right to bear arms

"The Right to Bear Arms" by Stephen Halbrook: Book Review

A book that may may help decide the Supreme Court's upcoming right to carry case.

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The U.S. Supreme Court has granted certiorari to hear a major case on the right to bear arms, New York State Rifle & Pistol Association Inc. v. Corlett. By happy coincidence, the best book on the legal history of the right has just been published: Stephen P. Halbrook, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? Post Hill Press, 371 pages, $17.99, paperback.

Halbrook's book will be central to the Supreme Court case, just as Halbrook's previous work was for the Supreme Court's decisions in District of Columbia v. Heller and McDonald v. Chicago—not only in direct citations, but also in the many original sources that Halbrook was the first to write about, and which the Court incorporated in its opinions. Indeed, Halbrook's scholarship was a foundation of McDonald case, for he had demonstrated in irrefutable detail that Congress passed the Fourteenth Amendment for the explicit purpose of, inter alia, protecting the right to arms of former slaves to keep and bear arms for personal and family defense.

As some readers may know, I have coauthored one book and two law review articles with Halbrook. (Supreme Court Gun Cases (2003); Miller versus Texas: Police Violence, Race Relations, Capital Punishment, and Gun-toting in Texas in the Nineteenth Century—and Today, 9 Journal of Law and Policy 737 (2001); Tench Coxe and the Right to Keep and Bear Arms in the Early Republic, 7 William and Mary Bill of Rights Journal 347 (1999).)

Before becoming a lawyer, Halbrook was a philosophy professor at Tuskegee, Howard, and George Mason universities, and The Right to Bear Arms reflects his background. The book is legal history from early England to 2021, methodically and logically presented. The book is not about pro/con social science studies, and although it engages with post-Heller cases on the right to bear arms, most of the book covers the pre-Heller period.

At 377 pages, The Right to Bear Arms is the right length to thoroughly address its topic, supported by meticulous footnotes. Given Halbrook's role since 1981 as the leading modern scholar of Second Amendment legal history, it is no surprise that some parts of the Right to Bear Arms are derived from Halbrook's prior detailed work on particular subjects. For example, he addressed the American Revolution and the origin of the Second Amendment in The Founders' Second Amendment, addressed Reconstruction and the Fourteenth Amendment in Securing Civil Rights: Freedmen, the Fourteenth Amendment, & the Right to Bear Arms, and the 1886 Supreme Court case Presser v. Illinois (against armed public parades) with the only law review to provide the full history of the case.

With citations in 122 federal cases, Halbrook also has a 3-0 record as the lead attorney in Supreme Court cases, including Printz v. United States, which held that the federal government may not order state and local officials to enforce federal laws. That case secured the legal foundation for decisions of many state and local governments not to assist the federal enforcement of various laws involving immigration, marijuana, or gun control. Any serious person involved in the legal debate over the right to bear arms will have to address the arguments in Halbrook's latest book.

Halbrook begins the story in the late thirteenth century, in the reign of England's King Edward I. About a third of the book is devoted to legal history of the United Kingdom, through the twenty-first century. Although the American Second Amendment was expressly intended and interpreted as being broader than the English right, the English right is the most important ancestor of the American one.

The 1328 Statute of Northampton restricted arms carrying, particularly by armed criminal gangs working for local magnates. According to a 7-4 decision by the en banc Ninth Circuit this March, the Second Amendment "right to bear arms" means that individuals can be forbidden to bear arms anywhere outside their property. (The majority opinion in Young v. State of Hawaii is critiqued in the forthcoming University of Illinois Law Review Online article by George Mocsary and me,  Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii.) Relying on the writings of Fordham history professor Saul Cornell and of Patrick Charles, the Ninth Circuit majority declares that the Statute of Northampton was a total ban on bearing arms, and that the ban was so applied and enforced not only in England in 1328, but in the American colonies and then in the United States in the nineteenth century.

As Halbrook shows, the argument is incompatible with every known case that interpreted the Statute of Northampton and its ban on carrying arms in "affray"—from the seventeenth century to the twenty-first. In 1686 Sir John Knight's Case clearly held the Statute to only apply to carrying arms in malo animo, with bad intent. So when John Knight, a political enemy of King James II, carried a gun to church one Sunday, he was acquitted, because the evidence showed that his bearing arms was peaceable and defensive.

In 1689, Parliament enacted the English Bill of Rights, which guaranteed "That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law." Neither textually nor in practice was the right limited to the home.

As Halbrook details, the subsequent case law—as well as parliamentary debates on gun laws—agreed that individuals could carry defensive arms with no need for a license. However, they could not assemble armed in large public crowds; they could not carry "dangerous and unusual" weapons (e.g., a battleaxe rather than sword), nor, if they were commoners, could they carry arms for hunting.

Although rarely invoked in court, the Statute of Northampton stayed on the books until formal repeal in 1967. A few twentieth century English cases involved the Statute, and all of them agreed that it an essential element of the crime was that the arms carrying cause "terror of the people"—such as by a person walking around town drunk and shooting into someone's window. Peaceable carry was fully lawful in England until a 1920 statute required a discretionary license. The only court that has ever interpreted the Statute of Northampton as a ban on all defensive carry is the Ninth Circuit in 2021. All the English cases say the opposite, and so do the American cases that interpreted the common law rule underlying the Statute.

