legislatures, that the states were instead free to forbid one Church and impose another; that they could punish any speech and every publication; that assembly and petition were at the discretion of the (state) Legislature; that no man's guns were secure to him but that the state could claim a monopoly on Force within that state; that Search and Seizure were, throughout the state, at the discretion of the state, whether by general warrant, or without cause or warrant altogether; that Due Process was a right in the federal Courts, but merely a vain wish in the Courts of the state; that compulsory means were the states, and that the defendant was on his bloody own; that in criminal cases Counsel was yours if you could afford it and if the Court allowed, that Juries were at the Courts discretion; that the common law in civil matters was for federal Courts only; and that punishments, bails and fines were the pleasure of the legislature regardless of degrees or methods. Your search will be in vain. The states demanded such limitations on the federal Government as were generally upon them already both as well in states with Bills of Rights, as those with Constitutions that had no Bill of Rights, as in states, both of them, that had not even a Constitution. They were bound by the Bill of Rights not because of the ink on the paper, but because of the common law rights the Bill of Rights arose from.
In conclusion on this point:
We consider Barron v Baltimore to be well proved both historically counterfactual and intrinsically nonsensical. Let it be understood that the Bill of Rights never was irrelevant to the states.
Applicability: The key to understanding the 14th Amendment, is to look upon it as it's authors did: Medicine to cure an illness. Part of that illness was the effect of Barron v. Baltimore (vide supra), and the 14th Amendment was intended to cure it. Another intended effect of the 14th Amendment was to destroy the effect of Dred Scott v. Sandford.
Scott has applicability to the matter and statute at bar also because it undermines Barron v. Baltimore, as has already been shown, and because it underscores the fundamental, personal, individual nature of the Right to Arms.
Dred Scott v. Sandford ruled on a few things:
These points were all related by the factors involved in Mr. Scott, his wife Harriett, and two daughters being taken, as slaves, North of the Missouri Compromise line, then taken back to Missouri, then sold to another man. Mr. Scott filed several suits and appeals, one of which came up to the Supreme Court as Dred Scott v. Sandford.
Before delving into the Missouri Compromise itself, the Court, by the pen of Mr. Justice Taney, reflected on the laws and customs of the several States at the time of the founding of the Constitution of the United States, upon the subject of Negroes and their status under those laws, and whether that status was compatible with the threshold of being competent to file a suit in Federal Court.
In it's discourse upon the subject, the Court negated Barron v. Baltimore, discussed above. We provide a few quotes from Scott, some being lengthy, which together show faithfully the points of applicability: Citizens own a Right to Arms, this Right is uninfringeable by the States, and, the Bill of Rights is why. That does negate Barron v. Baltimore.
[60 U.S. 393, 404]The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty.
[60 U.S. 393, 415]By the laws of New Hampshire, collected and finally passed in 1815, no one was permitted to be enrolled in the militia of the State, but free white citizens; and the same provision is found in a subsequent collection of the laws, made in 1855. Nothing could more strongly mark the entire repudiation of the African race. The alien is excluded, because, being born in a foreign country, he cannot be a member of the community until he is naturalized. But why are the African race, born in the State, not permitted to share in one of the highest duties of the citizen? The answer is obvious; he is not, by the institutions and laws of the State, numbered among its people. He forms no part of the sovereignty of the State, and is not therefore called on to uphold and defend it.
[60 U.S. 393, 416,417]The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that ... when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to [Negros] rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them 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 recognized 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.
[60 U.S. 393, 450, 451] For example, no 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. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.
So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation.
The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this-if it is beyond the powers conferred on the Federal Government-it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.
From page 404, we see (as in U.S. vs Verdugo-Urquidez) that "the people" means the citizenry, and the Second Amendment, therefore, does not refer to organizations where it uses "the right of the people".
From page 415, we see that militia duty is upon all citizens able to bear it, and no person, otherwise able to bear Militia duty, is excluded from the Militia without also being excluded from the Citizenry. That exclusion is held to be a bitter repudiation.
From page 416, emphasis illustrates the same principal as overthrows Barron v. Baltimore: Recalling that New York, and that vociferously, demanded a protection of the right to keep and bear arms in the Federal Bill of Rights; did New York support establishment of a federal Right to Arms which New York intended to deny us upon our becoming Citizens of New York? Making rights of some acts at the federal level, whilst making crimes of the same acts at state level, quoth the Chief Justice, "cannot be supposed", meaning such notions would be spelled out explicitly, if they were intended at all. This explicit notation is present in the First Amendment, it is not present in the Second Amendment or elsewhere in the Bill of Rights.
From page 417, we see what the rights of citizens are, particularly that portion greatly emphasized, and that those rights are not subject to the prejudice of the states. Elsewise, if these rights were subject to the prejudices of the states, meaning if Barron was spot-on, Negro citizens entering Georgia would be reduced to the same status there as free Georgia Negros, because (as we assume) the Bill of Rights gave nothing to Negros in Georgia, and Georgia gave little to it's free Negros. However, per the Court in Scott, in contradiction to Barron v. Baltimore, Rights were Rights everywhere, if at federal level then also in each state, and that those rights included "to keep and carry arms" in a clearly personal context. Therefore, if Negroes were citizens of the United States, then Negro citizens have the same Right to Keep and Bear Arms as Whites, because of the Bill of Rights.
For the thought that a State might deprive all citizens of some right equally (such as owning handguns) we need study the next quote.
From pages 450 & 451, we see that Congress cannot play the despot in any unorganized Territory, and we see that Congress cannot organize a despotic Territory government. It follows that, when and if that Territory should become a State within the Union, that new State could not obtain those despotic powers either. The reason: the restraint upon the Congress were also upon the States, new and old; the Bill of Rights was a set of restraints upon government, that there shall be no despotism anywhere. Not in any of the states is there any indication that the state government may play the despot over them.
Our study of Dred Scott v. Sandford continues with this question: Why could not the free States forbid slave owners from entering with their slaves, nor pronounce Freedom upon all slaves brought into their jurisdiction, thereby preventing masters from forcibly taking slaves back into slave States? True, the Constitution required that the fugitive slave be truly delivered over to his master, but did not prohibit the free states from simply declaring the emancipation of all slaves brought into their territory, or possessed therein. Whatever name you give the reason, it manifests in the 5th Amendment: the property cannot be taken from it's owner without both due process and just compensation.
Now consider that defendants came into New York, which forbids New Yorkers from buying or possessing pistols, with their two pistols. Brian's is called, Dred, and Debra's is called, Harriett. Compare this to Dr. Emerson, coming into the State of Illinois, and into territory under the direct operations of the Congress, with his two slaves, Dred Scott and his wife Harriett. Why should his claim upon his property be untouchable by that state, and by the United States, whilst our pistols are subject to seizure upon discovery and subsequent destruction as "nuisances", and we subject to arrest for the possession of the same? This power, to take from us our arms by declaring them contraband or nuisance, is not in the police powers of the state.
As for our being obliged to surrender our handguns upon our becoming residents in the State, we have addressed that question elsewhere and shall add thereunto as we proceed. This point clarifies that the State cannot declare our handguns contraband upon our mere entry into or transit across the State, which this statute does.
The effect of the Scott decision (Negroes aren't citizens and can't sue in Federal Court) was destroyed by the 14th Amendment § 1 sentence 1. The truth of the nature and scope of Rights herein discussed was not. Let the adherents of Barron vs Baltimore consider this 1858 decision to overrule, however implicitly, the 1833 decision of their fancy.
A most brief overview of the Black Codes is relevant to understanding the 14th Amendment, particularly to understand how the 14th Amendment made laws like the Statute At Bar impossible, or at least unconstitutional, which should mean the same thing, but alas does not.
"No Negro or Mulatto shall..."
High on the list of National Acts of Shame are the Black Codes, the Jim Crow Laws, which segregate and denigrate Americans, with the power of law and the violence of enforcement, on the basis of ancestry. Some laws were silly, giving a water fountain to blacks and a water cooler to whites, some were obscene, requiring businesses to establish bathrooms for white men, bathrooms for white women, and a bathroom for colored people of both genders together, and some were contemptuous of their lives, denying Negros ownership of handguns or other arms, while allowing that whites be as armed as they pleased. These laws either spelled out that "[n]o negro or mulatto shall", or required that (e.g.) Jurors be "of good moral character" with an assumption manifest in decades of operation that naturally no negros or mulattos were in fact "of good moral character" and thus never appeared amongst the Jurors.
