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St. George Tucker versus Saul Cornell on the Second Amendment:

Ohio State history professor Saul Cornell is the author of the new book A Well Regulated Militia: The Founding Fathers and the Origins of Gun Control in America (New York: Oxford University Press, 2006), and of the law review article "St. George Tucker and the Second Amendment: Original Understandings and Modern Misunderstandings," 47 W. & M. L. Rev. 1123 (Feb. 2006). Cornell is a talented writer and researcher, but his treatment of some topics is extremely misleading. In a new draft article, "St. George Tucker's Second Amendment: Deconstructing 'The True Palladium of Liberty'," Stephen P. Halbrook takes the reader step-by-step through Tucker's monumentally influential annotated American Blackstone, the most important legal treatise of the Early Republic. Analyzing Tucker's Blackstone, and other writings by Tucker, Halbrook shows that Tucker explicitly recognized the Second Amendment as an individual right, including the right to posses firearms for personal self-defense, unrelated to militia duty. As Halbrook proves, Cornell has built has argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell's thesis.

Caliban Darklock (www):
Sounds like... academia.

Oh, snap!
10.13.2006 6:48pm
DJ (mail):
I really don't get the fetish with Blackstone and Tucker and the text of the Second Amendment. Fun stuff, to be sure, but shouldn't the original understanding of the framers of the FOURTEENTH AMENDMENT be the central inquiry in the constitutional scholarship of this issue? After all, most gun control regulation (as far as I know) is taking place in the states. And Akhil Amar has pretty persuasively determined that the drafters of the Civil War Amendments believed that gun ownership was a critical private right of all American citizens--especially of the freedmen, who were victims of domestic terrorists and of local government officials who turned a blind eye to their depredations.

Enough with Tucker. Let's start to celebrate the real hero of our constitutional right to firearms: John Bingham.
10.13.2006 8:28pm
Paul Johnson (mail):
I long ago swore never to read an article with any variation of the word "deconstruction" in the title.
10.13.2006 8:48pm
GunShowOnTheNet.com (mail) (www):
Not only is it the "True Palladium of Liberty", but is the First Law of Nature. And the whole basis of our Constitution is "the great principle of self-preservation; to the transcendent law of nature and of nature's God..." (See Federalist #43) -

And it is most assuredly an Individual Right:

Journal of the Senate of the United States of America,

WEDNESDAY, SEPTEMBER 9, 1789.

"...On motion to amend article the fifth, by inserting these words, 'for the common defence,' next to the words 'bear arms:'

"It passed in the negative.

"On motion to strike out of this article, line the second, these words, 'the best,' and insert in lieu thereof 'necessary to the:'

"It passed in the affirmative.

"On motion, on article the fifth, to strike out the word 'fifth,' after 'article the,' and insert 'fourth,' and to amend the article to read as follows: 'A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.'

"It passed in the affirmative...."

"...Resolved, That the Senate do concur in the resolve of the House of Representatives, on "Articles to be proposed to the legislatures of the states, as amendments to the constitution of the United States," with the amendments; two thirds of the Senators present concurring therein.

"Ordered, That the Secretary do carry a message to the House of Representatives accordingly.

And it was NEVER intended to be touched upon by any government, be it local, state or federal:

"I. Natural Rights of the Colonists as Men;

"Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature...."

"In short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the
grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation." - Samuel Adams and Benjamin Franklin, 'The Rights of the Colonists', (November 20, 1772).

"It is a fortunate thing that the objection to the Government has been made on the ground I stated; because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution, which is considered as essential to the existence of the Government by those who promoted its adoption...."

"In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

-James Madison, June 8, 1789 House of Representatives, Amendments to the Constitution 8 June, 21 July, 13, 18—19 Aug. 1789 Annals 1:424—50, 661—65, 707—17, 757—59, 766.

"I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.

"The defence of one's self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not
confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation — of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice."

- James Wilson, from a series of lectures given between 1790 and 1792, 'Wilson, Of the Natural Rights of Individuals', in 2 The Works of James Wilson 335 (J.D. Andrews ed. 1896).

"The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things. While these continue to be the same, it must continue to be the same also. This immutability of nature's laws has nothing in it repugnant to the supreme power of an all-perfect Being. Since he himself is the author of our constitution; he cannot but command or forbid such things as are necessarily agreeable or disagreeable to this very constitution. He is under the glorious necessity of not contradicting himself. This necessity, far from limiting or diminishing his perfections, adds to their external character, and points out their excellency.

"The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.

"This law, or right reason, as Cicero calls it, is thus beautifully described by that eloquent philosopher. "It is, indeed," says he, "a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind."

- James Wilson, [The Works of the Honourable James Wilson, L.L.D.; Chap. III Of the Law of Nature]. Mr. Wilson signed the Declaration of Independence and the U.S. Constitution. In addition he was a delegate to the Constitutional Convention and a U.S. Supreme Court Justice.

"The right of self-defense in these cases is founded in the law of nature, and is not, and cannot be superceded by the law of society. In those instances, says Sir Michael Foster, the law, with great propriety, and in strict justice, considers the individual to be under the protection of the law of nature."