While describing the United Kingdom's legal history, Halbrook shows how often the phrase "bear arms" was used to mean the carrying of guns by individuals for personal purposes. This refutes the assertions of some (including the Vermont Supreme Court in its 2021 Vermont v. Misch decision) that "bear arms" meant solely to carry arms while serving in a militia.

One contribution of The Right to Bear Arms is its detailed analysis of arms laws aimed at Catholics in Ireland in the eighteenth and nineteenth centuries, when Ireland was under English control. As the statutes, cases, and political discussions showed, the English (including Catholics in England who would swear a loyalty oath to the English monarch) could carry guns with no need for a license. In Parliamentary debate, Lord John Russell (who would serve as Prime Minister 1846-52 and 1865-66) explained the difference between English and Irish law on bearing arms:

[T]he right to bear arms, which is the universal right in England, and qualified only by individual circumstances, is reversed in Ireland; the right to bear arms here being the rule, the right to bear arms in Ireland being the exception. … [I]t has been the principle of all Governments that you should require in Ireland a licence to bear arms, and that the right to bear arms should he held an exception to the general rule, although it be the general rule in England without any licence that every individual should be entitled to bear arms.

70 Hansard's Parliamentary Debates 66 (June 16, 1843).

Part II of The Right to Bear Arms covers the American colonies and the adoption of the Second Amendment, and Part III is the nineteenth century in America. Like in England, American statutes and common law forbade carrying arms "offensively" or to cause "terror." Except for the targets of discrimination (namely slaves, and free people of color in some slave states), peaceable carry with no need for a permit was the norm.

The one exception was the colony of East Jersey, which for a brief period was split from West Jersey. The East Jersey carry restrictions for the general population had disappeared by the early eighteenth century.

Starting in 1813, some states banned concealed carry. By the time of the Civil War, eight had done so, and more would follow afterwards.

Several states in the North or Midwest had surety of the peace statutes. If a person were carrying arms in a manner that threatened to create a breach of the peace, and if a complaint were filed against him, he would have to post a bond for good behavior. The same advocates who before Heller contended that the Second Amendment was only for militiamen now contend that the surety statutes were a comprehensive prohibition on arms carrying. Halbrook examines the illogic of their theory. According to the advocates, arms bearing was forbidden to the general public, but was allowed for persons who had been found to by a court to be carrying in threatening manner; they, and they alone, could carry guns, once they posted a bond. Actually, when states with surety statutes wished to restrict gun carrying in general, they did so with plain statutes, such as concealed carry limits.

During the nineteenth century, the South was the most ardent region for gun control, partly for racial reasons. Most of the early statutes against concealed carry came from South, and most of them were upheld as long as open carry was allowed. While Saul Cornell and others have attempted to portray the South as unique because only Southern cases protected the right to carry (while letting the legislature determine the mode of carry), the truth is different. The reason there is not a body of cases from the antebellum North on the right to bear arms is that no northern state prohibited peaceable carry.

It should not be surprising that Northern legislatures restricted the right to bear arms less than their Southern counterparts did. As Halbrook details, when state conventions were debating ratification for the proposed U.S. Constitution, most of the calls for what would become the Second Amendment came from Northern states that had already abolished slavery or would soon do so. The idea that the Southeast was more strongly in favor of the right to bear arms than the Northeast is true today, but not when the Second Amendment was written, nor in the Amendment's first century.

In addressing the arguments of today's opponents of the right, The Right to Bear Arms often juxtaposes their words with the words of the document they purport to rely on. For example, the Tennessee Supreme Court addressed the Statute of Northampton in the 1833 case Simpson v. State: "But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them this English statute, or portion of the common law, our constitution has completely abrogated it."  Yet according to Patrick Charles, the Simpson court "never answered whether the Tennessee Constitution superseded the Statute of Northampton…"

Part IV of The Right to Bear Arms takes the story up to the present. Halbrook acknowledges deviations from the right, such as New York's 1911 Sullivan Act that targeted immigrants and sent them to prison for peaceable carry. Likewise, several Western territories had broad restrictions on handgun carrying, especially in towns. But once the people of the territories met in convention to create state constitutions, the new states constitution expressly guaranteed the right to bear arms. Oklahoma authorized the new state legislature to regulate the manner of carrying, while most other new constitutions rejected amendments to allow such limits.

The Right to Bear Arms does not attempt to solve every legal issue. The book assumes that the right is sufficiently protected by the modern laws in the large majority of states that allow a person to obtain a handgun carry permit after passing a background check and safety training. What clearly violates the right, according to Halbrook, are the laws in a handful of states, such as New York, that make carry permits contingent on a government official's decision about whether a person has a special "need" or "good cause" for self-defense.

What The Right to Bear Arms does demonstrate–beyond any serious dispute–is that law in England (but not Ireland) from at least the late seventeenth century until 1920 recognized the right to bear arms. So too, and with fewer ancillary restrictions, did the laws of the American colonial period, the Founding Era, the Early Republic, and the rest of the nineteenth century—with some exceptions that mainly related to the South's maintenance of a racial caste system.