The 38th &39th Congresses thought that Black Codes were impossible because the 13th Amendment abolished slavery, not just chains, the auction blocks, and the whips. If the 13th Amendment only abolished the chains, there was precious little for the Congress to enforce by law (see Amendment 13 § 2 Congress shall have power to enforce this article by appropriate legislation). Thus, the Congress wrote Civil Rights laws upon the 13th Amendment authority as though the 13th Amendment implied everything the 14th Amendment § 1 declared. The Courts rebelled. The Congress concluded to write the 14th Amendment to make the implicit explicit. The Black Codes were a special target of the 14th Amendment. Many Jim Crow Laws, including those disarming blacks, were debated on the floor of the House and Senate in the preparing and proposing of the 14th Amendment, and were a strongly persuasive reason for passing the proposed 14th Amendment. This greatest Amendment was the highest hope for cleansing the Nation of the venom called Bigotry that poisoned the United States, and each of them, nearly to death.
Alas, the Courts rebelled against the 14th Amendment as well, for there is nothing for the 15th Amendment to accomplish that the 14th, if obeyed, would not have accomplished. Shall not all Citizens vote as they please? Were not Negroes, by the 14th Amendment, Citizens? Why, then, an Amendment to secure the right to vote to Citizens? Because of rebellion, by the state legislatures and federal Courts, against the 14th Amendment.
Alas, but no surprise, the 15th Amendment met with rebellion, in the form of qualification tests for voting such as being of "good moral character" and literacy tests.
Joke: A White man goes to vote, is handed the New York Times, and told "Read me page 2 column 2." He does so, and is allowed to vote. Next a Negro comes to vote, and is handed the Peking Daily (Mandarin version) and told "Read me page 3 column 3." The black man looks at it, looks up to the inquisitor, and answers "It says Blacks don't vote in this town." Now: Since he interpreted page 3 col 3 of the Peking Daily correctly, was he allowed to vote?
No, and the rebellion of the Courts continued and increased until "Separate But Equal" was a Law supreme to the Constitution of the United States.
"All persons born or naturalized in the United States, and subject to their jurisdiction, shall be Citizens of the United States, and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
With these words the 39th Congress intended to
The mechanism of this method was simple to their understanding.
"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States".
The language of the amendment is clear. Article 4 § 2 ¶ 1 of the Constitution provides: "The Citizens of each State shall be entitled to all privileges and immunities of Citizens of the several States." When a New Yorker visits Pennsylvania, the visitor must be treated by everything and everybody in Pennsylvania as if the visitor were a Pennsylvanian. The language of Barron v. Baltimore provided that we also have "privileges and immunities", arising from the bill of rights, that we may enjoy in Federal Court as citizens of the United States. This clause of the Amendment declares that our "privileges and immunities" as citizens of the United States shall not be abridged by State laws in State courts, just as they cannot by Federal laws in Federal Court. In words plainer to our understanding today, the Bill of Rights is a cloak and mantle of rights, liberties, privileges and immunities that we wear in Federal Court, as of the ratification of the 14th Amendment we are entitled to wear this same cloak in any State Court. The state may add to this cloak and mantle, but may not reduce it below what we have by right as citizens of the United States.
These "Unconstitutional" things kept happening, and with the blessing of the High Court. Therefore, a comment on Stare Decisis. No Judge was ever put under any Oath to give a Purple Damn what the Supreme Court ever wrote, but they are put under Oath to uphold the Constitution. If a Century of Judges and their Judgements assigns Black folk to the back of the bus, as it was the day Rosa Parks sat in the front thereof, should the Court have hearkened to the Stare Decisis of "Separate but Equal", or to the Constitution? Clearly, neither a Century, nor a Millenium, of defiance against the Constitution justifies another minute of perpetuation of that defiance.
Critical to the matter at hand, the Congress intended to affix the Federal Bill of Rights, and more, as indelible appendages to the Constitutions of the several States, by affixing the privileges and immunities belonging to citizens of the United States, to those citizens, in a manner that the States could not abridge. Henceforth, when we venture into State Courts, we take our Federal Court Privileges and Immunities with us. There were no controversies on this point but (1) whether this included the 9th Amendment, or just 1-8 (NOBODY questioned that it included the 2nd Amendment), and (2) whether it was a good idea. This is true not only for the members of the 39th Congress, but also for the State Legislatures North and South, newspapers East to West, and the whole body public. Everybody understood what the 14th Amendment would do: make the Bill of Rights binding upon the States.
In the language and dialectic of the authors of the 14th Amendment, for New York to disarm it's citizens of firearms to any degree is to impose a badge of slavery upon them, a badge of subordinate or second-class citizenship. This is why this anti-pistol law arose: to keep immigrants powerless in the face of the (corrupt) New York City Police and other union-busters and strike-breakers. The Legislature of New York wrote this Statute in defiance of the 14th Amendment, knowing that the Supreme Court would uphold defiance of the 14th Amendment. In fact, the Supreme Court led the way with Plessy v. Ferguson,163 U.S. 537 (1896) which made "Separate but Equal" the Supreme Law of the Land, or rather, the "Supreme Lie of the Land."
The writing of the 14th Amendment was not isolated, but consistent with the other labors of the 39th (and adjoining) Congresses. These labors included
All of these labors had a common thread: Halting the reductions of Rights of human beings by the States. The votes for and against the 14th Amendment in the House and Senate, respectively, were 120 to 32 (79%) and 33 to 11 (75%). As a point of interesting trivia, opposition to the 14th Amendment in Congress had in it's leadership one Senator Reverdy Johnson of Maryland, who was attorney for Mr. Sandford in Dred Scott v. Sanford. Opposition to the 14th Amendment, in and out of the Congress, was uniformly racist. The Freedman's Bureau bills and the Civil Rights bills spelled out (inter alia) that keeping and bearing arms by individuals was NOT to be obstructed by the conquered Southern States; Congress went to the extreme of abolishing the Militia of those States (in the time period of 1866-1869) in the attempt to halt the disarmament of Freedmen (who were generally excluded from Militia membership) by these State sponsored organizations.
Stephen P. Halbrook wrote:
Of particular note is the front-page press coverage given to Senator Jacob M. Howards speech introducing the Fourteenth Amendment to the Senate on 23 May 1866. That speech included his explanation that the Fourteenth Amendment would compel the states to respect "these great fundamental guarantees:... the personal rights guaranteed by the first eight amendments of the United States Constitution such as ... the right to keep and bear arms ..." On the next day, these words appeared on the first page of the New York Times and the New York Herald, and were also printed in such papers as the Washington, D.C., National Intelligencer and the Philadelphia Inquirer...Numerous editorials appeared on Senator Howard's speech, none of which disputed his explanation that the Fourteenth Amendment would protect freedoms in the Bill of Rights (such as keeping and bearing arms) from State infringement.
(That Every Man Be Armed, Stephen P. Halbrook pp117 citing New York Times, 24 May 1866, at 1, col. 6; New York Herald, 24 May 1866, at 1, col.3; National Intelligencer, 24 May 1866, at 3, col 2; and Philadelphia Inquirer, 24 May 1866, at 8, col 2.)
Examples of the public understanding of the individual right to keep and bear arms as a fundamental right protected by the Second, Thirteenth, and Fourteenth Amendments--expressed in all kinds of publications--pervade the months during which the Fourteenth Amendment was being considered for ratification and, indeed, during the entire period of Reconstruction. Inescapably, the people in that epoch considered the right to keep and bear arms as a basic right of citizenship.
That Every Man Be Armed, p120.
We have records of how five of the States considered the proposed 14th Amendment. The remainder saw and heard enough in the Press that there was, apparently, little to discuss. We think it cannot be imagined that an Amendment to the Constitution would be carefully and maturely considered without notes of their discussions, if there was any point in controversy.
The Committee on Federal Relations in the Massachusetts General Court split between a majority holding that the Bill of Rights already bound the States, and hence that § 1 of the Amendment was unnecessary, and a minority agreeing that the Bill of Rights already bound the States, but recommending adoption of the 14th Amendment to leave no doubt on the subject. The majority cited the Privileges and Immunities and Republican Form of Government clauses, as well as four provisions of the Bill of Rights, including the following:
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.
