Apellee's brief in Parker v. District of Columbia

[Malum Prohibitum]

As to bearing and carrying, it appears these ignoramuses on the Supreme Court of Georgia, in addition to not being able to figure out that the Second Amendment is void as against the state General Assembly, keep confouding the terms "bear" and "carry."

"We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed."


Nunn was arrested for carrying a pistol openly, the court observing that "It is not pretended that he carried his weapon secretly . . ." (emphasis in original). So we have not just an observation, but the actual facts of the case upon which the Georgia Supreme Court is ruling. Summary: The right to bear protects the right to carry a pistol openly.

 

[Malum Prohibitum]

Louisiana had the same reading problem:

"This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man’s right to carry arms (to use its own words), “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassination."

State v. Chandler, 5 La. An. 489, 490 (1850).

 

[Malum Prohibitum]

The Nunn v. State case may be read in its entirety here http://www.claytoncramer.com/primary/rkbadecisions/Nunn1846.pdf
and is interesting for the Kentucky case it quotes at length, with the term "bearing arms" being used exclusively of the act of a private citizen carrying a concealed weapon, not for a military use, nor engaged in actual "fighting."

It also quotes from an earlier Alabama case in which "bearing" was equated to "wearing." The Alabama case held that the right (a state constitution in this instance) did not forbid the legislature from deciding in what manner such arms may be borne. What is really interesting about the citation to this case is that Georgia, decades later, finally adopted a state constitutional right to bear arms that used this very language, thus equating bearing to carrying or wearing. It is the same constitutional provision Georgia has today, allowing a right to keep and bear arms, but allowing the legislature to prescribe the manner in which such arms shall be borne.

 

[Ieyasu]

Really? Even ther Dredd Scott quote that said "carry?"

Mallum, the cases you cite are roughly 60 years after the 2A was penned. The anti's argue that 19th century cases are not relevant in determining the original meaning of an amendment enacted in 1791. As Randy Barnett says, "The farther in time one gets from promulgation, the less germane is evidence of public meaning."

Edited to add: Not that this case is necessarily relevent to original meaning either, but compare your above citations to this one from Aymette v. State (1840):

A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.

 

[RealGun]

even though the Supreme Court had held the Bill of Rights to be a limit upon only Congress.

In actual practice, I believe it would be a limit on the Executive. Congress only postures.

 

[Malum Prohibitum]

Ieyasu

The Tennessee case you cite concerns concealed carry of a large knife (by a guy going arouind loudly declaring his intent to kill another guy). I am aware of only one pre-1850 case declaring concealed carry to be a protected constitutional right.

In addition, the case involved Tennessee's constitutional provision, which quite clearly states that the right applies to bearing arms only "for the common defence" and does not appear to grant any individual right whatsoever. As a result, they are simply commenting upon the obvious - the provision in Tennessee's constitution is a "collective" sort of right.

A long quote will put that case into context:

But to keep and bear arms for what? If the history of the subject had left in doubt the object for which the right is secured, the words that are employed
must completely remove that doubt. It is declared that they may keep and bear arms for their common defence. The word "common," here used, means, according to Webster: 1. Belonging equally to more than one, or to many indefinitely. 2. Belonging to the public. 3. General. 4. Universal. 5. Public. The object, then, for which the right of keeping, and bearing arms is secured is the of the, public. The free white men may keep arms to protect the public
liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution. The words "bear arms," too, have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best
possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens.

The right to keep and bear them is not, therefore, secured by the
constitution.

END QUOTE.

In the next paragraph the Tennessee court also says there is no right to "keep" the non-militia weapons. Context is important.

And this next quote seems to imply that open carry is protected?

"And, as the manner in which they are worn and circumstances under which they are carried indicate to every man the purpose of the wearer, the legislature may prohibit such manner of wearing as would never be resorted to by persons engaged in the common defence."


The other cases I quoted above, and the constitutional provisions, frequently refer to bearing arms in an individual sense, as does the quote from the debate on the militia act in 1790. You have to keep straight what you are quoting.


My only point is this - bearing arms is not strictly used in a military sense throughout the early history of the Republic, as has been contended by some in this thread.

No doubt it sometimes is used in such a sense - maybe even the majority of the time. But that is not the only meaning of the word.

