"We reverse"
(Next stop?)
On March 9, 2007 the United States Court of Appeals - For the District of Columbia circuit reversed its previous ruling. Essentially recognizing that "the Right of the People to Keep and Bear Arms" means precisely that which was originally written. Leaving the door open, however, for continued "resonable restrictions", (infringements).
Below you will find pertinent quotations from the people and entities referenced, (both directly and indirectly) in the ruling. In addition, you can access the full (downloadable) PDF copy here. The court cites a number of interesting precedents used in determining their ruling.
Quote from SILBERMAN, Senior Circuit Judge:
"Appellants contest the district court's dismissal of their complaint alleging that the District of Columbia's gun control laws violate their Second Amendment rights. The court held that the Second Amendment ("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") does not bestow any rights on individuals except, perhaps, when an individual serves in an organized militia such as today's National Guard. We reverse...."
"...In sum, the phrase "the right of the people," when read intraextually and in light of Supreme Court precedent, leads us to conclude that the right in question is individual. This proposition is true even though "the people" at the time of the founding was not as inclusive a concept as the "the people" today. See Robert E. Shallope, To Keep and Bear Arms in the Early Republic, 16 CONST. COMMENT. 269, 280-81 (1999). To the extent that non-whites, women, and the propertyless were excluded from the protections afforded to "the people" the Equal Protection Clause of the Fourteenth Amendment is understood to have correct that initial constitutional shortcoming."
"The wording of the operative clause also indicates that the right to keep and bear arms was not created by government, but rather preserved by it. . . . Hence, the Amendment acknowledges "the right . . . to keep and bear Arms," a right that pre-existed the Constitution like "the freedom of speech." Because the right to arms existed prior to the formation of the new government, see Robertson v. Baldwin, 165 U.S. 275,280 (1897)(describing the origin of the Bill of Rights in English law), the Second Amendment only guarantees that the right "shall not be infringed." Thomas Cooley*, in his influential treatise, observed that the Second Amendment had its origins in the struggle with the Stuart monarchs in late-seventeeth-century England. See THOMAS M. COOLEY, THE GENERAL PRINCLES OF CONSTITUTIONAL LAW IN THE UNITED STATES OF AMERICA 270-72 (Rothman & Co. 1981) (1880)...."
* - Here are some other quotes concerning our Right by Mr. Cooley;
"The right [to bear arms] is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the laws, are liable to the performance of military duty, and are officered and enrolled for service when called upon. . . . [I]f the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in so doing the laws of public order."- Thomas M. Cooley, General Principles of Constitutional Law, Third Edition [1898]. (Mr. Cooley was Dean of the University of Michigan's Law School, Michigan Supreme Court justice, and a nationally recognized scholar)."2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness; that the right to property is before and higher than any constitutional sanction; that the free exercise and enjoyment of relgious profession and worship, without discrimination or preference, shall forever be allowed; that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defense of himself and of the state; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like."- Thomas M. Cooley, LL.D, [A Treatise on the Constitutional Limitations Which Rest Upon The Legislative Power of the States of the American Union" 6th Edition, Little, Brown and Company 1890.] (Outline of Declaration of rights for the protection of individuals and minorities, expected from states when forming/amending a Constitution).
Another excerpt from the ruling;
"...To determine what interests this pre-existing right protected, we look to the lawful, private purposes for which people of the time owned and used arms. The correspondence and political dialogue of the founding era indicate that arms were kept for lawful use in self-defense and hunting...."
Now that the court brings it up. Perhaps this would be a good opportunity to introduce the following;
Mayor's Office,
Washington, Dec. 23, 1828.WHEREAS it has been too much the habit of idle and inconsiderate persons, on Christmas and New Year's Day and Eve to indulge in firing off guns, pistols, squibs, and crackers, and burning of gun-powder in divers other ways, to the great annoyance of the peaceable inhabitants of this city, and to the manifest danger of their persons and property--all which practices, where they are not contrary to the express ordinances of the corporation, amount to "disorderly conduct," and as such are punishable by law:
Now, therefore, with a view to prevent such disorderly practices, I, Joseph Gales, jr. Mayor of Washington, do enjoin upon all Police Constables, Ward Commissioners, and others, whose duty it is to preserve peace and good order, to be diligent in the execution of their several duties, and to apprehend and bring to justice all persons so offending against the laws.