Nearly every one of the amendments to the constitution grew out of jealousy for the rights of the people, and is in the direction, more or less directly, of a guarantee of human rights ... [T]hese provisions cover the whole ground of section first of the proposed [14th] amendment.
The remainder of the first section, possibly excepting the last clause is covered in term by the provisions of the Constitution as it now stands, illustrated, as these express provisions are, by the whole tenor and spirit of the amendments. The last clause, no State shall "deny to any person within its jurisdiction the equal protection of its laws," though not found in these precise words in the Constitution, is inevitably inferable from its whole scope and true interpretation. The denial by any State to any person within its jurisdiction, of the equal protection of the laws, would be a flagrant perversion of the guarantees of personal rights which we have quoted.
That Every Man Be Armed, p120,121 citing MASS H.R. DOC No. 149, at 3,4 (1867).
Defendants observe that the Massachusetts legislature thought itself unbound by Barron v. Baltimore, and thought it's citizens fully protected by the Bill of Rights.
Texas' legislature split on the question of ratification of the Fourteenth Amendment, the minority was for ratification because it would protect the right of the Freedman to keep and bear arms; the majority was against ratification, for exactly the same reason. That Every Man Be Armed, p121,122
Wisconsin's debates provide a telling point:
Why, then is it necessary to engraft into the federal constitution that part of section one [of] the amendments which says: "Nor shall any state deprive any person of life, liberty, or property, without due process of law?"Why ask why? Because the members of the legislature of Wisconsin thought such rights were already protected, within Wisconsin and everywhere, by the Federal Constitution and it's Amendments.
Pennsylvania and Indiana, like Texas and Massachusetts, split on whether to support or oppose the 14th Amendment, and all five states had this in common: they held that the 14th Amendment added nothing to the white man's liberties, because these liberties were secured to them, individual by individual, by the Federal Constitution's Bill of Rights. The 14th Amendment, they held, would secure all the rights of the Bill of Rights to the Negro, because no state could, any longer, deny the Bill of Rights.
From this can be learned, that the right to keep and bear arms, declared in the Bill of Rights, Amendment 2, was a common right and individual liberty of the common man; and that the 14th Amendment made this right expressly uninfringeable by the states, whereas it was beforehand implicitly so. Pointedly, the Right to Arms was no longer deniable to hated minorities, and nothing of Barron v. Baltimore was left intact.
The text of the 14th Amendment does not include the word "right". We show three views upon this language.
This clarifies beyond question that the Rights, Liberties, Privileges and Immunities of Citizens of the United States (which included everything in the Bill of Rights) could not be abridged by any of the States. This had always been implicit, as was shown in the study of Barron v. Baltimore; now it became also Constitutional Writ.
"selective incorporation" is Selective Intransigence
As has been noted: when votes are taken on the question of amending the Constitution, the Courts and their Judges are without suffrage. Their beliefs are irrelevant to the proceedings. They are not invited to make speeches or propound opinions, they are given Marching Orders. If they cannot carry them out fully and completely, they owe it to their Oath and to the People to whom they have given that Oath, to vacate their benches. The doctrine of "selective incorporation" applying some of the several elements of the Federal Bill of Rights onto the States via the 14th amendment is usurpation, by the Supreme Court, of the Amendmentory process. This matter should culminate in a 9-0 decision stating "The Constitution says it, we believe it, that settles it! The right to guns is as broad as the right to books, the right to arms as broad as the right to publish." The Bill of Rights, amendments 1-9, are, by the 14th amendment, now a part of the Constitution of every State, and the Stare Decisis of every decision of every Court.
Following the Civil War, before proposing the 14th Amendment to the States, the 39th Congress wrote several laws which underscored the understanding that being armed, particularly for the purpose of resisting criminals in or sponsored by government, was a fundamental right, a natural right, and a Constitutional right, meaning the Second Amendment to the Constitution of the United States.
Freedman's Bureau Act 14 Stat 176-177 (1866, veto overridden, emphasis added) read in part:
the right ... to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms, shall be secured to and enjoyed by all the citizens of such State or district without respect to race or color or previous condition of slavery.
Congress enacted this law through a veto override of more than two-thirds. This language of the Freedmans Bureau act showed what the Congress of 1866 thought free mens rights were. The same two-thirds of the same Congress wrote the 14th Amendment with the intention of securing these same rights to citizens after reconstruction ended, and in perpetuity as inviolable by the States with the language:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law...
New York concurred, by ratifying the 14th Amendment.
The Freedmens Bureau Bills showed this repeatedly; each time it was renewed, many prosecutions of disarmament crimes committed by southern states, took place. Writing the bill, overriding President Johnson's veto (succeeding on the second attempt), and writing revisions to that law, all featured debates in Congress, all of which note the oppressions that the Freedmen (Negro former slaves in the South) suffered at the hands of the Southern State governments. High on the list of outrages was disarmament by statute, and disarmament by the state militia organizations, acting, in modern parlance, as government-sponsored criminal street gangs. Disarmed Freedmen were vulnerable to whatever other outrages were aimed at them.
The Civil Rights Bill of 1866 required the States to cease depriving the Freedmen of their Constitutional rights, including the Right to Keep and Bear Arms.
When State and Federal Courts refused to redress the grievances of the Freedmen as embodied in the Civil Rights Bill, the Congress wrote the 14th Amendment, and amended the Freedmen's Bureau Bill to terminate the Military Occupation of the Southern States when they agreed to ratify the 14th Amendment.
Summary: the "privileges and immunities" of § 1 sentence 2, clause 1, included keeping and bearing ones personal arms, rendering all disarmament laws unconstitutional. Every available indicator touching upon the Right to Keep and Bear Arms, from the founding of the British Colonies to the end of Reconstruction has a consistent theme, to wit: The right to keep and bear arms is individual and inalienable by state, federal, or any other government; with a consistent sub-theme, to wit: Racist aspirations and bigotry, and disarmament statutes and actions, go hand in hand. The Right of Arms is, by the Second Amendment, Immune to the legislative powers of the Congress (at least), and by the 14th Amendment, is immune to the legislative powers of the States. Whoso does not understand this simply refuses to understand.
The 14th Amendment, this great saga of Rights of hated peoples in running conflict with prejudice in office, the invasions of the Rights of Negros and the defense thereof by the 39th Congress, is studied and documented closely, particularly as touching the disarmament crimes perpetrated by Southern State governments, and the intention of the 39th Congress to put a halt to these practices by the 14th Amendment, in Stephen P. Halbrook's Freedmen, the Fourteenth Amendment, and the Right to Bear Arms.
Congress, the Second Amendment, and the Right of Arms.
The Federal Militia Act (1792)
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 of forty-five years (except as hereinafter excepted) shall severally, and respectively be enrolled in the Militia by the Captain or commanding officer of the company, within whose bounds such citizens shall reside... That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, [..other equipment...]; or with a good rifle, [...other equipment...]; and shall appear so armed, accoutred, and provided, when called out to exercise or into service... and also, for Dragoons: Each Dragoon to furnish himself with ... a pair of pistols, a sabre, and cartridge box to contain twelve cartridges for pistols.
Quoted from Clayton Cramer "For The Defense Of Themselves And The State" pp 8 & 12, with attribution: from Joseph Gales, ed., Debates and Proceedings in the Congress of United States, (Washington: Gales & Seaton, 1843), hereinafter cited as Annals of Congress, 2 Cong., May 8 1792, 1392 and Charlene Bangs Bickford & Helen E Veit, ed., Documentary History of the First Federal Congress 1789-91, (Baltimore: Johns Hopkins University Press, 1986), 5:1465.
The second Congress exercised it's authority to provide for organizing, arming, and disciplining the Militia, by laying the burden of owning battle-quality weapons upon almost every free white adult male in the United States. These persons were obligated by law to possess a firearm and a minimum supply of ammunition and militiary equipment. This statute, incidentally, remained in effect into the early years of the 20th Century as a legal requirement of gun ownership for most of the voting population of the United States. Citizens were not exempt by virtue of belonging to a state that forbade weapons, or certain weapons; it would be nonsensical to do so: Federal law supercedes and annuls state law where the two both operate on the same object, and where the Congress has specific authority to write the law in question. As it is obvious that the States cannot frustrate the Congress in their assigned duty, the States lack power to outlaw possession of weapons. Conversely, if the Second Amendment does not apply to the States, then this law violates the Tenth Amendment protected Police Powers of the States.