 

[Malum Prohibitum]

Let me make my point clearer than that last rambling post I put up - I think we would be hard pressed to argue much of a Second Amendment right to anything if the Second Amendment only protected a right "to keep and bear arms for the common defense."

Thankfully, our Second Amendment says no such thing, and I do not believe it to have been understood as such by the men who wrote and ratified it, or the early constitutional commentators.

 

[Ieyasu]

Malum,

The context of Aymette is irrelevant. The court was addressing the meaning of the term to bear arms, in and of itself, independent of the Tenn. constitution. In other words, the passage I quoted was independent of the case's context.

My only point is this - bearing arms is not strictly used in a military sense throughout the early history of the Republic, as has been contended by some in this thread.

As I mentioned, it doesn't necessarily mean rendering military service, it can also mean fighting with arms in a private sense, as in "bearing arms in defense of themselves." But, it normally doesn't mean hunting or the simple carrying of arms.

The other cases I quoted above, and the constitutional provisions, frequently refer to bearing arms in an individual sense, as does the quote from the debate on the militia act in 1790.

As mentioned above "bearing arms" in certain contexts may have been synonymous with "fighting with arms" whether in a public sense for the common defense, or self-defense as Roger Sherman states.

 

[Ieyasu]

I think we would be hard pressed to argue much of a Second Amendment right to anything if the Second Amendment only protected a right "to keep and bear arms for the common defense."

For arguments sake even if we agree "bear arms" means rendering militia service, I don't see how one can make the claim the 2nd isn't a right to anything. If the amendment did indeed mean the right to keep arms and serve in the militia, it would protect the people's right to keep military arms. I don't see how that's a right to nothing.

 

[Malum Prohibitum]

Ieyasu - "As mentioned above "bearing arms" in certain contexts may have been synonymous with "fighting with arms" whether in a public sense for the common defense, or self-defense as Roger Sherman states."

How on earth is one to resist an attack upon his person while out and about if there is no right to "carry?"

A reasonable inference can be drawn from Sherman's statement, above, that it was understood by his audience that private citizens could carry them, or his statement would not make much sense, except to declare some vague right to protect one's home against burglars.

I think Tucker's comments not so far removed in time, either, and he certainly does not seem to limit "bear" to a collective, military or fighting use.

 

[Malum Prohibitum]

Ieyasu

I went back and re-read your posts, and noticed a disturbing trend. You keep saying things like, "Nothing you posted contradicts . . ."

I am not contradicting you.

Bearing arms certainly is used in the sense you describe.

It is just that this is not the only meaning of the words.

Rather than contradicting, think of my posts as supplementing.

 

[Malum Prohibitum]

Bearing as carrying - evidence from the 1700s:

Also revealing is a bill drafted by Thomas Jefferson and proposed to the Virginia legislature by James Madison (the author of the Second Amendment) on October 31, 1785, that would impose penalties upon those who violated hunting laws if they "shall bear a gun out of his [the violator's] inclosed ground, unless whilst performing military duty." 2 The Papers of Thomas Jefferson 443-44 (J.P. Boyd, ed. 1950).

A similar indication that "bear arms" was a general description
of the carrying of arms by anyone is found in the 1828 edition
of Webster's American Dictionary of the English Language; where
the third definition of bear reads: "[t]o wear; to bear as a
mark of authority or distinction, as, to bear a sword, a badge,
a name; to bear arms in a coat."


(Ok, so the last one is 1800s)

. . . also note that a minority of the delegates to the
Pennsylvania ratification convention proposed the following
amendment to the Constitution:

"That the people have a right to bear arms for the
defense of themselves and their own state, or the
United States, or for the purpose of killing game; and
no law shall be passed for disarming the people or any
of them, unless for crimes committed, or real danger
of public injury from individuals; and as standing
armies in the time of peace are dangerous to liberty,
they ought not to be kept up; and that the military
shall be kept under strict subordination to and be
governed by the civil powers."

The above quotes come from U.S. v. Emerson, fifth Circuit.

Link to entire case: http://laws.lp.findlaw.com/5th/9910331cr0.html

So will you please stop insisting that bear cannot possibly mean carry?

 

[hugh damright]

also note that a minority of the delegates to the Pennsylvania ratification convention proposed

And if they proposed that, and it failed, then isn't that evidence that your view failed?

