A skill not easily mastered, is that of interpreting silence. The Right of Arms itself was not debated anywhere in the time period in question (1787-1791). Debate arose on whether that right was threatened, not whether it existed, and whether a Bill of Rights reciting that right was the cure for the threat. laughable to the members of the first Congress. Fisher Ames, representative from Massachusetts in the First Congress, described Mr. Madison's proposed Bill of Rights in a letter to Thomas Dwight: "...<lists most of the original amendment proposals, excepting what is now Amendment 2> This is the substance. There is too much of it. Oh! I had forgot, the right of the people to bear arms. Friends, withhold your laughter?" (OSA (DHBR) p668). -->
Germane to the Defense against the criminal charge laid against us is that, along with every other state, New York, via it's ratification debates upon the Constitution itself, it's senator's and representative's votes on the (proposed) Second Amendment, and in it's State ratification debates on the Second Amendment, supported the individual, uninfringeable Right of Arms.
New York began ratification debates on the proposed federal Constitution 26 July 1788. Their work resulted in a lengthy oratory on human rights, and a proposed bill of rights, for like Virginia, New York's ratification of the Constitution was made contingent on the creation of a Bill of Rights. Among the many things in that lengthy proposed Bill of Rights:
"That the people have a right to keep and bear Arms; that a well regulated militia, including the body of the people capable of bearing Arms , is the proper, natural, and safe defence of a free State;
"That the Militia should not be subject to Martial Law, except in time of War, Rebellion, or Insurrection. (Bickford & Viet, 4:20, italic emphasis original!)
Summary: The Right to Arms belongs to every individual. New York cannot deny it's own role in establishing both the Constitution of the United States, and the Bill of Rights, as protecting what New York State declared was an unabridgeable, inviolable, individual right: The Right of the People to Keep and Bear Arms. New York has recognized the personal right to arms as independent of and superior to the statutory authority of the states, existing in every state, and every state has recognized the same as existing in New York. This statute seeks to contravene this precious right.
Throughout the Constitution, "People", "States", "Congress", "Power" and "Right" arise constantly. Some few speakers, albeit influential with Legislators, Executives, and Judges, attribute the Right to Keep and Bear Arms, as delineated in the Second Amendment of the Constitution or the United States, as something belonging to the States, severally, or to organized groups operating under state sanction and control, and not to individuals personally. The following argument by Stephan Halbrook Esq. from his Amicus brief in U.S. vs Emerson, debunks such doctrine.
THE CONSTITUTIONAL TEXT CONSISTENTLY
USES "THE RIGHT OF THE PEOPLE" TO REFER TO
INDIVIDUAL RIGHTS, AND DESCRIBES STATE
PREROGATIVES AS "POWERS"
The Second Amendment to the U.S. Constitution provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."
The defendant here [Dr. Emerson] is charged with possession of a firearm after a court entered a routine divorce order, without making any findings, prohibiting him from using physical force against an intimate partner. See 18 U.S.C. § 922(g)(8). If the Second Amendment guarantees the personal right of an individual to keep firearms, then the prohibition on possession of a firearm based solely on entry of a court order without findings is unconstitutional.
The following sets forth a textual analysis of the Second Amendment.
The Constitution utilizes consistent word choice throughout: the "United States" and the "States respectively" have "powers," while only "the people" have "rights," although the people also have "powers." "'The people' protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community . . . ." United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990).
In fact, the term "right" is always used to refer to individuals, which are usually referred to as "the people." See
The Framers also knew how to distinguish the "militia" when on duty from the term "the people." The Fifth Amendment provides in part:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except . . . in the Militia, when in actual service in time of War or public danger . . . ."(Emphasis added.) Thus, "the right of the people to keep and bear arms" cannot be limited to the exercise of that right only by "the Militia, when in actual service," an argument suggested by those who claim that the Second Amendment protects only the National Guard. Quite simply: the Second Amendment does not refer to "the right of the militia, when in actual service, to keep and bear arms." The Framers used such language elsewhere and did not find it appropriate for the Second Amendment.