The Congress has never given the States leave to make possession of any weapon unlawful. Nor could it do so. Congress is not only restrained from disarming us to any degree, it is under a burden of duty to see to our arming sufficiently that we may protect our liberty against all enemies: foreign, domestic, and elected. If this duty is neglected, it returns to the States and to the People (see the 10th amendment); if the States neglect our general arming, the power returns to us, the people (see the 10th Amendment).
This requirement to own specified weapons did not declare a maximum amount of weaponry we had any right to own, but declared a minimum amount of weaponry we were required by Federal law to own. Note that this minimum included handguns.
Since it is outside the powers of any State to render a Federal law without effect (if the Federal law operates on Congress's enumerated responsibilities), and since providing for organizing, arming, and disciplining the Militia is expressly a Federal responsibility, THEREFORE, state weapon prohibition laws are generally violative of federal jurisdiction, and are void. The statute at bar forbids ownership of weapons Congress has power and authority to require us to own, and is therefore VOID.
The Freedmen’s Bureau Act of 1866, the Civil Rights Bills, and the 14th Amendment
With the end of the Civil War, slavery was declared ended. The Southern States, prohibited from using chains of iron on the black man, wrote chains of parchment called The Black Codes, which (inter alia) made it illegal for freemen to exercise basic civil, political, and personal rights; including the right to purchase, own and carry firearms. Congress responded to this challenge repeatedly, through the passage of the Freedmen’s Bureau Acts, the civil rights bills, the Militia Disbandment bill, and by proposing the Fourteenth Amendment. These were discussed above.
10 USC §§ 311 & 312
The act established the National Guard. The 1990's National Guard, and similar state-operated forces, had, in the 1790's, the name "select militia", and were held in great dread and general derision as little better than a standing army. In the 1700's, the Kings Army enforced unpopular laws (popular laws needed little enforcement). Our National Army has the respect and affection of the people, largely because it is not employed in enforcement of laws within the United States.-->
This Statute is important here mostly for what it is not.
It is obvious that Congress cannot re-define who is a person, so as to exclude people not in favor with government. Person is a term of the Constitution itself, and can only be redefined by an amendment to the Constitution.
Likewise, the term Right and Property, Tax and Regulate cannot be redefined by a federal law, as these are term of the Constitution.
Militia is also a term of the Constitution, and cannot be redefined by Congress, only by an Amendment.
Therefore, the terms of 10 USC §§ 311 & 312, being "Organized Militia" and "Unorganized Militia", have NO IMPACT on the Second Amendment nor what is protected thereunder, and in fact have no impact anywhere outside of 10 USC §§ 311 & 312 and statutes that specifically reference these two sections of federal law.
It also is significant to understand that these sections draw upon Congress's authority (Art 1 § 8 cl 12) to raise and support armies, not their authority (Art 1 § 8 cl 15 & 16) to do anything with the Militia, nor the Militia of the several States. This is why the National Guard can be compelled to serve at the Presidents Order in foreign Nations (Central America and Saudi Arabia), whereas the Militia of the several States can only be called out "to execute the Laws of the Union, to suppress Insurrections, and repel Invasions".
The Framers, the Congress, US v. Miller, and Perpich v. Dept. of Defense all hold that the militia is more than the State and National Guards, it is the whole of the people.
The National Firearms Act of 1934 (NFA)
Before passage of the NFA (taxation and registration of machineguns and sawed-off weapons), there was detailed discussion between the Attorney General and lawmakers as to how to pass the law without violating the Second Amendment. These discussions illustrate that lawmakers considered the Second Amendment an individual right. During one crucial hearing discussion, Congressman David J. Lewis inquired about reconciling the bill with the Second Amendment’s individual right to keep and bear arms:
MR. LEWIS: Lawyer though I am, I have never quite understood how the laws of the various States have been reconciled with the provision in our Constitution denying the privilege to the legislature to take away the right to carry arms.
Defendants comment:
The Federal Firearms Act of 1938
In 1938, Congress passed the FFA, which regulated interstate commerce in firearms and prohibited possession of firearms by felons where an interstate nexus could be demonstrated. The FFA raised concerns over the infringement of rights guaranteed by the Second Amendment as well as highlighted Congressional support for individual gun ownership. In the early discussions on Second Amendment limitations, Senator William King stated to Senator Copeland, the chief sponsor, that "we have a constitutional provision that right of the people to keep and bear arms shall not be infringed ... [and I] was wondering if this bill was not in contravention of the constitutional provision."
Denying that the FFA infringed upon the Second Amendment, Copeland argued that
[t]he part relating to militia is important ... [as the] first part of the constitutional provision.
Senator McKellar responded,
while [the Second Amendment] refers to the militia, the provision is all-inclusive and provides that the right of the people to keep and bear arms shall remain inviolate.
Since the FFA purportedly related to regulation of Interstate Commerce, not individual gun ownership, little more mention of the individual right to keep and bear arms under Second Amendment protection was discussed. In support of individual gun ownership, the Senate Committee explained that the FFA was designed to impact criminals, not law abiding citizens:
The bill under consideration...is designed to regulate the manufacture of and the shipment through interstate commerce of all firearms. ...It is believed that the bill above referred to will go far in the direction we are seeking and will eliminate the gun from the crooks’ hands, while interfering as little as possible with the law abiding citizen from whom protests have been received against any attempt to take from him his means of protection from the outlaws who have rendered living conditions unbearable in the past decade.
Defendants note that
The 1941 Private Property Acquisition Act (PRA)
Congress asserted the Second Amendment as an individual right by exempting privately-owned firearms from the PRA. Less than two months before Pearl Harbor, Congress passed legislation authorizing Presidential requisition of many properties with militiary uses from the private sector upon payment of fair compensation.
Protections for Second Amendment rights were included in the PRA:
Nothing contained in this Act shall be construed-
- to authorize the requisitioning or require the registration of any firearms possessed by any individual for his personal protection or sport (and the possession of which is not prohibited or the registration of which is not required by existing law),
- to impair or infringe in any manner the right of any individual to keep and bear arms...
Originally, the bill did not include language protecting the individual right to keep and bear arms, but the House Military Affairs Committee added these provisions, noting:
It is not contemplated or even inferred that the President, or any executive board, agency, or officer, would trespass upon the right of the people in this respect [to keep and bear their privately owned arms]. There appears to be no occasion for the requisition of firearms owned and maintained by the people for sport and recreation, nor is there any desire or intention on the part of the Congress or the President to impair or infringe the right of the people under [amendment] 2 of the Constitution of the United States, which reads, in part, as follows: "the right of the people to keep and bear arms shall not be infringed." However, in view of the fact that certain totalitarian and dictatorial nations are now engaged in the willful and wholesale destruction of personal rights and liberties, your committee deem[s] it appropriate for the Congress to expressly state that the proposed legislation shall not be construed to impair or infringe the constitutional right of the people to bear arms. In so doing, it will be manifest that, although the Congress deems it expedient to grant certain extraordinary powers to the Executive in furtherance of the common defense during critical times, there is no disposition on the part of this Government to depart from the concepts and principles of personal rights and liberties expressed in our Constitution.
This provision was essential for the preservation of the individual right to keep and bear arms because if private guns were registered, the government could confiscate them. Compare the retention of private guns with the plight of the National and State Guard units organized under the Dick Act (10 USC §§ 310 & 311): the War Department began taking back all the rifles it had previous issued to them. If, as the gun banners contend, the entire militia is only the "select" militia (the State and National Guards), then the Second Amendment is the first guarantee of the Bill of Rights to cease to exist. Under the PRA, the State and National Guards were disarmed, and they may again be disarmed again in the future. Please note that the Government held, in it's 150th year of Stare Decisis, that registration of privately owned firearms was unconstitutional under the Second Amendment.
The 1968 Gun Control Act (GCA'68)
Key provisions of this act, particularly as applicable to the case before the Court, have their review under Due Process in United States v. Bass and Lewis v. United States, vide infra.
From Lewis,
As the Court has previously observed, [the GCA] "was hastily passed, with little discussion, no hearings, and no report." United States v. Bass, 404 U.S. 336, 344 (1971).