When the Court examines the Second Amendment right to bear arms later this Fall, the overwhelming evidence of text, history, and tradition marshaled by Stephen Halbrook will be at the heart of the case.

NEXT: The Pizza Principle

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  1. Halbrook thinks “coat of arms” means a coat with pockets big enough to hold pistols. Sharp guy.

      1. “Bear” meant “to carry” or “to wear; name; to bear arms in a coat.”
        “Arms” were defined as “weapons of offense, or armor for defense and protection of the body.”
        Only civilians would “bear arms in a coat” – soldiers carried muskets in their hands, while officers carried pistols in holsters.

        “Look to Dictionary to Understand Second Amendment”, Halbrook, June 22, 2008.

        Next, I expect Halbrook to point out that the First Amendment, protecting “freedom of the press”, protects anyone who wishes to bench press in public (using a Universal Gym is acceptable, of course).

        Or that the Third Amendment, which prohibits a soldier from being “quartered in any house”, allows the soldier’s eyes to be poked out, because that’s not being “quartered” (Merriam- Webster, “condemned to be hanged, drawn, and quartered”).

        1. The Right to a Gun? You Could Look It Up

          Your complaint would appear to be with Noah Webster, not Halbrook. He was merely reporting dictionary definitions from the time the 2nd amendment was written, and “to bear arms in a coat” was a definition of “bear” straight out of a contemporary dictionary.

          1. Yeah. It’s not like lawyers or judges ever use dictionaries.

            1. The words “bear arms”, decontextualized, may imply personal use, but in a text with a purpose clause that speaks of militias, that may mean something else.

              1. I would say that, since the amendment goes out of its way to attribute the right to the people, NOT the militia, personal use is the right context.

                As I understand it, based on sources from the era that I’ve read, (In part thanks to Halbrook’s previous books!) the idea here was that if you guaranteed the right of the general population to own and carry about arms of the sort the militia would use, you’d have a population already owning them and familiar with their use from which to raise a militia, even if the government had previously discontinued the militia system.

                Remember, constitutional rights are almost always premised on the idea of thwarting a government that means to do wrong, not enabling a government that means to do the right thing.

                1. They also wanted to avoid having Congress keep a standing army. That plan seems to have gone to the curb.

                2. “constitutional rights are almost always premised on the idea of thwarting a government that means to do wrong”

                  Bullshit. Writing words down on paper don’t keep anybody from doing anything. The only thing that makes Constitutional rights actually rights is the government’s unwillingness to infringe them. Recall Chief Justice Taney’s opinion on respecting the rights of black people, and later on, internment of Americans of Japanese descent turned out to not involve any violations of rights, per the Supreme Court.

                  1. Yes, constitutional rights are always premised on the idea of thwarting a government that means to do wrong.

                    The 1st amendment is to thwart a government that would like to censor and crush religious liberty: If you thought the government would never want to do either, it would be pointless.

                    The 2nd amendment is to thwart a government that would like a defenseless people who could be easily oppressed. If you didn’t think the government would ever set out to disarm the people, it would be pointless.

                    And so on: No point in prohibiting torture if government would never torture anyway, no point in mandating compensation for takings if the government would never be tempted to just take stuff.

                    It’s true that a really bad government would just violate these rights. But would a government start out maximally bad? Almost certainly not. And a much less bad government might actually hesitate before openly violating the highest law of the land, giving you some breathing room.

                    So they obstruct the government going bad, and operate as lines in the sand, telling you when the government is headed in the wrong direction. The very fact that the government pursues gun control in the teeth of the 2nd amendment tells you something that the pursuit of gun control without a 2nd amendment doesn’t: It warns you you’ve got a government that’s intent on doing what the law says it can’t do, that no longer feels obliged to behave legally.

                    That’s a valuable warning.

                    1. That’s some excellent example of motivated reasoning. You start with the conclusion you want to reach, and then work your way directly to that point, ignoring anything that might lead elsewhere.

                  2. Bullshit. Writing words down on paper don’t keep anybody from doing anything. The only thing that makes Constitutional rights actually rights is the government’s unwillingness to infringe them.

                    Right. That’s why you never see cases before the courts involving violations of enumerated rights.

                    1. Do you live somewhere where the courts aren’t part of the government?

              2. So, let’s consider what it means “to bear arms” in the context of a “militia”

                1: It means the US Constitution protects the right of “the people” to “keep and bear” military arms

                you know, like automatic M16s

                2: As the militia is every able bodied adult male US Citizen, that means that “special need” restrictions are verboten

                3: It means that no State can ban “open carry”

                4: It means that people who decide to go out patrolling for criminals in their neighborhood, while bearing military weapons, are acting in a militia capacity, protected by the 2nd Amendment

                So much for whining about “vigilantism”

                You really want to go there?