The federal and state governments have powers, not rights. E.g.,
It is striking that the State power to maintain militias vis-à-vis the federal militiary power was already treated in the text of the Constitution before the Bill of Rights was proposed, and the language of this State power does not contain the individual-rights vocabulary of the Second Amendment. Article I, § 8, Cl. 15 & 16 provide that "Congress shall have power":
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;" (Emphasis added.)
Thus, "power" and "authority" (not "right") over the militia are "reserved" (not "shall not be infringed") to "the States respectively" (not "the people"). In other words, the state power over the militia is reserved to the states respectively, but the right to keep and bear arms is reserved to the people.
Further, "[t]he Congress shall have power" "to raise and support armies" and a navy, Article I, § 8, Cl. 12 & 13, but "no state shall, without the consent of Congress, . . . keep troops, or ships of war in time of peace, . . . or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay." Article I, § 10, Cl. 3. The contrasting use of the word "keep" is instructive. No state shall "keep troops," but the people have a right to "keep . . . arms." The Second Amendment does not say that "the power to keep militia troops is reserved to the States respectively." Notice also that "the people" have the right to "bear arms"; it makes sense to say that no state shall "keep troops," but it would be strange to say that a state shall or shall not "bear arms," because a state cannot carry arms, only an individual can. Of course, the Framers could have said that "no state shall keep troops who bear arms unless actually invaded, or in such imminent danger as will not admit of delay." But that strict limitation does not exist in the Second Amendment. "The people" have a right to keep and bear arms on a permanent basis, and are not limited to bearing arms as state troops when the state is "actually invaded, or in such imminent danger as will not admit of delay."
The term "the States respectively" reappears in the Tenth Amendment, where it is distinguished from "the people": "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." As examples, the power to raise armies is delegated to the United States and prohibited to the States, while the power over the militia is reserved exclusively to the States, except as delegated to Congress in Article I, § 8. The Tenth Amendment clarifies that "the people" have "powers" as well as "rights." These powers include suffrage, jury service, militia service, and other institutions in which the people govern, administer justice, keep order, and otherwise participate in political society. E.g., U.S. Const., Art. I, §2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second year by the People of the several States"). By contrast, the state and federal governments have "powers" only and no "rights." Only individuals have "rights."
Finally, governmental powers are "delegated" or "reserved"; only rights retained by the people may not be "abridged" or "infringed," terms found in the First and Second Amendments. The former refer to authorized powers of government, while the latter refer to individual rights excepted from the exercise of governmental powers.
The Second Amendment begins with a clause declaring a political principle about the militia, followed by a clause declaring a substantive right. Its structure is equivalent to the following: "A well educated citizenry, being necessary to the culture of a free state, the right of the people to keep and read books, shall not be infringed." It would hardly do to argue that a government-selected intelligentsia is today's well educated citizenry and thus that this group is the only entity with the right to keep and read books. Indeed, the right would extend to people who were not "well educated," since they are among "the people." Nor is it tenable to argue that the National Guard is the militia, only its members have a right to keep and bear arms, and then only when on duty.
In short, the constitutional text mandates the conclusion that the Second Amendment guarantees a personal, individual right to keep arms.
End of quote.
Comment: "A well educated electorate, being necessary to the security of a free state, the right of the people to own and read books shall not be infringed" paraphrased from Mr. Halbrook's Amicus brief above, does not only not limit book ownership to a "state-licensed intelligentsia", nor even only to registered voters, it further does not limit what books we may own to those on a list of state-approved texts of political nature. Book ownership in it's entirety is reserved completely out of the powers of government. We may write our own, large or small as we please, publish to sell to whom we please, rip out pages of books we make or buy that we don't like and make "short-barrelled bibles", but when we invade the peace or freedom of another, we then "need hangin'!".
Summary: Whereas it is obvious that the right of the people to keep and bear arms is reserved out of the powers of government, the State cannot pretend that prohibitions on individuals keeping their own arms is within it's police powers. This statute is violative of the Second Amendment, and is unconstitutional. It also has been demonstrated that any "collectivist" reading of the Second Amendment is groundless.
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.