Defendants suggest that from the comment shown, that the GCA was a panic-reaction, or "drive-by legislation", accordingly the GCA should be taken with a few tons of salt as a statute not based upon investigation or findings of any particular kind. It should be noted that this law made great inroads against the freedom of the people to exercise their Right of Arms, breaking with 177 years of Stare Decisis.
In general, it is noteworthy that the powers to legislate are bounded on the one hand by the language of the instrument establishing that power, and on the other by the Bill of Rights. This is as true of State legislative powers as it is of Federal legislative powers.
It also is worthy on note, first, that the language of the debates surrounding the writing of the GCA include note of the right of the people to keep and bear arms as an individual right; and, second, that the Congress in 1986 wrote the FOPA (vide infra) to increase the protection of this right by decreasing the power of the GCA.
The Consumer Product Safety Act of 1976 (CPSIA)
When Congress authorized broad, sweeping powers to the Consumer Product Safety Commission, there was a concern that over-regulation would impact the individual gun ownership. An exemption from the law was created for the manufacture and sale of firearms or firearms ammunition. Pub. L. 94-284, Sec. 3(e), May 11, 1976, 90 Stat. 504, provided that:
The Consumer Product Safety Commission shall make no ruling or order that restricts the manufacture or sale of firearms, firearms ammunition, or components of firearms ammunition, including black powder or gunpowder for firearms.
It is clear that this amendment was adopted specifically to protect individual gun owners from intrusive and overbearing government bureaucracy and the restrictions that could occur. Although the Consumer Product Safety Act does not specifically invoke the Second Amendment, the CPSIA does reflect Congress’s consistent desire to protect individual gun ownership. -->
The Report of the Subcommittee on the Constitution in 1982
Reference 97th Cong., 2d Sess., The Right to Keep and Bear Arms, 83-109 (1982)
The United States Senate declared it's understanding of the meaning of the Second Amendment in the February 1982 Report of the Subcommittee on the Constitution of the Committee on the Judiciary in the 97th Congress, "The Right to Keep and Bear Arms". It was a unanimous, bipartisan and strongly-worded Report supporting the individual right to keep and bear arms.
The report starts with the note:
The values of the Framers of the Constitution must be applied in any case construing the Constitution. Inferences from the text and history of the Constitution should be given great weight in discerning the original understanding and in determining the intentions of those who ratified the Constitution. The precedential value of cases and commentators tends to increase, therefore, in proportion to their proximity to the adoption of the Constitution, the Bill of Rights or any other amendments.
Powell v. McCormack, 395 U.S. 486, 547 (1969).
The report cites the common law as containing an individual right to arms which the Defendants have illustrated, supra.
In his opening remarks, Senator Orrin Hatch wrote:
What the Subcommittee on the Constitution uncovered was clear--and long-lost--proof that the second amendment to our Constitution was intended as an individual right of the American citizen to keep and carry arms in a peaceful manner, for protection of himself, his family, and his freedoms.
Sen. Dennis Deconcini echoed respect for the Second Amendment, quoting Thomas Jefferson and Samuel Adams and noted:
The right to bear arms is a tradition with deep roots in American society… I have personally been disappointed that so important an issue should have generally been so thinly researched and so minimally debated both in Congress and the courts.
The report then quoted Framers of our Constitution, Legal Commentators of the time, and various court cases. The concluding paragraphs destroy the notion that the "militia" is the National Guard of today and reaffirm the Second Amendment as an individual right:
That the National Guard is not the "Militia" referred to in the second amendment is even clearer today. Congress has organized the National Guard under its power to "raise and support armies" and not its power to "Provide for organizing, arming and disciplining the Militia" This Congress chose to do in the interests of organizing reserve militiary units which were not limited in deployment by the strictures of our power over the constitutional militia, which can be called forth only "to execute the laws of the Union, suppress insurrections and repel invasions." The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. Sec 311(a).
This being the word of Congress on the matter, and the Congress being co-equal with the Courts and the Presidency, nay-saying this statement requires the nay-sayer to bear the burden of proof of their assertion.
The Firearms Owner Protection Act of 1986 (FOPA)
Congress again declared the individual nature of the right to keep and bear arms in passing the FOPA, by finding that:
(1) the rights of citizens—
(A) to keep and bear arms under the second amendment to the United States Constitution;
(B) to security against illegal and unreasonable searches and seizures under the fourth amendment;
(C) Against uncompensated taking of property, double jeopardy, and assurance of due process of law under the Fifth Amendment; and
(D) against unconstitutional exercise of authority under the ninth and tenth amendments; require additional legislation to correct existing firearms statutes and enforcement policies; and
(2) additional legislation is required to reaffirm the intent of the Congress, as expressed in section 101 of the Gun Control Act of 1968, that "it is not the purpose of this title to place any undue or unnecessary Federal restrictions or burdens on law abiding citizens with respect to the acquisition, possession, or use of firearms appropriate to the purpose of hunting, trap shooting, target shooting, personal protection, or any other lawful activity, and that this title is not intended to discourage or eliminate the private ownership or use of firearms by law abiding citizens for lawful purposes."
The FOPA enforces the Second Amendment protection through prevention of registration of most firearms by providing:
…No such rule or regulation prescribed after the date of the enactment of the Firearms Owners’ Protection Act may require that records required to be maintained under this chapter or any portion of the contents of such records, be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or any political subdivision thereof, nor that any system of registration of firearms, firearms owners, or firearms transactions or dispositions be established.
The FOPA continued the no-registration policy of the PRA. This protection even carried over to appropriation budgets of the Bureau of Alcohol, Tobacco and Firearms (BATF). Congress has included the following provision in every BATF appropriation act since 1978:
Provided, That no funds appropriated herein shall be available for administrative expenses in connection with consolidating or centralizing within the Department of the Treasury the records of receipts and disposition of firearms maintained by Federal firearms licensees or for issuing or carrying out any provisions of the proposed rules of the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, on Firearms Regulations, as published in the Federal Register, volume 43, number 55, of March 21, 1978....
The Brady Handgun Control Law of 1993
The Congressional prohibition on firearm/firearm-owner registration is reaffirmed again in the Brady Law. Section 103 dealing with the National Instant Criminal Background check system reads in part:
(i) Prohibition Relating To Establishment of Registration Systems With Respect to Firearms. - No department, agency, officer, or employee of the United States may --
(1) require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof; or
(2) use the system established under this section to establish any system for the registration of firearms, firearm owners, or firearm transactions or dispositions, except with respect to persons, prohibited by section 922(g) or (n) of title 18, United States Code, or State law, from receiving a firearm.
This portion of Brady continues the policy from the Constitution forwards, all of which specifically acknowledges the individual right to keep and bear arms as declared in the Second Amendment. -->
18 USC §§ 241 & 242
These sections of Federal Criminal code serve to show that States, and the officers thereof, are guilty of a felony if they invade (or conspire to invade) the Constitutional rights of the Citizens. That these officers wear a badge or a nice suit or a black robe gives no immunity to this felony statute. They may be enforcing a State law, and still be guilty of this felony, because State law does not shield the State, nor Police, Prosecutors, or Judges from Federal law operating in a Federal sphere. Section 5 of Amendment 14 "Congress shall have power to enforce, by appropriate legislation, the provisions of this article" puts the protection of the "privileges and immunities of citizens of the United States" and the guarantee of their rights of Due Process within the Federal sphere.
This serves to show that various state law and case law gimmicks used to excuse State officials in the denial of Constitutional Rights is rebellion, by the state and those state officers, against the Constitution and Laws of the United States, which do surely protect Constitutional Rights from state enfringement (elsewise there is nothing for these sections to enforce).
§§ 241 & 242 are as old as the 14th Amendment. They came into existance first during Reconstruction, and the cause that provoked it, according to the Congress that wrote both the 14th Amendment and this Statute's ancestor, was State officers and KKK gangs disarming black folk, and then perpetrating outrages of numberless varieties upon the now helpless Black citizens, from denying them the right to vote, to robbing them of household goods and burning down their houses, to murder. Everywhere these horrors fell upon the Black folk of the Southern States, disarmament went first, so that these American Citizens could not resist a criminal government.
Defendants hold that the Legislature of the State of New York did conspire to deprive the Brunner family (and virtually all of New York State) of their Right to Arms under the Second and Fourteenth Amendments to the United States Constitution by the act of writing this statute, that the four Police officers who obtained and served a Warrant seizing the handgun and arresting Defendants conspired voluntarily to perpetuate this invasion of rights, personalizing it against the Brunner family, and that the Judges and Prosecutors who have had this matter in their hands, who have not promptly slain this statute, do voluntarily join this conspiracy to deprive citizens of the United States of their Right to Arms, and are properly within the grasp of this Federal Felony Statute.