- James Kent, 1763--1847, [Commentaries on American Law - Vol. II, Lect. XXIV, Of the Absolute Rights of Persons, (1826-30)]. Chief Judge N.Y. Supreme Court, First Professor of Law at Columbia College.

And the judges ruling by 'stare decisis' is utter nonsense and repugnant as well:

"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the People is SUPERIOR to both; and that where the will of the legislature, declared in its statutes, stands in OPPOSITION to that of The People, DECLARED IN THE CONSTITUTION, the judges ought to be governed by the LATTER rather than the former. They ought to regulate their decisions by the FUNDAMENTAL LAWS, rather than by those which are NOT fundamental.

"But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former...."

"...It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A CONSTITUTION is, in FACT, and MUST be regarded by the judges, as a FUNDAMENTAL law." - Alexander Hamilton, Federalist #78

All 'gun control' is Constitutionally Repugnant, and an illegal usurpation of authority.
10.13.2006 8:52pm
Dave Hardy (mail) (www):
Let's start to celebrate the real hero of our constitutional right to firearms: John Bingham.

Hear! Hear!
10.13.2006 9:47pm
logicnazi (mail) (www):
I'm generally in favor of gun control as a matter of policy. However, I think the idea that the 2nd ammendment can be read to only give citizens to carry arms in state approved militias, especially ones controlled by the federal government as is the case now, is just totally absurd. It is evident that one of the primary intents of the 2nd ammendment was to give the people the ability to defend themselves against a tyranical government. Obviously this requires the individual citizens be armed not merely the state have ammo depots that are effectively controled by the federal government anyway.

However, there are two different notions of self-defense at issue here. There is the question of the defense of the individual against the state and that of the individual against other citizens. I have not yet been convinced that the original intent of the second ammendment was meant to guarantee the later. This has important practical consequences since if the 2nd ammendment merely protects the right of individuals to defend themselves against a tyranical state handgun regulations should be perfectly fine, though rifle and assault rifle regulations are problematic.
10.13.2006 10:20pm
Siona Sthrunch (mail):
I don't understand the utility of arguing against gun control. The main argument against it is that it unconstitutionally increases the power of the government. But the government's goal is to increase its power, so it is unlikely to swayed by argument. And the people lack the power to resist. Therefore, why argue?

The increase in gun control over the centuries seems to me to be an unavoidable consequence of the increasing power of the government over that time. I just don't see the point in whining about it or excitedly waving learned treatises about - nobody in a position to make these changes cares about these arguments. The constitution is not a document that people pay attention any more on important matters anyway.
10.13.2006 10:32pm
logicnazi (mail) (www):
GunShowOnTheNet.com,

Where to begin. First of all your prior quotes (having been handpicked may not give a fair picture) don't support your conclusion that all gun control is repugnant, by which I take it you mean unconstitutional. At best they support the notion that any gun control that precludes the ability of the people to defend themselves and their property is unconstitutional. Things like five day waiting periods or restrictions on the number of guns that can be purchased certainly ought to be fine. Also it is unclear whether restrictions on the kind of guns (outlawing saturday night specials) are problematic either.

Secondly it is unclear to me from your quotes whether or not there is a right to defend yourself from your neighbor or merely to defend yourself from a tyrannial government. More context is necessery. The quotes you give about divine law and transcendent nature actually hurt your case. All I need to do is argue that in fact divine/transcendent law favors gun control and it would seem I show the constitution actually allows it. Besides, many of these quotes show only the beliefs of particular individuals and may not represent overall opinion.

Thirdly, it seems clear that the framers distingushed between the right to keep individual arms and the right to own cannons or naval ships. Thus there is the comlex task of deciding how to extend that line to modern weaponry. For instance a nuclear weapon clearly is not covered by the 2nd ammendment but is an assault rifle?

Finally your argument about stare decisis is just broken as the framers were well aware of the role of precedent in English common law and implitly incorporated that into the constitution. In fact without the concept of stare decisis no common law system could work as the laws would change ever time you had a new appointment to the bench and this was certainly recognized by the framers.

--

DJ,

Let's grant that the writers of the 14th ammendment thought the 2nd ammendment was individual this still doesn't solve the problem even for the states. The writers of the 14th ammendment also thought they were incorporating (to the extend they thought about incorporation at all) the correct understanding of the 2nd ammendment.

As a simple example suppose I tell you, "Do whatever John told you to do," thinking John told you to clean your room. Now if John really told you to mow the lawn my misunderstanding is irrelevant, you can only comply with my command by mowing the lawn not by cleaning your room.

In short so long as the writers of the 14th ammendments didn't specifically understand the ammendment to be imposing their understanding it really is the writers/acceptors of the 2nd ammendment whose understanding matters.
10.13.2006 10:40pm
33yearprof (mail):
"..., Cornell has built has argument through highly selective quotations and the omission of portions of the treatise which directly contradict Cornell's thesis."