Malum, is there any nexus between your view of the Second Amendment and federalism? Specifically, how can a limited federal government have jurisdiction over hunting, personal self-defense, and personal arms? Aren't these intrastate affairs?

 

[Malum Prohibitum]

Hugh, the proposal at the Pennsylvania convention is evidence that the word "bear" has a more expanded meaning than the narrowly constricted meaning being foisted upon it by those who would see the Second Amendment neutered. Bear can mean carry.

It is one of a string of quotes showing that the word can mean "carry." That is all.

The phrase "for the common defence" was also defeated, having been removed by the Senate and then passed without it by the House. Does that mean that the Second Amendment does not protect a right to bear arms for the common defense?



The purpose of my most recent posts is simple - the argument claiming only one meaning for the word back then is very strained indeed.

As to your second question - for the most part I would say the federal government should not have the authority under an enumerated power to legislate in these matters. This really brings us back around to the prior question though, of whom the Second Amendment was meant to restrain. Obviously, a great many people back then thought the Second Amendment would restrain their local governments as well. I provided ample quotes to show that at least some did.

 

[Malum Prohibitum]

By the way, the minority of the Pa. convention were anti-Federalists, who voted against the Constitution when the quoted proposed amendment and an additional proposal relating to militias were defeated.

I think the Emerson decision lists a letter from someone who said they would have supported the constitution with these two changes.

Again, though, I did not quote it to try and show the Second Amendment protects hunting or anything like that, I just wanted to show that at least some people in the 1700s believed hunting was also something being done while bearing - i.e. carrying.

(I also quoted Jefferson doing the same with Madison proposing the bill).

Therefore, the claim that bearing never meant carrying in the "scholarly" article quoted, pointing to 300 uses of the term in the 1700s, is simply false.

 

[beerslurpy]

Ieyasu, fighting with arms as an obligation to the government is all covered by the Army clauses (Congress shall have the power to raise and support armies...), not the militia clauses. When an army is raised and sent to war, there is no need to protect the soldier's "right to bear arms" because his bearing and his fighting is done under the authority of congress.

Perpich v. Dept. of Defense, 496 U.S. 334 (1990) involved a governor trying to argue that the National Guard was the militia and that as a State government, he had Article I authority over it. The Court corrected him, noting that the National Guard was created under the authority of the Army Clause and when called to service in the national guard, the members of the National Guard were in fact under the control of the federal government, as an ARMY.

 

[Ieyasu]

Ieyasu, fighting with arms as an obligation to the government is all covered by the Army clauses (Congress shall have the power to raise and support armies...), not the militia clauses. When an army is raised and sent to war, there is no need to protect the soldier's "right to bear arms" because his bearing and his fighting is done under the authority of congress.

Rendering service in the militia, is not the same as serving in the Army.

Perpich v. Dept. of Defense, 496 U.S. 334 (1990) involved a governor trying to argue that the National Guard was the militia and that as a State government, he had Article I authority over it. The Court corrected him, noting that the National Guard was created under the authority of the Army Clause and when called to service in the national guard, the members of the National Guard were in fact under the control of the federal government, as an ARMY.

The Minnesota governor had control over the mlitia when in the service of the state. Perpich clearly states when not called-up by the national government state natl guard are militia. However, when called into national service they are no longer militia, but are a part of the army. Ie., there is a dual enlistment.

I don't see how that has any bearing on this discussion since bearing arms in the 2A may address the right of the people to serve in a militia.

Malum, I've got to step out. I'll address your posts later!

 

[beerslurpy]

When congress turns part of the militia into an army, they are exercising their authority to raise armies. The national guard has all the equipment and hierarchy of a regular army, and all of their stuff belongs to the government. They receive all the same medals as the regular army, and they are even classified as a subordinate branch of the US Army. Congress can call the National Guard a militia, but that is not what it is. Congress can't federalise a militia anymore than they can federalise the local sheriff's department.

A better example of a "state militia" would be so called "State Defense Forces" which report to the governor, often supply their own equipment and are beyond the authority of the federal government. They are called out by the State Governor for the enforcement of state law and the keeping of peace within the state. Only 20-something states have this, most only having local chapters of the National Guard.

edit: and dont try to tell me that there is "dual authority" over the National Guard. If the Governor only has authority over the national guard until the president decides to exercise his CinC authority, then that would mean that the govenor is subordinate to the authority of the president. Is this so? Can the president exercise executive control over internal state affairs?