42 USC § 1983
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
The attitude of many Police Officers and Courts, that Laws are sacred and Rights can go fend for themselves, is in sharp contrast with the intention of the Authors of the 14th Amendment, whose actions in writing that Amendment and this Law provided a means to sue Police and Courts who enforce Unconstitutional statutes, for all they are worth. This law puts every officer of every State on Notice, that an unconstitutional statute is to die by their hands as soon as it enters their hands; elsewise they, the officers of a State, by carrying out and putting into effect an unconstitutional statute, are personally liable for invading the rights of a citizen of the United States. For this they may be found liable for damages of bankrupting magnitude.
This statute is also as old as the 14th Amendment and 18 USC §§ 241 & 242, and serves to protect rights, by allowing the Citizenry to bring the wrongdoers before a federal Judge independently of the Prosecutor, and they may do so in addition to any prosecution. It relieves the plaintiff of proving conspiracy, of pursuing violators in groups, and allows for joint and several damages claims.
New York State and the Right of Arms.
Constitution of the State of New York, 1777, Art XL
(carried over in the 1821 Constitution)
XL: And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defense; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service. That all such of the inhabitants of this State being of the people called Quakers as, from scruples of conscience, may be averse to the bearing of arms, be therefrom excused by the legislature; and do pay to the State such sums of money, in lieu of their personal service, as the same may, in the judgment of the legislature, be worth. And that a proper magazine of warlike stores, proportionate to the number of inhabitants, be, forever hereafter, at the expense of this State, and by acts of the legislature, established, maintained, and continued in every county in this State.
(The Bill of Rights, a documentary history; Bernard Schwartz; Vol I; 342.73S; 1971; pp312, emphasis added).
Emphasis 1-4 show a duty to be armed laid upon every man, personally, that they may serve, personally.
Emphasis 5 shows what type of weapons and materiel was to be in our possession and provided to us by the State, and that this was in proportion to the inhabitants, not in proportion to the number enrolled in some select group.
New York State Bill of Rights
New York State 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 section has a long history, the location of this guarantee to the People of the state government's restraint upon itself changes as the statutes are reorganized and revised, and include
This provision appears in the Declaration of Rights of William and Mary (1689 ¶7), in the United States Constitution (2d Amendment) and in the Revised Statutes of 1828 (Pt 1, Ch 4, § 3).
Plainly, either this Civil Rights law means nothing, or criminal possession and peaceable possession of a handgun must be distinct, and the latter cannot be a crime. The collision between, on the one hand, the U.S. Constitution Amendment 2, this Civil Rights law section, and the Right of Arms, and, on the other hand, prosecutions under the statute at bar, must destroy either one or the other. Defendants inspect two New York State Appellate Court Reviews of this law, showing how utterly the Right to Arms, Due Process, and Common Sense are disregarded together:
Lawyer URL: 84 Misc.2d 110, 375 N.Y.S.2d 826 (1975)
Assertions, such as the Court's here, simply lack sanity:
A person's right to bear arms, as guaranteed by Federal Constitution [Amendment 2] and defined in this section does not extend to pistols or other readily concealable weapons; rather, those guarantees protect only right to be armed with weapon suitable for use by militia in warfare and for the general defense of the community.
This is 5 pounds of nonsense in a 2 pound bag. The very grounds for asserting that handguns are not covered compels the conclusion that handguns are covered.
The complaint of the Court in Guida v. Dier seems to hinge upon concealability; concealability is at times essential to militiary operations (cramped quarters aboard ships or planes, E&E (escape & evasion), and CQB (close quarters battle)), and occasionally required in Community Defense operations (just ask undercover cops about their primary weapon, and the uniformed troops about their backup weapon). It is just plumb stupid to assert that "militia in warfare" weapons are covered, which includes RPG's, demolitions, machineguns, and more, and then to assert that it does not cover handguns. Vide Supra, U.S. Const Art 1 § 8 cl 11 "Letter of Marque and Reprisal" about keeping herds of elephants freely but facing sever penalties for keeping a mouse.
Lawyer URL: (3 Dept. 1943) 267 A.D. 64, 45 N.Y.S.2d 63, affirmed 293 N.Y. 846, 59 N.E.2d 439, Motion Granted 294 N.Y. 699, 60 N.E.2d 847.
Here we find sloppy research by the Court, creating a judgement that is self-shaming. The Public Press propagandizes about "junk guns", Moore v. Gallup should be seen as Junk Government.
First the Court noted that the language of the Civil Rights law § 4 was essentially the same language and effectively the same meaning as the U.S. Constitution Second Amendment, and then applied the reasoning of Federal judgements upon the Second Amendment in State criminal matters.
U.S. v. Cruikshank and Presser v. Illinois are cited by the Court as grounds to hold that the Second Amendment means nothing to the State. For this to be more than annotational graffiti, this must be an attempt by the Court to justify an inference that New York State's Civil Rights law § 4 is likewise inapplicable to the state of New York. The Cruikshank and Presser judgements did assert that the Second Amendment meant nothing to the States, riding on the doctrine of Barron v. Baltimore (vide supra), these decisions also held that the 1st and 4th Amendments likewise meant nothing to the States. Whereas the 1st and 4th Amendment are now held by the Supreme Court to mean everything to the States that they mean to the Federal Government, and this due to the 14th Amendment, it is more reasonable to assume the Second does also, than that it doesn't. The intended effect of making this Civil Rights law was pretty clear: to instruct the judges of the State that the Second Amendment does (in every measurable effect) apply to this state. The Court writing Moore v. Gallup, however, assumes it does not, all facts to the contrary notwithstanding.
Then this judgement declares a socialist, or collectivist view: that we have no individual right to keep and bear arms, but when called to militia duty (per U.S. v. Miller 1939) we're to appear with arms we own, and then exercise our rights to militia duty. This is insane. Do our guns materialize out of thin air upon the announcement of a Militia Call-up? According to the Moore v. Gallup Court, we have no rights to our weapons until then, which re-writes the Civil Rights law § 4 to say "the right of the people to keep and bear arms when called into actual militia service cannot be infringed." Such an rewrite of § 4 is outside the authority of the Judiciary, and renders the entire construction of § 4 absurd.
Then the Court references other gun cases, as if to bolster it's logic, but this only served to show that valid clues are mighty scarce on the Appellate Court bench.
The minority opinion in Moore v. Gallup, written by Judge Hill, shows some coherency with history and constitutional intent:
The several statutes which are known as the Sullivan Law, were enacted in an effort to prevent, or make more difficult, the obtaining of weapons by the criminal classes or by those who might use them in connection with crime. If the statute is extended beyond that scope and field, it is unconstitutional and infringes the right of the people to keep and bear arms. The need of the citizens to become proficient in the use of firearms is now [1943] brought strikingly to our attention. Six hundred thousand of our citizens in cities have sat in shelters at the top of tall buildings and in the country on lonely hillsides every hour, day and night, for more than eighteen months. Unless the home defense authorities were foolishly and unnecessarily panic-stricken there was some danger, no matter how slight, that a foreign foe would land or disloyal residents would take to the air in a hostile way. Under those circumstances, a man of the type of this petitioner who could shoot with accuracy, would be a more useful citizen that one who, if attacked, could only throw a bootjack at his assailant.Looked at soberly, this statute assumes we are all presumed to be probably of the criminal class (whatever that really is), as we are all prohibited from possession of handguns, or else this statute does in fact extend far beyond it's intended scope and field. This presumption of guilt, intrinsic in all prohibition of ownership statutes, and most licensure and permit regulation statutes, is not consistent with the Constitution of the United States under Due Process obligations.
We, the defendants, will gladly research and debunk any "precedent" the Court desires to cite to support this disgraceful statute. Our desire, above all, is to see the Right of Arms restored to it's proper place, whereupon we may, with peace, sit in the front of the Second Amendment Street bus.
This statute conflicts with the Civil Rights laws of the state of New York; Defendants claim the Right named herein and an immunity to the prohibition asserted by the statute at bar. This statute is unconstitutional and void.