First Michael Bellelies, now Saul Cornell. Desparate men do not produce quality scholarship.
10.14.2006 12:05am
DJ (mail):
No, logicnazi, the drafters of the 14th Amendment specifically understood that the Amendment protected citizens personal and individual right to bear arms. That's so for two reasons: First, that's what they clearly said. And, second, it would make utterly no sense to read the 14th Amendment to incorporate a "collectivist" or "states right" understanding of the 2nd Amendment because the 14th Amendment was intended, after all, to guarantee rights of citizens--not states.

Read Amar.
10.14.2006 1:06am
juris_imprudent (mail):
logicnazi,

Secondly it is unclear to me from your quotes whether or not there is a right to defend yourself from your neighbor

Given the absence way back when of a police force, and the machinery of criminal justice that we now take for granted - how do you THINK they intended for people to preserve themselves against the depradations of their "neighbor"? Why, given the precedent that the police/state are under no positive obligation to assure your safety, would you suppose that there is any question as to a right to [armed] self defense?
10.14.2006 1:09am
Andy Freeman (mail):
> At best they support the notion that any gun control that precludes the ability of the people to defend themselves and their property is unconstitutional. Things like five day waiting periods

What if those are the five days that I need defending?

> or restrictions on the number of guns that can be purchased certainly ought to be fine.

Absolutely - there's no constitutional protection for lots of presses.

> (outlawing saturday night specials)

And poor people, especially those poor people, surely don't need guns.

SNS is a term invented for one of the first gun control campaigns in the US. Some things never change - it's the same appeal every time. The only thing that changes is the dress on the white woman.
10.14.2006 1:37am
John_R (mail):
When you originally post about Cornell's book, you linked to an online debate he was having and I pointed out to Cornell that the 18th century usage "regulated" was commonly used as an adjective regarding firearms, meaning "correct" or "accurate" , and that our contemporary tendency to use the term to mean "to control" might be missplaced. He told me I needed to read the Federalist Papers, I figured it would be a waste of time to point out to him Federalist #29 uses language that supports my interpretation of "regulated", being he's a PhD and I'm not.


"...This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.''
10.14.2006 2:56am
American Psikhushka (mail) (www):
juris_imprudent-

Why, given the precedent that the police/state are under no positive obligation to assure your safety, would you suppose that there is any question as to a right to [armed] self defense?

I know this has taken on the aura of urban legend, even among the legal community. But surely there are limits to this. I mean if a police department knows of a torture and rape ring that repeatedly and continuously operates in their jurisdiction surely they have some obligation to act and make stopping the ring a somewhat higher priority than writing traffic tickets. That is unless they are protecting the ring or afraid of it - but even then any honest, responsible personnel they would seem to have an obligation to report it to other agencies.
10.14.2006 4:38am
GunShowOnTheNet.com (mail) (www):
What is the purpose of a Constitutional Republic? Is it not to set certain ground-rules, a frame-work, if you will? To clearly outline what may be done, as well as what may NOT be done? Is not a Constitution Fundamental Law? The basis on which the whole structure is built? Are the servants allowed to arbitrarily bind their masters at will? NO. Our laws were meant to be made by following guidelines, as well as the consent of the governed. And the rights of the minority were never to be left upto the tyranny of the majority. No matter how plausible the reasoning or excuse.

Returning to the FACTUAL basis then, the fourteenth is irrelevant so far as for use in arguing the Second. Since the Second is TRUE Fundamental Law. All that one has to examine is the preamble to the original Amendment(s) itself:


The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;



Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely:


Amendment II -

Declaratory clause;

A well regulated militia, being necessary to the security of a free state, (Common Defense)

Restrictive clause;

the right of the people to keep and bear arms, shall not be infringed. (Individual Defense)

Which falls into line with the final argument in the Senate as shown here.

The argument is built here; The Right

The whole premise of our government is based upon freedom of the individual, and protection of the whole. And founded upon "the Laws of Nature and of Natures God". Which Laws are immutable, they cannot possibly be changed without causing havoc.

The courts have been increasingly altering our fundamental basis by technical constuctions. Going so far as to initiate the use of foreign law in making their decisions. As well as allowing the legislature(s) to pass laws that were clearly outside the scope of their delegated authority. Hence, that which was predicted by Patrick Henry has now come into actuality:


"The means, says the gentleman, (Mr. Madison), must be commensurate to the end. How does this apply? All things in common are left with this government. There being an infinitude in the government, there must be an infinitude of means to carry it on. This is a sort of mathematical government that may appear well on paper, but cannot sustain examination, or be safely reduced to practice. The delegation of power to an adequate number of representatives, and an unimpeded reversion of it back to the people, at short periods, form the principal traits of a republican government. The idea of a republican government, in that paper, is something superior to the poor people. The governing persons are the servants of the people. There, the servants are greater than their masters; because it includes infinitude, and infinitude excludes every idea of subordination. In this the creature has destroyed and soared above the creator. For if its powers be infinite, what rights have the people remaining? By that very argument, despotism has made way in all countries where the people unfortunately have been enslaved by it. We are told, the sword and purse are necessary for the national defence. The junction of these, without limitation, in the same hands, is, by logical and mathematical conclusions, the description of despotism." - Patrick Henry, Virginia Ratifying Convention, (06/14/1788)


Consider the preamble to the Constitution itself:


We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.