                1. “So, let’s consider what it means “to bear arms” in the context of a “militia”

                  1: It means the US Constitution protects the right of “the people” to “keep and bear” military arms

                  you know, like automatic M16s”

                  Back when I was enlisted in one of my then-state’s two militia organizations, they absolutely did not let me keep or bear an M16. We had a trip to the firing range in Basic Military Training, but at the end, they took the rifles away and then never gave them back.
                  AND they required the rifles stay in semi-automatic mode while we were at the range, and they had adapted them to .22 ammunition. Another violation of range safety rules was to reach across the firing line for any reason, expressly including collecting brass. I saw dudes fail rifle training for violating both rules, and wash out. Those rifles were crap, and jammed about every third round.

        2. Aside from Brett’s comment, “bear arms in a coat” is not equal to “coat of arms”. The conflation of the two is your malfunction, not Halbrook’s.

          1. It certainly is. “Coat of arms” is the only possible context. Ever hear of of a “coat gun”? Me neither.

            1. You could also translate it as “coat of many colors”.

            2. No, I’ve never heard of a “coat gun”, but I have heard of “pocket pistols”.

              The pocket pistol originated in the mid-17th century as a small, concealable flintlock known as the Queen Anne pistol, the coat pistol, or the pocket pistol. This was used throughout the 18th century, evolving from a weapon reserved for the wealthy to a common sidearm in broader use as more and more manufacturers made them by the start of the 19th century.

              1. Oh look, it says they were also known a “coat pistols”.

                I will also note, that coat/pocket pistols go back to about 150 years before the drafting of the US constitution, and so they would have been well known to the authors of the Second Amendment.

                1. My point is, “bear” in the sense Halbrook and Bellmore are pushing it, is already covered by senses given of the word. The dictionary would not use such an unlikely word as “coat”. It would use “branish”, or “in the hand”, or “in a holster”, etc.

                  1. That point bears no resemblance whatsoever to your prior comments equating ““bear arms in a coat”” with “coat of arms”.

                  2. I think it likely here that “bear arms in a coat” is an example of the use of bear in this sense in a sentence rather than part of the definition.

                    You don’t think that maybe “bear arms in a coat” might be a reference to people carrying pocket pistols in coat pockets? After all, that is kind of the point of a pocket pistol.

                    1. It also tells you that bearing arms in a coat was common enough to be a reasonable example of usage. Webster wouldn’t have used that example if bearing arms in a coat was uncommon.

                    2. Well, yeah. As I noted above, pocket pistols had been a thing for almost a century and a half by the time of the founding of the USA.

    1. 2/10. Readers must already have the correct political mindset and must also have the comedic sense of Tipper Gore.

    2. Prog approach: if you don’t have anything on the merits, ridicule those you disagree with.

      1. Independant approach: When a partisan makes a stupid argument, point out how stupid their argument really is.

      2. I had a reason to call Halbook stupid and I backed it up. If you think my evidence is bad, say so. But you can’t say I didn’t provide evidence.

        1. You provided no evidence. Saying that “bearing arms” = “carrying arms in a coat” is not even close to saying a “coat of arms” = “a coat with guns in it”.

          Ya clown.

        2. It’s not your evidence that’s bad, it’s your reasoning: Your evidence doesn’t lead to your conclusion.

          1. That’s Brett’s thing, and he wants you to stop copying his M.O.

  2. I can’t help but think of the Massachusetts “tumultuous behavior” statute that literally allows college-town police departments to declare martial law with total impunity.

    1. Yeah. You get great results when you call out the National Guard to quell student unrest on campus. Ask anyone in Ohio. Bob?

  3. America’s racism was limited to gun control measures…no other laws were passed with racist intent. And Tim Scott tanked two of Trump’s judicial appointments due to records tainted by racism…but racists are only a small portion of elite Republicans that are offered lifetime appointments. 😉

  4. In NJ, a person has to show good cause for obtaining a gun permit just to possess a gun at home or at one’s place of business. An even higher standard, nearly impossible to meet in practice, is required for a carrying permit. I’d bet dollars to doughnuts that if the U.S. Supreme Court implicitly (or, less likely, explicitly) finds N.J.’s law unconstitutional, the N.J. courts will ignore that ruling and attempt to work their way around if for as long as they possibly can.

    1. The NJ Democrat Party is a criminal enterprise.

      1. So don’t join. Run your own criminal enterprise.

        1. Even sent to Behar, yours is a pointless response.

          1. You, also, are free to form your own criminal enterprise and run it until duly convicted.

            1. The Don is part of the biggest, most toxic, more powerful criminal enterprise in the world. It has taken control of our three branches of government of an Empire class nation. Nothing can remove it.

            2. James,
              Kiss my ring.

              1. You can kiss my… (go ahead and guess what I would have put here if I hadn’t followed your suggestion to “grow up”.)

    2. Here we see the conservatives’ dedication to principle. States should have the power to set policy, unless the state picks a policy they don’t like.

      1. Yo, James. What happened to Article IV Section 1? Here it is in plain eighth grade language: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

        Scumbag New Jersey targets this PA patriot. The whole state of NJ is a criminal enterprise.

        https://www.inquirer.com/philly/news/new_jersey/20150403_Christie_pardons_Phila__mom_snagged_by_N_J__gun_law.html

        1. Hint: I’ve never been in New Jersey, and don’t have to defend their choices, so I won’t.

          1. James, there is much to enjoy in New Jersey, now spoiled by the Democrat Party and by the lawyer profession. If you are from New York, New Jersey seems like a paradise to escape to.