Given under my hand, at the City of Washington, this 23d day of December, in the year of our Lord one thousand eight hundred and twenty-eight.
Dec 24--..........JO. GALES, jr. Mayor.
That definitely would qualify as proof of a "pre-existing right", would it not? And, notice the date on the hand-bill quoted, if you will. It is 1828 - well after "the founding era". That indicates that the right had long been an accepted practise. And, that only punishments could be lawfully applied for abuse or misuse of the Right.
Now let us examine what the main author of the Bill of Rights had stated concerning "pre-existing right(s)";
"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...."
Mr. Madison then declared the following the same day;
"It will be a desirable thing to extinguish from the bosom of EVERY MEMBER of the community, ANY apprehensions that there are those among his countrymen who wish to DEPRIVE them of the LIBERTY for which they VALIANTLY FOUGHT and HONORABLY BLED. And if there are Amendments desired of such a nature as will NOT INJURE the Constitution, and they can be ingrafted so as to give satisfaction to the DOUBTING part of OUR FELLOW-CITIZENS, the friends of the Federal Government will evince that SPIRIT of deference and concession for which they have hitherto been distinguished....We ought NOT TO DISREGARD their inclination, but, on PRINCIPLES of amity and moderation, CONFORM to their wishes, and expressly DECLARE THE GREAT RIGHTS OF MANKIND SECURED under this CONSTITUTION."
- James Madison, June 8, 1789 House of Representatives, Amendments to the Constitution
Well, would you look at that! Mr. Madison stated that "EVERY MEMBER of the community" would have their "apprehensions" extinguished. One must assume that Mr. Madsion meant the WHOLE American "community", wouldn't you agree? Which would, of course, include Washington D.C. As well as every state in the Union, correct?
Here are some more pertinent quotes from the ruling by the circuit court;
"...The pre-existing right to keep and bear arms was premised on the commonplace assumption that individuals would use them for these private purposes, in addition to whatever militia service they would be obligated to perform for the state. The premise that private arms would be used for self-defense accords with Blackstone's observation, which had influenced thinking in the American colonies, that the people's right to arms was auxiliary to the natural right of self-preservation...."
"...When we look at the Bill of Rights as a whole, the setting of the Second Amendment reinforces its individual nature. The Bill of Rights was almost entirely a declaration of individual rights, and the Second Amendment's inclusion therein strongly indicates that it, too. was intended to protect personal liberty...."
"...Just as we would read an ambigous statutory term in light of its context, we should read any supposed ambiguities in the Second Amendment in light of its context. Every other provision of the Bill of Rights, excepting the Tenth, which speaks explicitly about the allocation of governmental power, protects rights enjoyed by citizens in their individual capacity. The Second Amendment would be an inexplicable aberration if it were not read to protect individual rights as well...."
"...To summarize, we conclude that the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resitance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad). In addition, the right to keep and bear arms had the important and salutary civic purpose of helping to preserve the citizen militia. The civic purpose was also a political expedient for the Federalists in the First Congress as it served, in part, to placate their Antifederalist opponents. The individual right facilitated militia service by ensuring that citizens would not be barred from keeping the arms they would need when called forth for militia duty. Despite the importance of the Second Amendment's civic purpose, however, the activities it protects are not limited to militia service, nor is an individual's enjoyment of the right contingent upon his or her continued enrollment in the militia...."
The U.S. Supreme Court decision of 1856 in Dred Scott v. Sandford, (especially ironic, when considering the racial composition of the population of D.C.), which is also quoted;
"...More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went...."
1856 was apparently a very good year for the declaring of We The People's Right. For, the U.S. House and Senate had enacted the following;
"Sec. 16. And be it further enacted. . . . And in the just preservation of rights and property, it is understood and declared that no law ought ever to be made or be in force in said Territory that shall in any manner interfere with or affect private contracts or engagements bona fide and without fraud previously proved. And the people of said Territory shall be entitled to the right to keep and bear arms, to the liberty of speech and of the press, as defined in the constitution of the United States, and all other rights of person or property thereby declared and as thereby defined.