"This may be considered as the true palladium of liberty....The right of self-defense is the first law of nature..." - St. George Tucker, Blackstone's Commentaries



As well as the First Draft(s) to the Declaration:


"We hold these truths to be sacred &undeniable self-evident; that all men are created equal,&independent; that from that equal creation they derive in they are endowed by their creator with equal rights some of which are certain [inherent &] inalienable rights; that among which these are the preservation of life,&liberty, &the pursuit of happiness; that to secure these ends rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government shall becomes destructive of these ends, it is the right of the people to alter or to abolish it, &to institute new government, laying it's foundation on such principles &organising it's powers in such form, as to them shall seem most likely to effect their safety &happiness...." - Thomas Jefferson, John &Samuel Adams and Benjamin Franklin, Declaration of Independence, First Draft &Reported Draft, June 28, 1776.


And, speaking of the Civil War period:


"The Constitution and laws of the United States "are the supreme law of the land," anything in the Constitution or laws of any State to the contrary, notwithstanding." Their supremacy is thus declared in express terms: "Whatever conflicts therewith has no operative or obligatory force. Allegiance to the United States, and loyalty to the United States Constitution and laws, are the paramount duty of every citizen. Within their legitimate sphere, they command the obedience of all, and no State Coustitution or statute can absolve any one therefrom...."


As it is both the right and duty of every citizen to become fully informed upon all governmental affairs, so as to discharge his many political obligations intelligently at the ballot-box, and in other legitimate ways; and the freedom of the press and of speech are guaranteed to him for that as well as other essential purposes; and as the right of the people peaceably to assemble and petition for the redress of grievances, and to keep and bear arms, cannot be lawfully abridged or infringed..." - U.S. Circuit Court, DISTRICT OF MISSOURI, SPECIAL TERM, July 10, 1861


And;


"Most, if not all, of this information, except what I derived from the Attorney General, came to me orally, and was to the effect that said counties were under the sway of powerful combination, properly known as "Ku-Klux Klan," the objects of which were, by force and terror, to prevent all political action not in accord with the views of the members, to deprive colored citizens of the right to bear arms, and of the right to a free ballot; to suppress schools in which colored children were taught, and to reduce the colored people to a condition closely akin to that of slavery; that these combinations were organized and armed and had rendered the local laws ineffectual to protect the classes whom they desired to oppress; that they had perpetrated many murder, and hundreds of crimes of minor degree, all of which were unpunished; and that witnesses could not safely testify against them unless the more active members were placed under restraint." - President U.S. GRANT, Executive Mansion, April 19, 1872.


And quite a bit more proof(s) can be found here:

After The Fact

In addition to all of this, the governmen was never delegated ANY authority over the right to begin with. As shown here:


"Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.



"But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.


"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights." - Alexander Hamilton, Federalist #84



It appears that Mr. Hamilton was indeed correct in his assessment, yes?

And, finally, Tenche Coxe slams the point home here:


"Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tench Coxe, 'Remarks on the First Part of the Amendments to the Federal Constitution' using the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.



"Who are the militia? Are they not ourselves? ... Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright 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."
- Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.


Can a birthright be legally divested by anyone other than the one whom bestowed it?

Mr. Coxe was a prominent Philadelphian and political economist who was named assistant secretary of the treasury in 1790, commissioner of revenue in 1792, and purveyor of public supplies in 1803.

And there are ample Constitutionally CORRECT judgments which provide further proof:


"The language of the second amendment is broad enough to embrace both Federal and State governments—nor is there anything in its terms which restricts its meaning. The preamble which was prefixed to these amendments shows, that they originated in the fear that the powers of the general government were not sufficiently limited. Several of the States in their act of ratification recommended that further restrictive clauses should be added. And in the first session of the first Congress, ten of these amendments having been agreed to by that body, and afterwards sanctioned by three-fourths of the States, became a part of the Constitution. But admitting all this, does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an inalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature." - Nunn v. The State of Georgia, AMERICUS, JULY TERM, 1846



"The maintenance of the right to bear arms is a most essential one to every free people and should not be whittled down by technical constructions." - State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921)



"It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon." - Boyd vs. United States, 116 US 616



"It is well settled that the Constitutional Rights protected from invasion by the police power, include Rights safeguarded both by express and implied prohibitions in the Constitutions."- Tiche vs. Osborne, 131 A. 60



"Disobedience or evasion of a Constitutional Mandate cannot be tolerated, even though such disobedience may, at least temporarily, promote in some respects the best interests of the public." - Slote vs. Examination, 112 ALR 660



"As a rule, fundamental limitations of regulations under the police power are found in the spirit of the Constitutions, not in the letter, although they are just as efficient as if expressed in the clearest language."
- Mehlos vs. Milwaukee, 146 NW 882



"The claim and exercise of a Constitutional right cannot be converted into a crime." - Miller v. U.S. 230 F 2nd 486, 489.