 

[Gunstar1]

Sorry about this post being so long, but some of y'all are overlooking a few details the anti's try to confuse people with.

1st, just because the founding fathers primary concern at the time was to perserve the ability of each state to form a militia does not mean they did not mean to include hunting or personal self defense.

I agree it was rarely mentioned as a big reason for the 2nd, but by thinking in detail about how the militia operated back then, you will find it is logical to conclude that the founding fathers assumed that their reasoning was so obvious as to not need specifically saying each and every reason.

I find it almost humerous that most of the reasoning can be summed up by really understanding how the people formed up the "well regulated militia". No, not how the anti's say, which is that you must be in the modern equivilent to the National Guard for the 2nd to apply. Quite frankly the National Guard is a standing army and they go far past what the founders considered to be a well regulated militia.

I am sure you have read that the founding fathers hated the idea of a standing army. So if you don't want a standing army whose sole purpose while not at war is to train for war, what do you do and what drawbacks are there to that?

Well first you make the people themselves be the army in a time of war, but allow them to go back to normal jobs after the crisis is over. Ok so we now have an unarmed and untrained group of people that everyone in the nation is depending on for its survival in case of war.

So, all we really know right now is that we need a well regulated militia for the security of the free state, now to figure out how to do that.

Now remember war in that time was the British method of standing in long formations and shooting at the enemy. Using this method meant that the British troops trained to follow and execute orders as quickly they could which included reloading and firing as fast as possible (more concerned getting the most bullets flying at the enemy and not really concerned about accuracy.

So to fight this kind of army you have to make sure everyone that is going to fight is equipped with weapons and tents/food/etc. Who pays for that? Well since buying equipment and weapons for every citizen would have been too expensive, make the people buy the stuff they will use.

Before we figure out who should keep all that stuff (let the people keep it or keep it in an armory) lets look at training. There are 2 types of training that need to be considered. First is the ability to quickly follow orders. So when the General says form up, the militia will quickly and orderly form up and not act like a bunch of second graders pushing and shoving in a lunch line. Second is familiarity and training with the weapons and equipment to be used. Like with the muskets, if you get one of the reloading steps out of order, not only will the gun not fire when the trigger is pulled, but you have also just rammed a large lead slug into your barrel that will have to be removed before you can reload, and all this while the enemy is shooting at you.

The Founders being untrusting of governments, realized that it will want to put a check and balance into the states militia power. So to make sure the state does not get greedy with power, the people should keep the guns they have purchased for militia duty.

Well so far we have the militia and a right to keep arms.

So now the founders have to deal with training. Well they realized that during a time of peace, the people will be more likely to skip training as time goes on. To keep the training down to a minimum, they will have to get to people to train themselves in a less structured method so they can focus on training that every militiaman should be able to do no matter where they come from. The state has to teach the militia to follow orders/march/etc.

So they decide that if they allow the people to not only keep the arms, but to bear them as well, that would mean that the farmers and ranch workers could get used to using them hunting for food/killing animals that ate the livestock.

I think this particular idea worked out better than the founders had dreamed. Being that the people that had to learn stealth and accuracy to be able to survive on the outskirts of the colonies. Which training method would work best for you, having to report to training 6 times a year to shoot paper targets and drill or to keep you and your family from starving or going broke you must hunt for food and prevent the loss of livestock and other foods (milk and cheese). You only get one shot, if you miss the critter is gone.

Now the State only has to see you once or twice a year to make sure you remember how to march and follow orders. You are more likely to go 2 times a year than 6 or more.

The only thing now is to just make sure the people that are supposed to keep and carry the weapons for national defense, actually do have those weapons.

So back then the founders decided to protect the nation, the state, the community, the family and your own life, the people who choose to can be armed. So the second amendment allows for the protection of life and liberty.

Now compare that to the Anti's new world where the way to protect the people is to disarm the nation. Risking both life and liberty.

 

[ctdonath]

Some of the Founding Fathers disliked the idea of a Bill Of Rights precisely because it implied that only those rights are to be recognized & protected.
Some rights are so obvious that one does not think of them being in need of recognition and protection. Armed self-defense was so obvious to a frontier-oriented culture that it did not need stating. IMHO, the right to vehicular travel was also so obvious that it did not get stated - and now we have a licensed-only system of driving. The view that some things may be banned because they were not formally recognized is anathema to the Constitution.

