Replies

Part 13: Dred Scott v. Sandford, 60 U.S. 393, U.S. v. Cruikshank, 92 U.S. 542.

Due Process
1. 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.
  1. Dred Scott v. Sandford, 60 U.S. 393 (1856)
    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".
  2. U.S. v. Cruikshank, 92 U.S. 542 (1875)
    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)
    1. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. Slaughter House Cases, 16 Wall. 74.
    2. We now proceed to an examination of the indictment, to ascertain whether the several rights, which it is alleged the defendants intended to interfere with, are such as had been in law and in fact granted or secured by the constitution or laws of the United States.
    3. The first and ninth counts state the intent of the defendants to have been to hinder and prevent the citizens named in the free exercise and enjoyment of their 'lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceful and lawful purpose.' The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It 'derives its source,' to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, 'from those laws whose authority is acknowledged by civilized man throughout the world.' It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. As no direct power over it was granted to Congress, it remains, according to the ruling in Gibbons v. Ogden, id. 203, subject to State jurisdiction. Only such existing rights were committed by the people to the protection of Congress as came within the general scope of the authority granted to the national government.
      The first amendment to the Constitution prohibits Congress from abridging 'the right of the people to assemble and to petition the government for a redress of grievances.' This, like the other amendments proposed and adopted at the same time, was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National government alone. 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.
    4. The second and tenth counts are equally defective. The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States.
    5. The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society. As was said by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat. 244, it secures 'the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.' These counts in the indictment do not call for the exercise of any of the powers conferred by this provision in the amendment.
      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,
    1. This holding is a lie. As of the ratification of the 14th Amendment, the rights of a citizen of a state start with the rights of a citizen of the United States, and may get larger, but may not suffer reduction. These Judges held here that the words of the 14th Amendment have no effect. They cited Barron v. Baltimore, which was rather obviously overruled by the 14th Amendment 8 years earlier. Also, they completely contradicted themselves in point 5.
    2. This holding is likewise a lie. Note here that the Rights operated on by the Federal law at bar in Cruikshank are those granted or secured by the laws or Constitution of the United States. The Judges looked at whether those rights were granted by the Constitution, but ignored rights thereby secured. The 2nd Amendment secured the Right of Arms to the Citizens of the United States, just as the 1st Amendment secured them (not granted them) the Right of Assembly. Those secured rights are therefore under the Statute at bar in Cruikshank, but the Court refused to obey the statute.
    3. This finding betrays the double-speak minds of the Court: They assert that Rights merely secured by the Bill of Rights are subject to the jurisdiction of the states, which includes both protection and destruction thereof. This again is the Doctrine of Barron v. Baltimore. But the Court then wrote that the State HAS AN OBLIGATION to protect that right. Then the Court refuses to afford that right any protection at all. Also the Court declared that rights were "committed by the people to the protection of the Congress as came with the general scope of the authority granted to the national government", then turned a blind gavel to language that did exactly that: what part of "the right of the people to keep and bear arms shall not be infringed" leaves any room for invasion by the States?
    4. This finding repeats the above double-speak: rights not granted by the Constitution of the United States are held to be not under the federal statute at bar in Cruikshank. The Right of Arms was not granted by the Constitution, nor by the Bill of Rights. It was secured by the Second Amendment. It is therefore under the federal statute at bar in Cruikshank. The Court refused to obey this. Of great note to the matter at bar are the words: "This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence." This quote has been mis-presented as denial of the Right to Arms by the anti-gun crowd, but in fact this only declares it a pre-existing right. The Judges, in writing this decision, refer to the Right of Arms as pre-existing so as to declare it not granted by the Constitution, which is their pretext for disallowing protection of that right under the statute at bar in Cruikshank.
    5. The last cite betrays how the Judges excused mass murder to settle elections in the County as not prosecutable under the statute in Cruikshank:
      Since the several hundred white killers were not in uniform or otherwise explicitly acting in the name of an office of the state government, the mass murder was declared by the Court to be an action by individuals, not the state, and therefore not an act which the 14th Amendment prohibited, and therefore not an act the federal statute could punish. This was a point of cause for the origin of the KKK: By taking off the uniform and putting on the sheet & hood, a Sheriff could act outside of the reach of the 14th Amendment, but if he committed the same crimes with the sheet off and the uniform on, he would be prosecutable under legislation arising under the 14th Amendment.
    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.

Part 13: Presser v. State of Illinois, 116 U.S. 252, Beard v. U.S., 159 U.S. 550.