"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." - Miranda vs. Arizona, 384 US 436, 491



"There should be no arbitrary deprivation of Life or Liberty..." - Barbour vs. Connolly, 113 US 27, 31; Yick Wo vs. Hopkins, 118 US 356



"There can be no sanction or penalty imposed upon one because of this exercise of constitutional Rights."
- Snerer vs. Cullen, 481 F. 946



"With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority." - Connolly vs. Union Sewer Pipe Co., 184 US 540; Lafarier vs. Grand Trunk R.R. Co., 24 A. 848;
- O'Neil vs. Providence Amusement Co., 108 A. 887



"Constitutional Rights cannot be denied simply because of hostility to their assertions and exercise; vindication of conceded Constitutional Rights cannot be made dependent upon any theory that it is less expensive to deny them than to afford them."- Watson vs. Memphis, 375 US 526



"The state cannot diminish Rights of the people." - Hurtado vs. California, 110 US 516



"No public policy of a state can be allowed to override the positive guarantees of the U.S. Constitution." - 16 Am.Jur. (2nd), Const. Law, Sect. 70



"The courts are not bound by mere form, nor are they to be misled by mere pretenses. They are at liberty — indeed they are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purported to have been enacted to protect ... the public safety, has no real or substantial relation to those objects or is a palpable invasion of Rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." - Mulger vs. Kansas, 123 US 623, 661



"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." - William Rawle, A View of the Constitution, 125-6 (2nd ed. 1829).


Does the law of reason itself follow, that the government be delegated ANY authority whatsoever over the means to put it down should it become tyrannical? NO, it doesn't, nor by ANY stretch of the imagination could it ever. Logic, when clearly followed would announce such a conclusion, (of government control), as utterly vacant.

As somewhat alluded to earlier by another commentator, Blackstone, (the original), worked fine for English law. But has no place here in America. One of the main causes for the Revolution, was the use of arbitrary rule to disarm the populace. We were fleeing oppression, remember?

The ONLY delegated authority that government has is over the Standing Army and Organized Militia. And, can call the unorganized militia into service of the state or federal when needed.

The ONLY truly correct Constitutionally legal time that an American citizen can be disarmed, is if they are imprisoned PERIOD And then government must provide for their protection.

When released, they are again in the "state of nature" and are at liberty. Thus, they are entitled to defend themselves, (Unless government wants to provide an armed guard for each and every citizen).

Binding a free citizen perpetually, or use of prior restraint(s), is clearly outside the purposes for which our governments were formed. It defies the declaration of purpose for which our Constitution was ordained and established. Is, by logic and reason, the servant above their master(s)? Hardly.

We are only as free as we allow even our enemy to be.
10.14.2006 8:20am
Owen Hutchins (mail):
GunShow- good luck with that legal theory. Let us know how it works out in court. If you win, can I buy a nuke?
10.14.2006 9:54am
GunShowOnTheNet.com (mail) (www):
Owen - In consideration of the presently perverse court system. There is no doubt it wouldn't even be allowed to be entered into evidence.

But consider, if you will, did I quote anyone else but the founders of our country? (Other than the legal decisions). Did I stray, in the slightest degree, from the obvious intent of what they had written? Are there any falsehoods in the contention, at all? So then, the founders own words are now just 'theory'? That it should not be given even the slightest regard? (Just as our Constitution). That the perversion should just go on, unchecked, and without question or complaint?

Can it honestly be held, that what we have today, is what was intended by those who wrote the Constitution? I strongly contend that it is not.

Are we not, almost precisely, in the same type set of circumstances that caused the Revolution?

Tell me, please, why would a judge rule thusly?:


The right of the people to keep and bear arms shall not be infringed.' 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 such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. - Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846)


And this, at a time not to distant from when the original intentions were still somewhat fresh in the minds of the people.

Are all the rulers of the twentieth century, (the Age of Infringement). And now, the twenty-first century, (the Age of continued, and speeded-up, Infringements), so much more wise and knowledgeable than the founders?

When does it stop? When we are all 'safe'; the world stripped bare of ALL danger, and we are commanded immobile?
10.14.2006 12:27pm
juris_imprudent (mail):
A.P.,

I know this has taken on the aura of urban legend, even among the legal community. But surely there are limits to this.

Logically I agree there are limits, but the case law doesn't [yet] define any. Probably because the police do work to assure the general safety of the community - which shields them from your hypothetical. However, as an individual you aren't able to demand (and get) protection. Without a right to armed self-defense, where then has the state left you?
10.14.2006 1:12pm
Dave Hardy (mail) (www):
"But if we recognize freedom of speech, that would immunize threatening communications, blackmail (which is but 'I won't use my freedom of speech if you give me money'), communicating military secrets to the enemy in wartime, mailing death threats to the president, violations of copyright, etc., etc."