            1. If it’s got you in it, I want to stay far away.

      2. What if the policy is explicitly unconstitutional? NJ’s legal statutes are written in such a way that all firearms possession is illegal and their citizens only own, hunt, defend themselves with them under the exceptions allowed by law.

        1. “What if the policy is explicitly unconstitutional?”
          It’s not as explicit as you think. The only reason the second amendment applies to the states is because of incorporation by the 14th. The thing is, the 14th amendment does not include the words (…and all the protections of the Bill of Rights now apply against the states.)
          So, you meant to say it’s implicitly unconstitutional.

          1. I’ll concede your point. What about the second part of my reply? NJ statute bans all firearms ownership with the exceptions covering possession, hunting, self defense, etc.

            1. “What about the second part of my reply?”

              What about it? I don’t have to care what laws NJ passes, because I am not subject to them.

              1. Good to know your a pedant and not serious about the meat of a subject.

                1. And you’re a twit who indicates that your opinion can be ignored by carefully not spelling “you’re” correctly when you use it.

                  Now defend the acts of the 18th-century Australian parliament or it proves you’re not serious.

          2. But it does include the words, “privileges and immunities”, and we have the Congressional debates to tell us that those included the rights enumerated in amendments 1-8.

            1. Slaughterhouse Cases.

              1. Yes, the Congressional debates tell us what it meant, and the Slaughterhouse cases tell us the Supreme court didn’t care.

                1. The Supreme Court is the Supreme Court, even when it reaches decisions you disapprove of.

      3. Is that position not in direct contradiction to the 14th amendment? If a state makes a law in violation of the rights of its citizens, then the 14th amendment applies.

        It is not a matter of picking and choosing as you asset but rather the question of infringement of rights.

        1. “It is not a matter of picking and choosing as you asset but rather the question of infringement of rights.”

          Right. So, when Oregon passed a “Right to Die/death with dignity” law that Republicans didn’t like, the R’s just stood around and let the law go into effect. They didn’t try to use the federal government to invalidate it, by using federal control of prescription medicine to punish physicians who followed the state law. Oh, wait, that’s exactly what they did, and got spanked in the federal courts over it.
          (They did try to put an initiative on the ballot to repeal the law in the next election cycle, but the repeal failed by a bigger margin than the original law passed with.)
          And when California decided to decriminalize marijuana for medicinal use, they totally didn’t use federal law enforcement to hassle sick people complying with state law.
          In other words, come on back when the facts you’d like to cite are true.

          1. Wow. Republicans tend to infringe on rights too? Wow. Glad you pointed that out. Your grasp of the obvious is excellent.

            So your argument is that makes it ok for the left to do it as well?

            1. “So your argument is that makes it ok for the left to do it as well?”

              If you’re going to make up my arguments, would you mind doing a better job of it? Or you could just use the ones I’ve helpfully written down for you.

            2. “Wow. Republicans tend to infringe on rights too? Wow. Glad you pointed that out.”

              That part was actually for Brett. To hear him tell the story, there has never, ever been a time when his party abridged anybody’s rights in any way, nohow.

      4. 1: Here we see the Leftists’ dedication to principle

        The 14th Amendment extends the Bill of Rights to States, unless the Leftist doesn’t like the right

        2: The 2nd doesn’t say “Congress shall make no law”, it says “the right of the people to keep and bear arms shall not be infringed.”

        We conservatives believe the US written Constitution should be enforced. What part of “shall not be infringed” are you too stupid to understand?

        1. ” What part of “shall not be infringed” are you too stupid to understand?”

          All that part before the comma, which you’d prefer to pretend isn’t even there.

          1. 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.

            Ah, so you don’t understand the part about “the militia”? Here, a reminder:
            (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States

            So “who are the militia”? They are all the able-bodied American citizens of military age.

            Whose right to keep and bear military arms shall not be infringed.

            Do you understand now? Or are you just an evil lying sack of garbage who refuses to admit to understanding?

            1. ” Or are you just an evil lying sack of garbage who refuses to admit to understanding?”

              That’s YOUR thing, and you can keep it.

  5. Formal logic has greater certainty than the Laws of Physics. The contrapositive of a true assertion is always true. Do you lawyer d-word believe that legal liability is a replacement for endless cycles of violent revenge for injuries, kidnappings to enforce promises, and procedure free, on the spot killings of criminals? Then the contrapositive is also true. Immunity justifies all of those in formal logic. Find the legally immune, find a target for self help. No occupation has dealt itself more immunities than the lawyer profession. None of it has the slightest justification.

    The right to bear arms is not for hunting nor for sport shooting. It is to kill invading soldiers, tyrants, and their agents. Democrats should take note of the 65 million patriots owning 300 million guns, numbers growing daily out of fear of the Democrat oligarch and its thugs in the lawyer profession and in the street. Gun grabbing is also an attack the safety and peace of mind of the weak, such as all females, handicapped people, and oppressed minorities.