 

[ilbob]

Congress can't federalise a militia anymore than they can federalise the local sheriff's department.

Well actually, congress does have the enumerated power to federalize the militia.

Article I, section 8. But note the limits on what congress can call them up to do. And note that congress has this power, not the president.

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;

 

[hugh damright]

To provide for organizing, arming, and disciplining, the Militia

When Virginians convened to consider ratifying the proposed US Constitution, and were discussing the Second Amendment, Patrick Henry said that his main concern was this federal power over the militia. I assume that some other Virginians, Mason for instance, might have envisioned an amendment which would somehow protect all aspects of the RKBA. But I seem unable to seriously entertain the idea that Virginia requested the Second Amendment with the intent that we bind ourselves so tightly that we could not even act to pass legislation creating a duck season.

This really brings us back around to the prior question though, of whom the Second Amendment was meant to restrain.

I think the consensus intent was to bind the US. That is how I understand constitutionalism to work - a constitution frames a government and a BOR limits that government.

The USBOR has a Preamble which says that the intent was to prevent misconstruction or abuse of the powers created by the US Constitution.

And there's also our entire body of US Constitutional law, which, as we all know, is clear that that USBOR did not limit the States before the 14th "Amendment".

OF COURSE some people wanted the USBOR to limit the States, or believed that the USBOR limited the States. I expect there were people who thought that the Massachusetts BOR should limit South Carolina, lots of them, but that view is antithetical to our Constitution.

 

[beerslurpy]

No it doesnt, ilbob. "Provide for calling forth" is different from "to call forth." They have the authority to proscribe the ways in which the president may use the militia but the discretion of whether to use them lies entirely with the president. He calls them forth and he commands them to act, not Congress. Look in Joseph Story's commentaries on the constitution S1204-1206:

To wit:

§ 1204. Several questions of great practical importance have arisen under the clauses of the constitution respecting the power over the militia, which deserve mention in this place. It is observable, that power is given to congress "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions." Accordingly, congress in 1795, in pursuance of this authority, and to give it a practical operation, provided by law, "that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the president to call forth such number of the militia of the state, or states most convenient to the place of danger, or scene of action, as he may judge necessary, to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia, as he shall think proper." ...

§ 1205. ...In Connecticut and Massachusetts, it was held, that the governors of the states, to whom orders were addressed by the president to call forth the militia on account of danger of invasion, were entitled to judge for themselves, whether the exigency had arisen; and were not bound by the opinion or orders of the president...

...§ 1206. At a very recent period, the question came before the Supreme Court of the United States for a judicial decision; and it was then unanimously determined, that the authority to decide, whether the exigency has arisen, belongs exclusively to the president and that his decision is conclusive upon all other persons...

Exclusive indeed- exclusive of the state governors, exclusive of Congress to whom you have mistakenly assigned this authority.

Again, congress can raise armies and discipline them, but only the president can call forth the militia on an emergency basis. For there to be a regular military body provisioned by congressional funding, it has to be an army. Congress has no authority to support the militia- militias are, by definition, self supported.

 

[Malum Prohibitum]

Hugh wrote - "OF COURSE some people wanted the USBOR to limit the States, or believed that the USBOR limited the States. I expect there were people who thought that the Massachusetts BOR should limit South Carolina, lots of them, but that view is antithetical to our Constitution."

Well, I don't recall seeing quotes form people who thought that the Mass. Bill of rights was a limitation on South Carolina, but if you say so . . .

As for those who thought the Second Amendment imposed a limitation on the States, however, I have quoted William Rawles and the Supreme Courts of Louisiana and Georgia, and I am sure there are others if I took the time to research it.

Were they wrong?

Ok, maybe.

I do find it interesting, however, that there was no "Congress shall make no law" language. I also find it interesting, as long as we are discussing this and incorporation against the States via the Fourteenth Amendment, that the Second Amendment has not yet been "incorporated" when the disarming of black citizens was one of the reasons expressed during debates for the Fourteenth Amendment's adoption. If any right should be incorporated, then the Second Amendment is it.

 

[Malum Prohibitum]

On the adoption of the Fourteenth Amendment and its relationship to the Second Amendment, see the last post on the first page here:

http://www.georgiapacking.org/forum/viewtopic.php?t=383