The potential for extreme applications doesn't refute a right, but simply suggests it is time to develop a real jurisprudence of it.
10.14.2006 4:06pm
GunShowOnTheNet.com (mail) (www):
Am somewhat baffled as to how any implication can be derived that there are limits, permits, or prior restraints on exercising a Constitutionally guaranteed Right. Punishments for misuse of a right are easily understandable, as well as to be readily expected.

"The Right of the People to Keep and Bear Arms", has an explicit denial of any delegated or implied authority. As shown by use of the words; "Shall NOT be Infringed". Which is clearly an unmistakable restriction

The following is how the word 'Infringed' is defined by Webster;

1 : to encroach upon in a way that violates law or the rights of another

This specific right has been encroached upon, either because of implied relevance to the 'militia'. Or, by implication of need for the "common defence" or "general welfare". The specific subject of "common defence", as it pertained to the Right of the People, was debated and negatived. Yet, it can and has been conclusively proven that Self-Preservation is the First Law of Nature. And, that it is applicable to every person that draws breath.

It is a truly remarkable thing that a Right has been transgressed by use of implication. Especially, when one considers Mr. Elliot's notes on the subject:

"That the enumeration of certain rights shall not operate constructively against the retained rights". (A.K.A. - Ninth Amendment).

And, as you can see, Mr. Elliot clearly notes that it is the Right of the citizen to Keep and Bear Arms.

From whence then, does this assumption of implied power arise? I, for one, would be extremely grateful if someone will show me from where it is legally derived. For I've searched and searched, and I can't seem to locate it ANYWHERE.
10.14.2006 5:09pm
Owen Hutchins (mail):
Then by your logic, my absolute right to bear arms can only be infringed if I proceed to misuse it or infringe on the rights of others. Cool, I get a nuke! (I notice you didn't actually answer that question, so I assume you think I should be allowed to have one, as long as I don't misuse it).
10.14.2006 9:52pm
GunShowOnTheNet.com (mail) (www):
Owen - That is not my logic at all. We are, by no means, talking apples and apples are we? (More like apples and watermelons).

A firearm is a tool employed for Self-Defense/Preservation. Which is the clearly stipulated qualification for the tool being utilized. And there are direct quotations by the founders, that we are to be like armed as the military. And this, specifically for the people be able to match or overcome a military force being employed in the hands of Usurpers.

A tactical nuclear device is designed for mass destruction of people and property. And this, for retaliation or pre-emptive strike.

The two weapons have zero relation to one another for a valid comparison.
10.14.2006 11:45pm
Owen Hutchins (mail):
A Nuclear Device is a weapon, in other words, "arms".
10.15.2006 12:16am
American Psikhushka (mail) (www):
juris_imprudent

Probably because the police do work to assure the general safety of the community - which shields them from your hypothetical.

Working to assure the general safety of the community in ineffectual and disingenuous ways does not shield them from the hypothetical. It's clearly a breach of duty at bare minimum. Like a doctor working on a hangnail while the patient is bleeding to death. No one considers a "community" where rape and torture are rapant but there is little speeding "safe". Unless its happening to an underclass whose abuse they approve of - in which case the "community" itself is criminal.
10.15.2006 12:58am
GunShowOnTheNet.com (mail) (www):
"A Nuclear Device is a weapon, in other words, "arms"."

And if we have a government that would use such a device on We The People, then it's time to "to alter or to abolish it, and to institute new Government".

The hypothetical scenario which you provide, would most definitely run into the zone of "insure domestic Tranquility, provide for the common defence, promote the general Welfare." For we aren't talking "Self-Defense/Preservation", we would be talking about wholesale annihilation.
10.15.2006 1:33pm
Owen Hutchins (mail):
Oh, so since a nuke is too powerful, it can be banned without running afoul of the 1st Amendment. MAD violates the 1st.
10.15.2006 6:35pm
juris_imprudent (mail):
Owen,

A Nuclear Device is a weapon, in other words, "arms".

Been there, done that. Ordnance are not arms - the authors of the 2nd knew the difference and so does everyone not so desperate as to resort to absurdity. By the way, would you care to cite the federal law and it's constitutional basis, that actually prohibits the possession of a nuclear device? Berkeley and Boulder nuke-free declarations don't count.
10.15.2006 8:13pm
juris_imprudent (mail):
A.P.,

Working to assure the general safety of the community in ineffectual and disingenuous ways does not shield them from the hypothetical.

That is a burden of proof that you would have to meet, not me.

Like a doctor working on a hangnail while the patient is bleeding to death.

No physician is compelled to do anything by your assertion of some supposed right. Likewise, the police are not obligated to protect you individually. Their duty is to the community at large. You can argue at the edges as much as you like, but you aren't changing the central issue.
10.15.2006 8:20pm
Owen Hutchins (mail):

Ordnance are not arms - the authors of the 2nd knew the difference and so does everyone not so desperate as to resort to absurdity.

Really? I don't see any such distinctions in the amendment.


By the way, would you care to cite the federal law and it's constitutional basis, that actually prohibits the possession of a nuclear device?