    1. Correct, and in 1861 when tyranny reared its long sallow gaunt horse face did Jefferson Davis blow a shofar and call forth the unorganized militia?? Of course not, he organized an army and used weapons confiscated from federal forts and state militia armories.

      1. Tough call for me. Cruel, detestable slave owners vs Heinous Homosexual Tyrants.

      2. No, a lot of the Confederate weapons were personally owned Revolutionary war vintage guns.

        1. No wonder your heroes lost.

          1. Ironic. Confederates were always seen as losers, hate filled slavers, and traitors. All were Democrats, of course. Then the modern Democrat party turned them into symbols of freedom, resistance to tyranny, and opponents of big government. Good job tearing down statues, American Talibans.

            1. Stick with one argument long enough to make it to the end, or you wind up with stream-of-consciousness dreck like “Ironic. Confederates were always seen as losers, hate filled slavers, and traitors. All were Democrats, of course. Then the modern Democrat party turned them into symbols of freedom, resistance to tyranny, and opponents of big government. Good job tearing down statues, American Talibans.”

              1. Wow, so you believe the Marines that tore down the Saddam statue in Baghdad are “American Talibans”?? You should try calling an actual Marine that to his face. 😉

                1. SC,
                  he does not have and never did have the balls for that

                  1. One good thing to come out of Republicans resistance to moving statues is that it could cost George P Bush his political career. So he wanted to move a statue of the Alamo heroes a few yards during the redevelopment of the area around the Alamo…but once you allow a statue to be moved even a few yards you are essentially saying once erected statues and the ground they are on are NOT sacrosanct and so you can move them a few miles to a museum.

                  2. Thanks to intimidation by the lawyer traitor imbedded among our warriors, down to the squad, and hobbling them with threats of prosecution, they got kicked out of 6 countries by Stone Age savages with $50 weapons. This is after taking our $trillion and wasting it and thousands of their lives. The lawyer traitor will be held to account. I would like a list of those DOD lawyers. They should be arrested, tried for real treason (aiding the enemy), and shot on reading of the verdict. The lawyer helped our enemies and lost us our wars.

                    1. “Thanks to intimidation by the lawyer traitor imbedded among our warriors, down to the squad”

                      Where were you serving that had lawyers embedded with combat troops? Even the ones on TV don’t have that.

                2. “Wow, so you believe the Marines […]”

                  I notice you didn’t quote anything I said in support of what you claim I believe.
                  Might this be because I never said anything even vaguely like the statement you claim I “believe”?

                3. “Wow, so you believe the Marines that tore down the Saddam statue in Baghdad are “American Talibans”?? You should try calling an actual Marine that to his face.”

                  Funny story. When I was an undergraduate, I was in the ANG and my best friend at the time was a Marine reservist. He talked me into applying to the PLC with him, but a heart condition the ANG missed kept me out. They were willing to overlook the fact that I had raw vision of about 20/800, but not the heart condition. I went another 20 years before getting that properly medicated.

            2. “Confederates were always seen as losers, hate filled slavers, and traitors.”

              And rightly so. But the supply of hate-filled, racist losers was not capped in 1865. There are enough left even to this day to fill an entire political party.

        2. Nope. Jefferson Davis organized a volunteer regiment during the Mexican War on the condition the federal government supply him with modern rifles that would eventually belong to Mississippi state militia.

    2. “Democrats should take note of the 65 million patriots owning 300 million guns, numbers growing daily out of fear of the Democrat oligarch and its thugs in the lawyer profession and in the street.”

      Right. You might want to check up on what portion of your 300 million guns are in the hands of Democrats already.

      1. Millions of guns are in the hands of Democrat criminals. 90% of criminals are Democrats. I was referring to legally obtained guns.

        1. Even if I assumed your bullshit was true, does a bullet care if the gun was obtained legally?

          1. James. You are correct. We do not need gun control We need people control. Most of the people needing control are fatherless Democrats.

            1. “Most of the people needing control are fatherless Democrats.”

              Or twits divorced from reality. Definitely one of those two.

    3. I think that you are seriously underestimating both the number of gun owners and esp of guns in civilian hands in this country. Probably closer to 400-500 million guns.

      Of course, it is all location dependent. Here in a subdivision of 9 houses in rural MT, I wouldn’t be surprised if there were 50 guns. Someone might have a bear gun, an elk gun, a deer gun, several shotguns, a couple handguns, including a truck gun etc. Maybe an AR-15 for wolves, coyotes, and leftist gun grabbers, and maybe just the fun of building one. Of course, a survey by a left wing news organization like the NYT or WaPo might indicate half the houses having one gun each, and the remainder none.

      1. Over in Northern Idaho, the number might be an order of magnitude higher, as the white supremecists built their compounds there and buried weapons nearby, which some of them used to rob banks to finance their operations (and buy more weaponry).

        1. Guessing that we are not that far apart right now. Roughly 20 miles to the ID border right now. Then 40 miles to I90, and thence into CDA. The alternative is 80 miles down river to Sandpoint.