New York State Penal Code § 1.05
The Introductory paragraph of New York State's penal code, § 1.05, sheds some interesting light. There, the intention of the entire Penal code is set forth: to proscribe, or make into a crime, conduct which "unreasonably and inexcusably" causes or threatens "substantial harm" to individual or public interests. Reason has it that whatever is found in the penal statutes shall conform to this purpose, or shall be deemed in excess of the legislative authority of the State.
At the very least, a statute that does not conform to this purpose cannot be an element of the penal statutes but must be located under some other chapter of the statutes. To hold otherwise is to assert that the statutes are of full force upon the people, however incoherent they may be; that no limit stated anywhere is applicable anywhere, in fine, that legislative power is as absolute as it is arbitrary. We hold the legislative power to be neither. ("...It is prescribing limits, and declaring that those limits may be passed at pleasure..." (Marbury v. Madison 5 US 137 (1803))
The obverse, the contention that mere Keeping and Bearing Arms is, en se, unreasonably and inexcusably harmful or threatening, and therefore within the Police Powers of the state, is to hold that the state conventions on the ratification of the Constitution, notably New York's Convention, in requiring a Bill of Rights including a Right to Keep and Bear Arms, demanded, in effect, a Right to Unreasonably and Inexcusably Cause or Threaten Harm to be made the Supreme Law of the Land. Such a contention is absurd. Equally absurd, the contention that the House proposed, and the Senate concurred, and the States ratified, "A well regulated militia being necessary to the security of a free state, the right of the people to unreasonably and inexcusably cause or threaten harm shall not be infringed." We sought no license from ourselves to cause or threaten harm to each other in 1789, nor did we grant such in 1791, nor do we think to construe, from the Second Amendment or anywhere, a "Right to Be Unreasonably and Inexcusably Threatening Or Harmful Without Cause", in 1999 or 2000. We sought and obtained, in 1789, in 1791, and hold now in 2000 and beyond, a right to prevent or repel harm to our persons, our property, or our personal and public liberty, whether by individuals or by the state, through the proper use of shootin irons, including handguns. This statute is as contrary to our reserved rights as one forbidding membership in a particular Church.
Abuse of the Right to Arms, such as wrongfully damaging or destroying property (vandalism or mischief), wrongfully injuring or killing persons (assault, battery, and or murder, or the attempt or intent thereunto), or unreasonably and inexcusably casting an unhealthy fear over other people's sense of freedom and security (brandishing or reckless endangerment) are proper subjects for criminal statutes in the penal code. Mere ownership of a handgun, or of a camera, or of a mouth, cannot by itself be construed to be the substantial harm of assault, or of pornography, or of slander.
New York State Penal Code § 265.01 ¶ 1
(A person is guilty of criminal possession of a weapon in the fourth degree when:) He possesses any firearm, electronic dart gun, electronic stun gun, gravity knife, switchblade knife, pilum ballistic knife, metal knuckle knife, cane sword, billy, blackjack, bludgeon, metal knuckles, chuka stick, sand bag, sandclub, wrist-brace type slingshot or slungshot, shirken or "Kung Fu star".
This statute is rife with hysteria.
Take a sock, fill it with sand, and turn yourself in for committing the serious offense of Criminal Possession of a Weapon in the Fourth Degree, for you are in possession of a sandclub!
Get yourself a baseball bat, recognize that the definitions portion of the Statutes do not give a clear indicator of what a billy or bludgeon is or is not so that you can be sure that a baseball bat does not qualify, recognize that the baseball bat can do everything that a billy or bludgeon can do, and dial 911! You're evidently in violation of Criminal Statutes!
If baseball bats are somehow excluded, are cricket bats, golf clubs, axe handles, and various farm implements also? Since the line between what is legal and what is a "Serious Offense" is unknown and unknowable, this statute is both overbroad and vague, two flaws that kill it upon the alter of Due Process.
This law would convict Jesus, though he love all with a perfect and harmless love, if he but possessed a crystal, glass, or metal Star of David, (if it had sufficient mass to be thrown), for it is a "Kung Fu Star".
This statute arises from "logic" that would jail every owner of every camera for Child Pornography, every owner of a printing press for libel, every person capable of speech for slander, every owner of a car for speeding (and if they also own alcoholic beverages, for drunk driving), every owner of a photocopier for copyright violation (or counterfeiting), and every person with friends for Conspiracy, Sedition, or some other Corrupt Organization or Gang-related offence. This statute is hysterical, not in the comic sense, but in the emotionally deranged sense. This statute is not written or enforced with the consent and authority of the people; enforcing it "In The Name of the People of the State of New York" is FRAUD.
It should be apparent to all, that if the pencil can be outlawed, so can the pen; if the handgun can be outlawed, so can the shotgun; if either can be outlawed, so can the rifle. No greater scope of authority is required to outlaw any one, than is required to outlaw them all. If New York can make handgun ownership a crime, it can do the same to every other type of weapon as well. This surely destroys any right to keep or bear arms. Therefore, either this law is unconstitutional, or we have no right to keep and bear arms. The Constitution of the United States, Amendment 2, declares the existance of a Right to Keep and Bear Arms, this law destroys that right. This Statute is unconstitutional.
New York State Penal Code § 265.01 ¶ 2
(A person is guilty of criminal possession of a weapon in the fourth degree when:) He possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same harmfully against another.
If the crime defined in § 265.01 ¶ 1 had that trigger "with intent to use the same harmfully against another" (which is mens rea), the law would have no quarrel with us, nor we with it; though coherency with self-defense statutes and rights begs that the words harmfully against be replaced with wrongfully against. This condition, the requirement on the part of the State prosecutor to prove Mens Rea on the part of the accused, clears the Statute of any Unconstitutionality. Arrest can be imposed upon persons going armed to the intended victim's location, with no need to wait until assault actually starts (by which event the victim's life may be ended).
Upon the Order of the Court Granting this Motion, the phrase "or any other dangerous or deadly instrument or weapon" would then cover handguns, as no other section in this statute would then be doing so. The word "firearm" could be added to paragraph 2 easily by the legislature. Either way, carrying firearms with provable intent to wrongfully harm another therewith would still be prosecutable. In summary, granting the Defendants motion costs the state nothing.
Due Process
The Right of Arms.
The following decisions, spanning the period from 1822 to 1981, have analysed the right to keep and bear arms provisions in the light of statutes ranging from complete bans on handgun sales to bans on carrying of weapons to regulation of carrying by permit systems. Those decisions that not only explained the nature of such a right, but also struck down legislative restrictions as violative of it, are designated by asterisks.
Extensively studied above. Reasoning upon the consequence of declaring Negroes to be citizens, describing some of the rights belonging to citizens:
"and it would give them full liberty of speech in public and in private upon all subjects upon which its own Citizens might meet; to hold public meetings upon political affairs, and to keep and carry arms wherever they went".
This judgement is oft-cited by both sides of the Gun Control debate. Readers should note that the Judges (we cannot call them Justices) ignore the 14th Amendment (extensively studied above) which had been made the law of the land 8 years previous to this judgement, and cite the 1st and 4th Amendments, along with the 2nd, as having no effect on State laws. REPEAT: This judgement holds Amendments 1, 2, & 4 as having no effect on the States. This judgement is badly flawed, and mostly overruled (see Griswold v. Connecticut). Considering only the evolution of the Supreme Court doctrine upon Amendment 14, it is more reasonable to presume Amendment 2 to apply to the States than to presume it does not. The Theory of Barron v. Baltimore, and the now-discredited Slaughter-House Cases shows here.