Are you saying there is no prohibition against possessing a nuclear weapon?

try looking up Title 18, Part 1,Chapter 39, Sections 831 and 832
10.15.2006 10:41pm
juris_imprudent (mail):
Owen,

Really? I don't see any such distinctions in the amendment.

The word choice - simple as that. Ordnance, arms, regulated - all had unambiguous usage to the people that were writing at the time. Now, you can continue to pursue this line of "reasoning" to even further absurdity or admit it's really just a lark.

Are you saying there is no prohibition against possessing a nuclear weapon?

Section 831 does not outright prohibit the possession of nuclear material. It does provide for punishment for misuse or fraudulent acquisition of nuclear material. Sec. 832 was repealed, so I don't know what you are claiming there.
10.16.2006 1:46am
American Psikhushka (mail) (www):
juris_imprudent-

That is a burden of proof that you would have to meet, not me.

The hypothetical assumes a Torture and Rape ring is operating and that the police are aware of it and not doing anything about it.

No physician is compelled to do anything by your assertion of some supposed right. Likewise, the police are not obligated to protect you individually. Their duty is to the community at large. You can argue at the edges as much as you like, but you aren't changing the central issue.

Not if the person is their patient.
10.16.2006 9:44am
GunShowOnTheNet.com (mail) (www):
The last few posts provide some clear enlightenment....

For what it shows, is just how technical constructions have destroyed a God-given, Inherent and Natural Right. One that was supposed to receive the protection of government, rather than the Infringement upon.

Mr. Tucker, in his work(s), painted a similar scenario. Only it was of how the British government had eroded the right.

Funny, I thought that we seperated from the crown, to flee oppression? Obviously hasn't worked out that well, has it? But, Arbitrarily rule and technical misconstructions never really go away, do they? Nor do they require the wearing of a crown....
10.16.2006 10:06am
juris_imprudent (mail):
A.P.,

The hypothetical assumes a and ring is operating and that the police are aware of it and not doing anything about it.

Right, and we are talking about being able to turn that into an actionable claim by an individual, not a general indictment of police corruption/incompetence. Therefore, YOU have to prove both the existence of the ring and the police indifference to it AND that your client suffered damages due not just to the criminal conduct itself, but also to the police lack of response. Since the case law is pretty much against you, I think you'd have some pretty tough sledding - as much on establishing the facts as on the legal theory.
10.16.2006 12:09pm
Dan Hamilton:
"Thirdly, it seems clear that the framers distingushed between the right to keep individual arms and the right to own cannons or naval ships."

I would like to see where you get this. It just isn't there. The Constitution ASUMES Privately owned WARSHIPS. That is what Letters of Marque are for. Private Warships not Public Warships. And Private ownership of cannon was common, especially on ships. So you are wrong.

On Nukes. The 2ed is about arms usfull in a revolt against a bad government. NBC agents are NOT usefull in a revolt. This is a red hearing brought out to make the 2ed seem stupid or those argueeing for it look stupid.

There are tanks, artilery, war planes, etc that are privately owned today. They should not require a transfer tax or to be registered as Class 3 weapons. But they are out there. NFA is unconstitutional on it's face. You can't tax a right. Just as you can't have a poll tax you can't have a tax to own arms. Background checks are Great. Taxes to own Bad. NBC worthless. Stingers good if you can afford them. Deeper background check then for a pistol, Great no problem.
10.16.2006 1:11pm
GunShowOnTheNet.com (mail) (www):
Mr. Jefferson seems to concur with Mr. Hamilton, (Hmmmm, Hamilton you say? Relation?)


"Knowing of the war when she left Jamaica, &that
our coast was lined with small French privateers,
she armed for her defence, &took one of those
commissions usually called letters of marque. She
arrived here safely without having had any rencounter
of any sort. Can it be necessary to say that a
merchant vessel is not a privateer? That tho' she
has arms to defend herself in time of war, in the
course of her regular commerce
, this no more makes
her a privateer, than a husbandman following his
plough, in time of war, with a knife or pistol in
his pocket, is thereby made a soldier
? The occupation
of a privateer is attack and plunder, that of a
merchant-vessel is commerce &self-preservation."

- Thomas Jefferson to Gouverneur Morris, 08/16/1793
[The Works of Thomas Jefferson in Twelve Volumes,
Federal Edition. Collected and Edited by Paul
Leicester Ford].


Now, I wonder if that farmer had a Concealed Carry Permit?

Am confused as to how one 'permits' an inalienable, pre-existent natural right. This power must have mysteriously appeared over the last few decades, yes?

How does one come up with the power to issue the permit, when there is no power delegated in which to do so? Is not that called usurpation of authority? An Infringement would perhaps be a more apropos term, yes?

And, how is it that an unconstitutional usurpation of authority can come to be accepted as 'settled law'? Is it still not, on its face, unconstitutional? For is not true 'settled law', the fundamental law?
10.16.2006 2:32pm
Owen Hutchins (mail):

On Nukes. The 2ed is about arms usfull in a revolt against a bad government. NBC agents are NOT usefull in a revolt. This is a red hearing brought out to make the 2ed seem stupid or those argueeing for it look stupid.