          Apparently the CDA area is #1 in growth in the country right now. Prices are starting to get scary. Not hit as bad here in NW MT. Yet.

          1. “To a great extent, a lot of the militias in N ID seem to have been pushed out by the cost of living there”

            You guessed poorly. I’m in the central Atlantic region. When I was about 15, an ex-girlfriend’s dad moved up to Coeur d’Alene, and the big deal at the time was the dude who was having legal problems because his landmines blew up a neighbor’s dog. I’m originally from the other end of Washington, the peninsula across the channel from Victoria.

            1. So, you are stereotyping.

              1. Yes, I’m stereotyping that central North Carolina is NOT close to Northern Idaho.

        2. Let me add that my spouse was close to buying a bit of land up by my namesake lake in N ID about 30 years ago, before her husband at the time pointed out the militias there. Probably would have been a good investment, esp since that area is less than 20 miles from CDA. And indeed, the two have essentially grown together.

          To a great extent, a lot of the militias in N ID seem to have been pushed out by the cost of living there, at least anywhere near CDA. maybe a bit south, but I don’t expect a lot of them left above I-90 in ID. Think that many of them moved over here in MT. I do know that Randy Weaver and a daughter bailed from Ruby Ridge (just N of Sandpoint), after the FBI executed his wife, and moved over by Kallispell, I believe. I know people who know them and see them on the county fair circuit.

          1. I’m not sure why that’s a reason to not buy a piece of land. I grew up in Michigan militia territory, nearly ended up James Nichol’s neighbor, and they’re not bad people, they just get really bad press from media that really hate them.

            1. You blow up a daycare center, and bad PR is gonna follow you.

              1. Really?

                How many day care centers have been destroyed by BLM and Antifa in the last year? Over or under 10?

                1. You have a list?
                  And are you operating under the misapprehension that BLM doesn’t have any PR problems?

                  1. I confess I don’t make an effort to track all the depredations of the American Left’s terrorists, since keeping a close track might force me to do something about it

                    I’ve yet to find any on the Left willing to admit what Antifa and BLM are: domestic terrorists and domestic enemies of the US Constitution.

                    Will you be the first?

                    1. No, I will not join you in abandoning reality.

                2. “How many day care centers have been destroyed by BLM and Antifa in the last year? Over or under 10?”

                  Based on your list, the total number is 0. 0 is under 10.

          2. “To a great extent, a lot of the militias in N ID seem to have been pushed out by the cost of living there”

            Plus they lost the wrongful death lawsuit and had the land seized and awarded to the family of their victim, Mr. Seraw.

    4. “Formal logic has greater certainty than the Laws of Physics. ”
      That is because it is an axiomatic system that does not have to have any relation to the real world.

      1. Yes, his problem with leaning so hard on formal logic, is that it’s treating politicians as though they were the demons of literature, malign but absolutely bound to the literal word of the law. The “gold fringe” idiots make the same sort of mistake.

        Actual politicians are not bound to follow the logic of their announced positions or the law.

        1. But if they show the slightest trace of functional intelligence they risk being labeled RINO.

  6. What The Right to Bear Arms does demonstrate–beyond any serious dispute–is that law in England (but not Ireland) from at least the late seventeenth century until 1920 recognized the right to bear arms.

    Would it qualify as serious dispute to point out that the law in England from time immemorial down through the early part of the 18th century—and in some respects even into the early 20th century—applied notably differently to English freemen (a tiny minority, presumed to enjoy civil and political liberty) than it did to English commoners (a vast majority subject to rule by caprice at the lower intersections of rural landed power and established religion). The notion that the Statute of Northampton might stand as a precedent useful for governance of a 21st century American laboring man seems historically far afield.

    If there are any with an urge to disagree by citing text from this English statute or that one, then you haven’t grasped the historical point.

    1. Gun free England is now more crime ridden and dangerous than Detroit or Baltimore. The crime rate of Europe is a Commie myth, a masking ideology.

      1. Outside of some urban centers filled with Democrats, the murder rate in the Wild West was miniscule compared to anywhere in the US today.

        1. Gosh… you mean places that don’t have any people living in them don’t have very many gun crimes? How does THAT work?

          1. I am referring to rates. I want you to learn about denominators, a fifth grade math subject. Lawyer math stops at the fourth grade, that needed to count money.

            1. You’re bad at math, too. What’s the rate of crime when both the numerator AND denominator is 0? (0 victims out of 0 potential victims)
              AND, for about the fifth time, I am not a lawyer. I am an IT administrator. We take math classes after fifth grade.

              1. Sorry, James. Apologies. We have no dispute. I respect your point of view, even when we disagree. Have a blessed day.

                1. “Sorry, James. Apologies. We have no dispute.”

                  The hell we don’t.

              2. James,
                Your objection is pointless. Neither the numerator nor the denominator were zero in this case.
                But You may be interested to know the the limit of the quotient of two functions may still be finite and well defined even if the value of each approaches zero.

                1. It’s still not a shocking revelation to find that unoccupied lands don’t have gun violence problems.

                  1. Just like you, ducking the objection to your points post

                    1. Look, in a shocking irony, the guy who keeps telling other people to “grow up” turns out to be an immature prat.

      2. David,
        you watch to many BBC crime shows in which murders even in small towns come in 3s and 4s.

        1. But only where the famous detective shows up.

          If Father Brown is coming to your village, watch your back.