Facts behind Cruikshank: The Colfax Massacre, (Grant Parish) in which several hundred whites first disarmed (under a pledge of non-violence) and then murdered several hundred blacks, began with a disputed election for Sheriff and Judge in that County. Some killings arose. Black folk by the hundreds, among whom was Mr. Tillman, took up a common defense around the County Courthouse. They were all for the Republican candidates for the offices in dispute. Several hundred white folk, among whom was Mr. Cruikshank, levied siege against them. They were all for the Democratic candidates for the offices in dispute. Then arose the pledge of non-violence, the disarmament, and the slaughter. Amongst the hundreds of killings, (all by whites) Mr. Cruikshank killed Mr. Tillman. The details of the Colfax Massacre are not further explored here. Rather, we explore the claims and findings by the Supreme Court that led to the acquittal of the murderers. There was carelessness in the prosecution: they did not assert and prove that the killings, by several hundred whites, of several hundred blacks, were for "racial motives" and therefore within the reach of the Federal statute under which Mr. Cruikshank faced prosecution; they did not assert and prove that this resolution of disputed elections by mass murder of the members of the other party was a "State government action" prosecutable under the authority of the 14th Amendment. Defendants find the Courts' action on this omission as insane and corrupt as if they should acquit killers because the prosecution didn't prove that the victim didn't die of heart failure at the sight of the killer's shoes or something, rather than the body damage of the bullet or knife, and that they died of the wound, not subsequent emergency room medical misadventure or some such. Here is the heart of the "logic" of the Court: [92 U.S. 542, 551-555] (emphasis added)
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. Barron v. The City of Baltimore, 7 Pet. 250; Lessee of Livingston v. Moore, id. 551; Fox v. Ohio, 5 How. 434; Smith v. Maryland, 18 id. 76; Withers v. Buckley, 20 id. 90; Pervear v. The Commonwealth, 5 Wall. 479; Twitchell v. The Commonwealth, 7 id. 321; Edwards v. Elliott, 21 id. 557. 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, 7 Wall. 325, '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 fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it, and which we have just considered, add any thing to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.
In Rebuttal,
Defendants suggest that, had several hundred blacks disarmed and murdered several hundred whites, especially as a mechanism for settling a disputed election, this Court would have found differently than it did here.
Summary: The Right to Keep and Bear Arms pre-exists both New York and the United States. The 14th Amendment does, per this judgement, prohibit state infringements on this right, which the statute at bar does. Cruikshank destroys New York's pistol ban.
Race played a role in both the underlying facts and in this Court decision as in Cruikshank. Herman Presser, a German immigrant and Citizen of the United States,
"on September 24, 1879, in the county of Cook, in the state of Illinois, 'did unlawfully belong to, and did parade and drill in the city of Chicago with, an unauthorized body of men with arms, who had associated themselves together as a militiary company and organization, without having a license from the governor, and not being a part of, or belonging to, 'the regular organized volunteer militia' of the state of Illinois, or the troops of the United States.' "Mr. Presser "belonged to a society called the 'Lehr und Wehr Verein' (Learning and War Society), a corporation organized April 16, 1875, in due form, under chapter 32, Rev. St. Ill., called the 'General Incorporation Laws of Illinois,' 'for the purpose,' as expressed by its certificate of association, 'of improving the mental and bodily condition of its members so as to qualify them for the duties of citizens of a republic. Its members shall, therefore, obtain, in the meetings of the association, a knowledge of our laws and political economy, and shall also be instructed in militiary and gymnastic exercises;' "
Illinois law provided for a limited (select) Militia of not more than 8,000 men, selected from applicant volunteers, all other militiary group associations and trainings were declared illegal.
Mr. Presser's criminal act was to belong to the Lehr und Wehr Verein, and to lead a parade of the 400-man Militia troop of the Lehr und Wehr Verein through the streets of Chicago, Rifles on the shoulders of the men and Horse & Sabre for the commander, Mr. Presser. For this crime he was arrested, tried, found guilty, and fined $10, about a week's wages.
Look closely at what was forbidden:
In the language of modern hysteria politics, Mr Presser led a peaceful, patriotic militia group. As the German immigrant citizens were abused routinely by Chicago City Police and Pinkerton and Corporation "Security Forces" in the 1870's and 1880's, in Chicago and elsewhere, they had good reason to train together for their own protection. To understand Mr. Presser's actions, it is necessary to look at the "Robber Baron" Feudal Capitalism of the 1850-1900 time frame, where (literally) starvation wages and (literally) murderous living and working conditions provoked a response: Workers Unions forming and protesting not only the working conditions in which they and their children lived (and died), but also enforcement of these working and 'living' conditions by abusive, even murderous city Police who (with the other branches of State government, who were to a great extent on Feudal Capitalist payroll) gladly broke up labor unions with savage beatings, gunfire, mock trials, and hangings. To keep the poor powerless, the law Mr. Presser violated came into existance. Mr. Herman Presser pursued the appeals channels open to him, culminating in this case coming before the Supreme Court in 1886 (7 years later), the year of the Chicago Haymarket Riot, which "Riot" culminated in Labor Organizers being HANGED on sketchy, if any, evidence, for the crime of seeking collective bargaining, safe working conditions, a fair wage, and an 8-hour work day. Racist (Anti-Immigrant) laws and racially biased (Anti-Immigrant) enforcement of superficially racially-neutral statutes was rampant in America then. Think, then, in terms of this Judgement arising in the same days as labor union suppressions occuring by labor union leaders being murdered under color of law and a sham of judicial process.
Mr. Presser's arguments, as summarized in the Judgement of the Supreme Court, (taken here from the Judgement) are quite similar to those of the Defendants in this matter: (emphasis added)
Analyzing Mr Presser's claims:
Inspecting the Courts' analysis of Mr Presser's claims, first the Court [116 U.S. 252, 265] refused to consider his complaint against the State Militia Code (which complaint should have acquitted him), saying that the prohibition to assemble, under which Mr. Presser was indicted, could have been written as a separate statute (except it simply couldn't), and on that view his complaint against the whole code was deemed not before the Court. The Court also [116 U.S. 252, 269] declared that state prohibitions on men assembling together to train in militiary skills did not obstruct Congress' law requiring that all men do exactly that. Thus we see a prejudiced court is a pernicious corruption of everybody's hope for justice.
On the subject of the Second Amendment, the Court wrote (formatted into separate points for commentary, emphasis added):
- We think it clear that the sections under consideration, which only forbid bodies of men to associate together as militiary organizations, or to drill or parade with arms in cities [116 U.S. 252, 265] 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 [second] 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, 92 U.S. 542, 553, 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, leaving the people to look for their protection against any violation by their fellow-citizens of the rights [to keep and to bear arms] it recognizes to [State law].
- It is undoubtedly true that all citizens capable of bearing arms constitute the reserved militiary 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 [116 U.S. 252, 266] it clear that the sections under consideration do not have this effect.
Rebuttal and commentary on the Judgement:
Conclusion: Study of this Judgement destroys the statute of New York at bar, and declares that the Second Amendment (in effect if not in name) is binding upon the States independent of the 14th Amendment.
Mr. Beard was convicted of Manslaughter for an act of self-defense. The trial court Judge gave instructions to the Jury that if Mr. Beard had not retreated as far as he safely could, then his self-defense claim was invalid. Several states have similar duty to retreat laws. This judgement overrules them all, and shows a few things pertinent to the case at hand:
The key language of the Court is this [158 U.S. 550, 559, 560]:
But we cannot agree that the accused was under any greater obligation when on his own premises, near his dwelling house, to retreat or run away from his assailant, than he would have been if attacked within his dwelling house. The accused being where he had a right to be, on his own premises, constituting a part of his residence and home, at the time the deceased approached him in a threatening manner, and not having by language or by conduct provoked the deceased to assault him, the question for the jury was whether, without fleeing from his adversary, he had, at the moment he struck the deceased, reasonable grounds to believe, and in good faith believed, that he could not save his life or protect himself from great bodily harm except by doing what he did, namely, strike the deceased with his gun, and thus prevent his further advance upon him. Even if the jury had been prepared to answer this question in the affirmative,- and if it had been so answered the defendant should have been acquitted,- they were instructed that the accused could not properly be acquitted on the ground of self-defense if they believed that by retreating from his adversary, by 'getting out of the way,' he could have avoided taking life. We cannot give our assent to this doctrine.
The Court then inspected several cases of self-defense prosecuted as murder or manslaughter, overturning convictions where these key elements were present: the killer had a right to be where he was, the killer did not provoke the altercation, and the killer was not guessing, but was sure, that his life was in danger by means of a felonious assault by the (soon to be) deceased.
Note that shooting the highway robber of olde (or modern car jacker) was always justifiable. The fact that self defense on our premises is a right requires that we are free from State laws making a crime of peaceably keeping arms; the right of self-defense on the highway or anywhere else we "have a right to be" requires that we are free from State laws making a crime of our peaceably bearing arms. This judgement underscores the common law Right of Self Defense (vide supra), the right of arms is inseparable. The statute at bar makes self-defense at home or abroad neigh impossible, and is therefore unconstitutional.
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