Presser v. State of Illinois, 116 U.S. 252 (1886)
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:
1. To belong to an unlicensed organization (this law would have sent The Minutemen to prison for 6 months);
2. to participate in the activities of such an unlicensed organization (This law would have sent Boston's Sons of Liberty to prison);
3. to parade with this unlicensed organization without a parade license.
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)
1. 'Article 1, 8. The congress shall have power ... to raise and support armies; ... 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; ... to make all laws which shall be necessary and proper, for carrying into execution the foregoing powers,' etc.
2. 'Article 1, 10. No state shall, without the consent of congress, keep troops ... in time of peace.'
3. 'Art. 2 of Amendments. 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.'
4. The plaintiff in error also contended that the enactment of the fifth and sixth sections of article 11 of the [Illinois] Military Code [116 U.S. 252, 261] was forbidden by subdivision 3 of section 9 of article 1, which declares 'no bill of attainder or ex post facto law shall be passed,' and by article 14 of Amendments, which provides that '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.'
5. The first contention of counsel for plaintiff in error is that the congress of the United States having, by virtue of the provisions of article 1 of section 8, above quoted, passed the act of May 8, 1792, entitled 'An act more effectually to provide for the national defense by establishing an uniform militia throughout the United States,' (1 St. 271,) the act of February 28, 1795, 'to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions,' (1 St. 424,) and the act of July 22, 1861, 'to authorize the employment of volunteers to aid in enforcing the laws and protecting public property,' (12 St. 268,) and other subsequent acts, now forming 'Title 16, The Militia,' of the Revised Statutes of the United States, the legislature of Illinois had no power to pass the act approved May 28, 1879 [the Lehr und Wehr Verein was 4 years old, making the prohibition thereon, under which Mr. Presser was convicted ex post facto], 'to provide for the organization of the state militia, entitled the 'Military Code of Illinois,' under the provisions of which (sections 5 and 6 of article 11) the plaintiff in error was indicted.
6. The argument in support of this contention is, that the power of organizing, arming, and disciplining the militia being confided by the constitution to congress, when it acts upon the subject, and passes a law to carry into effect the constitutional provision, such action excludes the power of legislation by the state on the same subject.
7. It is further argued that the whole scope and object of the Military Code of Illinois is in conflict with that of the law of congress. It is said that the object of the act of congress is to provide for organizing, arming, and disciplining all the able-bodied male citizens of the states, respectively, between certain ages, that they may be ready at all times to respond to the call of the nation to enforce its laws, suppress insurrection, and [116 U.S. 252, 262] repel invasion, and thereby avoid the necessity for maintaining a large standing army, with which liberty can never be safe, and that, on the other hand, the effect if not object of the Illinois statute is to prevent such organizing, arming, and disciplining of the militia.
8. The plaintiff in error insists that the act of congress requires absolutely all able-bodied citizens of the state, between certain ages, to be enrolled in the militia; that the act of Illinois makes the enrollment dependent on the necessity for the use of troops to execute the laws and suppress insurrections, and then leaves it discretionary with the governor by proclamation to require such enrollment; that the act of congress requires the entire enrolled militia of the state, with a few exemptions made by it and which may be made by state laws, to be formed into companies, battalions, regiments, brigades, and divisions; that every man shall be armed and supplied with ammunition; provides a system of discipline and field exercises for companies, regiments, etc., and subjects the entire militia of the state to the call of the president to enforce the laws, suppress insurrection, or repel invasion, and provides for the punishment of the militia officers and men who refuse obedience to his orders. On the other hand, it is said that the state law makes it unlawful for any of its able-bodied citizens, except 8,000, called the 'Illinois National Guard,' to associate themselves together as a militiary company, or to drill or parade with arms without the license of the governor, and declares that no militiary company shall leave the state with arms and equipments without his consent; that even the 8,000 men styled the 'Illinois National Guard' are not enrolled or organized as required by the act of congress, nor are they subject to the call of the president, but they constitute a militiary force sworn to serve in the militiary service of the state, to obey the orders of the governor, and not to leave the state without his consent; and that, if the state act is valid, the national act providing for organizing, arming, and disciplining the militia is of no force in the state of Illinois, for the Illinois act, so far from being in harmony with the act of congress, is an insurmountable obstacle to its execution. [116 U.S. 252, 263]
Analyzing Mr Presser's claims:
- Points 1,7, & 8 asserted that the State of Illinois practice and law of establishing a select militiary power of 8,000 men, which Illinois did to the exclusion of any other groups forming and training together, was disobedient to the "discipline prescribed by Congress" (art 1 § 8 cl 16) under the federal militia acts (1792, 1795, & 1861), therefore, Illinois was in neglect of it's duty under the Militia Act. This is a key assertion. This assertion never was considered by the Court. Mr Presser asserted Illinois had no standing to make the Lehr und Wehr Verein (or any other militiary club consistent with "the discipline prescribed by Congress") illegal for it's lack of a license: The State has authority to implement the training pattern prescribed by Congress, but can't forbid men to organize and train per Congress' authority when the State neglects to do so (see 10th Amendment). Congress had power to prescribe training, the administration of which was left to the States (Art 1 § 8 cl 16). The 10th Amendment reserves to the people any powers that are nominally reserved to the States which the States neglect. After all, the State is nothing but the sum of the people. If the sum neglects, each part may perform so as to cure the neglect. Illinois, in training only 8,000, neglected Congress' law to train all the hundreds of thousands of people, leaving it to the people to do the State's duty towards themselves. Sum: Illinois' anti-militia statute forbade men such as Mr. Presser from obeying Congress; ergo the part of the statute forbidding the Lehr und Wehr Verein was in violation of the Constitution and federal law.
- Points 2 & 8 asserted the Illinois practice of training 8,000 select volunteers and forbidding others to train to be a keeping of troops, forbidden by the Constitution (moreso when these 8,000 are declared to be independent of and immune to Presidential call-up). Mr. Presser raised as a defense that he was obeying Federal law, and that Illinois violated that same Federal law, and the prosecution did not prove (nor did the Court require such proof) that Mr. Presser's defense of obedience to Congress' law was not accurate, complete, valid, or anything else. It was simply ignored.
- Point 3 asserts that we not only have a right to keep and bear arms, we have a right to tend to the security and freedom of our States by assembling and training together as Militia. The Court never questioned the right of the people to keep and to bear their arms.
- Point 4 raises the 14th Amendment argument: enjoying the right and exercising the power of the Second Amendment is a privilege and immunity which the Illinois State code forbade; the 14th Amendment annulled the Military Code of Illinois to the extent that it forbade exercise of the Second Amendment right and power by individuals or groups. This Amendment also forbids Illinois from prosecuting Mr. Presser for being obedient to federal law.
- Points 5, 6, 7, and 8 show that the Court understood the defendant's counsel (if Illinois is by Federal law to train all men, then Illinois forbidding men to gather together to train is impossible), but the Court simply would not let black folk of any description sit in the front of the Second Amendment Street bus: the authority to establish who is to be trained is federal, not state; the power left to the state is to administer the training not neglect or criminalize it. How much more unconstitutional can you get?
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):
1. 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.
2. 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.
3. 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].
4. 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.
5. 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:
1. Whereas laws forbidding associations violate the First Amendment; the Court, in upholding laws forbidding associations, held the First Amendment not to mean anything to the state. Also note they hold there to be a right to keep and bear arms which does not belong to the federal government, nor to the state government, nor to state-sanctioned groups only. The Court held it belonged to individuals, not groups, in that individuals had standing to claim a right to arms, but groups did not.
2. This is the same lie raised in Barron v. Baltimore, debunked above.
3. This assertion acknowledges the Right to Arms as belonging to the people as was said in Cruikshank, and holds the Second Amendment as restraining the federal government, with a duty belonging to the state to not restrain it, either. Thus the Court denied the words of the Second Amendment, then put back all the meaning. The Court asserted the right to keep and bear arms does belong to the individuals, but training groups is and always has been a state prerogative. We have seen that it is not a state prerogative, it is a state duty. Prerogatives may be ignored, duties must be fulfilled.
4. This point refutes and annuls EVERY law passed by ANY state to ban ANY gun of ANY type. This point declares the Right to Arms independent of the Constitution, (even independent of the second amendment, regardless of how one would 'interpret' that amendment), stating in effect that even if there were no Second Amendment, the States still could not by law disarm us so as to render the United States less well defended. Please, folks, read and re-read this slowly: "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms." The Court overturned Barron v. Baltimore, which it had just cited above.
5. This is simple denial by the Court: we're not only to be armed, under Federal law we're to be trained together. The law in question did precisely obstruct people training together, which does directly impact (infringe) our capacity to act in concert to the defense of our Nation, or our State. Illinois' statute did plainly obstruct obedience by Mr. Presser to the Federal Militia laws, and obstructed his right to have anything to do with the "well regulated militia" thereof. Too bad he was German, not English; too bad he was a common laborer, not a landowner or shopowner; too bad he was a Unionist and not a Favored Person.
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.
Beard v. U S, 158 U.S. 550 (1895)
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:
- that there is a right to self defense that cannot be made a crime by statute or by instructions to the jury;
- that the right of self defense justifies going about armed and peaceable (as elsewise than being armed, self-defense is impossible);
- that we cannot be required to retreat, either into our homes nor behind the shelter of 911 before we may defend ourselves with lethal force.
- although Mr. Beard used his shotgun as a club rather than as a gun, he was justified in killing in self defense by whatever means was sufficient to the need, which justifies Citizens of New York in possessing handguns, with or without permission, and carrying them peaceably on their persons at home or abroad as they see fit.
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.

Due Process

The Right of Arms.