"Sec. 17. And be it further enacted, That the following propositions be, and the same are hereby, offered to the said convention of the people of Kansas, when formed, for their free acceptance or rejection, which, if accepted by the convention and ratified by the people at the election for the adoption of the constitution, shall be obligatory on the United States and upon the said State of Kansas, to wit:...
- Journal of the House of Representatives of the United States, SATURDAY, June 28, 1856.
"That, for the purpose of making an enumeration of the inhabitants, authorized to vote under the provisions of this act, an apportionment and an election of members of a convention to form a State constitution for Kansas, as hereinafter provided, five competent persons shall be appointed by the President, by and with the advice and consent of the Senate, to be commissioners,a majority of whom shall constitute a quorum, for the purpose of carrying into effect the provisions of this act, each of whom, before entering upon the duties of his office, shall take and subscribe an oath or affirmation that he will support the Constitution of the United States, and faithfully and impartially exercise and discharge the duties enjoined on him by this act . . . . Sec. 18. And be it further enacted, That inasmuch as the Constitution of the United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and petition for the redress of grievances; the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; nor shall the rights of the people to keep and bear arms be infringed...."
"...It was determined in the affirmative,
Yeas ... 32
Nays ... 13
- Journal of the Senate of the United States of America, TUESDAY, July 8, 1856.
The court also quotes a Tennesee state court case in the D.C. decision, (Aymette V. State, 20 Tenn. (1 Hum.) 154, 157 (1840). Neglecting to use a later decision from the Tennesee Supreme Court which declares;
"Bearing arms for the common defense may well be held to be a political right, or for the protection and maintenance of such rights, intended to be guaranteed; but the right to keep them, with all that is implied fairly as an incident to this right, is a private individual right, guaranteed to the citizen, not the soldier."
- Andrews v. State, 50 Tenn. at 156, 3 Heisk. at 182. (1871).
And, finally, yet another quotation from Thomas M. Cooley;
"The right of the people to bear arms in their own defence, and to form and drill military organizations in defence of the State, may not be very important in this country, but it is significant as having been reserved by the people as a possible and necessary resort for the protection of self-government against usurpation, and against any attempt on the part of those who may for the time be in possession of State authority or resources to set aside the constitution and substitute their own rule for that of the people. Should the contingency ever arise when it would be necessary for the people to make use of the arms in their hands for the protection of constitutional liberty, the proceeding, so far from being revolutionary, would be in strict accord with popular right and duty."
- The Abnegation of Self-Government, The Princeton Rev., July-Dec. 1883, at 209, 213-14,
[Levinson, supra note 15, at 649 n.64.]
This is good news. For the court is once again recognizing Natural Rights. And, at least has us moving back in the right direction. To the desired goal of a FULL return to TRUE original intent. Instead of the Constitutionally perverse practise of 'stare decisis', which is currently used by the courts. Given that the Right has been, finally, recognized as a Natural one. As the clear intent of the framers of our Constitution had shown in their writings. It is now time for We The People to slam the point home - hard.
We should do everything in our power to support the organizations that hold to, and support, the TRUE intent of the Second Amendment. As well as driving the point home to ALL politicians and other government employees (our SERVANTS) - local, state and federal. A major part in accomplishing this. Would be to educate all who will possibly listen, as to the importance of our God-given inalienable right. That our liberties, and the rest of our rights. Nay, the very lives of ourselves and our posterity. Absolutely depend on our natural ability to defend them.
All of us having a desire for full restoration of our Second Amendment Right. Owe a huge amount of gratitude to the Second Amendment Foundation, Keep and Bear Arms, and all of the other individuals and organizations that made this happen! But, most of all, our gratitude is due to that "Creator" which had bestowed upon us our Natural Right(s) to begin with!
Return to:
Also see:
“Agreed to found our Rights upon the Laws of Nature....”
"Rights of the citizen declared to be --"
"the overruling law of self preservation"
Right to Keep and Bear Arms -