Then the only weapons that are protected are those useful in a revolt? Who defines that? The SCotUS ruled that a saw-off shotgun isn't a viable "militia" weapon, is that the standard? In any case, that means that we should still have unfettered access to such things as cannon and missiles (I'd like a tank, myself); if you are trying to fight a revolt against a military that has them, you won't get far with just handguns and longarms.

And why wouldn't NBC weapons be useful? Chem and radiologic (so-called "dirty" bombs) are the ultimate in area-denial weapons, better than landmines. Besides, the government has them, so an effective revolt must be prepared to match them.

I'm not trying to make all supporters of the 2nd look stupid; I am a firm believer in the RTKBA myself. But I also believe that reasonable regulation is not an infringment.
10.16.2006 6:03pm
American Psikhushka (mail) (www):
juris_imprudent-

Right, and we are talking about being able to turn that into an actionable claim by an individual, not a general indictment of police corruption/incompetence. Therefore, YOU have to prove both the existence of the ring and the police indifference to it AND that your client suffered damages due not just to the criminal conduct itself, but also to the police lack of response. Since the case law is pretty much against you, I think you'd have some pretty tough sledding - as much on establishing the facts as on the legal theory.

Not exactly - you stated that the police "generally" taking action to protect the citizens shielded them from liability - it doesn't. In the hypothetical we're discussing what shields them from liability is their own dereliction, incompetence, and/or corruption. In order for someone to succeed in a claim against them he would have to do their job to prove that they didn't. (Without the resources and powers.) If that isn't the Catch-22 of Catch-22's I don't know what is. And certainly a general statement on police competence/corruption.

It's pretty sickening - hundreds of people apply for each opening in those jobs. If you're going to take the job, do the job.
10.16.2006 6:47pm
GunShowOnTheNet.com (mail) (www):
"The SCotUS ruled that a saw-off shotgun isn't a viable "militia" weapon, is that the standard?"

Congress has delegated authority over the militia. That is a fact, that cannot be contested. And, if I'm not mistaken. The case you referenced was argued on the basis of the defendant(s) being in the militia.

The right of the people to Keep and Bear Arms is a pre-existent Right of Nature. It is a stand alone inherent, and natural right that has NOTHING to do with the militia. Other than joining with others in your community if the situation demanded it. The militia was declared as necessary to the security of a free state in the "Declaratory" clause. The right of the people was removed from debate in the "Restrictive" clause. It was specifically kept from being intruded upon by ANY acts of government/law.

Because Congress illegally, with the concurrence of S.C.O.T.U.S., stuck their nose in. And this, in a place where it was specifically denied any intrusion upon, or any authority over. Does that make their decisions right and legally correct? NO. It makes it an Usurpation of authority and an exercise of unconstitutional power. How can "Shall NOT be Infringed" possibly be mistaken in its meaning? It cannot. The ONLY legal authority they have, is punishment for misuse of the God-given, Inherent and Natural right.

However, the government is specifically charged with the duty of:

"...insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity..."

How can a right be secured, if it is allowed to be infringed? If a person is free from confinement - they are free, they have paid their debt for their crime. They are once again in 'the state of nature' and entitled to defend themselves. Anything different than this can very well be construed as cruel and unusual punishment.

The weapons that are capable of causing mass destruction cannot, and must not be left up to the use of individual discretion. That would defy the whole purpose of instituting a government to begin with - security of the whole society. Which government, is supposed to have a series of checks and balances to ensure against, as far as is possible, incorrect and arbitrary decisions in the use of power.

The decision for use of a weapon of mas destruction would be an arbitrary one, in the case of an individual. And brings in others that may not concur with its use. Thusly causing an adverse effect on the noncombatants liberty. As much Individual liberty as is possible, within the bounds of respect for the liberty of others, is the guiding rule. Or, it is supposed to be.

The right of self-defense/preservation is the First Law of Nature. The whole American governmental system is based upon "the transcendent laws of nature and of natures God". And is supposed to be guaranteed to each and every free American citizen without distinction. It is the basis on which our Constitution was formed - the very foundation. It cannot be discarded, or whittled down by technical misconstructions. For it is THE Fundamental law on which all others stand. It is a pillar, as well as self-defense/preservation being the guardian of ALL of the other rights. And, we are to be like armed as the military force, in the hands of usurpers, that may be employed against us. However, we do not have the right of taking those, whom are not involved by their own choice, with us. Which the use of a weapon of mass destruction would most certainly entail.

And, as indicated in an earlier post. If we have a government that has, or is using weapons of mass destruction on the people, than that government needs altered or abolished.
10.16.2006 7:45pm
juris_imprudent (mail):
Owen,

The SCotUS ruled that a saw-off shotgun isn't a viable "militia" weapon, is that the standard?

That isn't exactly what was held, and the specifics of that case tend to fit Bork's inkblot hypothesis amazingly well.
10.17.2006 11:52pm
juris_imprudent (mail):
A.P.,

If you're going to take the job, do the job.

Eh, weren't we talking a hypothetical?
10.17.2006 11:56pm