          1. How many seasons did Law & Order UK run for?

    2. “Would it qualify as serious dispute to point out that the law in England from time immemorial down through the early part of the 18th century—and in some respects even into the early 20th century—applied notably differently to English freemen”

      And everybody in America is supposed to be a free man. So, no.

      1. Fine, Brett. So let the would-be originalists start anew with American constitutionalism, and laugh out of court all this crap based on misinterpretations of English law from folks who seem never even to have read a decent secondary source.

        1. Great!

          We’ll just go with “the right to keep and bear arms shall not be infringed”

          Now, which of those words / word groupings do you not understand?

          1. The part before the comma, which you seem to have forgotten.

            1. Duplicate comment, which gets a duplicate reply:

              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.

              Ah, so you don’t understand the part about “the militia”? Here, a reminder:
              (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States

              So “who are the militia”? They are all the able-bodied American citizens of military age.

              Whose right to keep and bear military arms shall not be infringed.

              Do you understand now? Or are you just an evil lying sack of garbage who refuses to admit to understanding?

              1. Keep in mind that our Founding Fathers were well aware of what they meant by militias. The Revolutionary War was started in 1775 by the Minute Men (etc) militias being called out from the nearby towns to repel a supposedly secret attempt by the British soldiers and marines to seize their cannons. At first, the British were successful, greatly outnumbering the local militia members. But as other groups of militias from the surrounding countryside, and, ultimately, surrounding states, arrived, the British were stopped, and ultimately forced to flee back to Boston. That was the beginning of our Revolutionary War. The various militias then went on to form the core of the Continental Army.

                The same small group of Founding Fathers were involved with these militias, from before the Shot Heard Around The World, up through, the war, the Declaration of Independence, the Constitution, the Bill of Rights, and at least the first three Presidents. Washington and Adams were heavily involved in the pre-war militias (though Adams’ cousin Samual was even more involved, apparently having fled Boston even before the battles of Lexington and Concord).

                We used to learn about the Minute Men in school, and how they started the Revolutionary War by collecting and stopping the British from seizing their arms, through strength of arms. This was still vividly in the minds of the Founding Fathers when they drafted our Bill of Rights. Anything else is historical revisionism of the worst sort.

                1. Of course, the country was founded without a Bill of Rights, which came along early, but not at Founding.

              2. “Duplicate comment”

                By which you mean I replied once? And counting that high gives you headaches?

                “so you don’t understand the part about ‘the militia’?”

                I was an enlisted member of my state’s militia. My experience in the militia doesn’t seem to match your expectations of what it should have been.

                1. No, James, I’m capable of counting to two. Apparently unlike you:

                  James Pollock
                  May.4.2021 at 2:30 pm
                  All that part before the comma, which you’d prefer to pretend isn’t even there.

                  James Pollock
                  May.4.2021 at 2:38 pm
                  The part before the comma, which you seem to have forgotten.

                  Congratulations on always being wrong

                  1. You counted up to one and called it “two”. This is how you show your superior skill at counting?

    3. This comment is fallacious. It is not who the law applied to that is significant. It is how the language “bear arms” has historically been interpreted by judges.

      In all cases, as an individual right. That is the historical point.

  7. The fact is you can’t have both “text, history, and tradition” as the methodology used to evaluate Second Amendment cases and concealed carry held to be a Second Amendment right.

    The New York respondents will have on their side prohibitions on concealed carry and prohibitions on concealable weapons in American and English law going back to ca 1260 AD. The petitioners will have only Bliss v. Commonwealth which held that a man can carry a sword concealed in a cane under the Kentucky constitution and also held that Kentucky can change its Constitution to prohibit concealed carry.

    Kentucky changed its constitution.

    SCOTUS changed the question presented in NYSRPA v. Corlett from whether or not there is a right to carry a handgun in public to whether or not the denial of the petitioners’ application for a concealed carry permit violated the Second Amendment.

    This case presents a perfect opportunity to instruct the lower courts that they are to use text, history, and tradition when evaluating Second Amendment cases and this is why the Heller and McDonald opinions were right about prohibitions on concealed carry not infringing on the Second Amendment right.

    1. Tradition clearly points to there being no distinction between open and concealed carry nor any prohibition on either for most of the country, which explains why their are no Court cases. The reality is that for most of this nations history, bearing arms was not unusual or prohibited unless you were a minority.

      These distinctions between modes of carry were a relic of the antebellum south until their 20th century revival.

      1. Lol, no. Concealed carry needed a movement in the 1990s because it was outlawed for all Americans in most states.

        1. That would be the “20th century revival” Greg was referring to.

          He’s right, until the 20th century, outside the Jim Crow South, you could carry a gun however you pleased, and even in the Jim Crow South, the gun laws were enforced mostly against minorities.

          See, for instance, Watson v Stone, in Florida: “The original act was passed when there was a great influx of Negro laborers … and the Act was passed for the purpose of disarming the Negro laborers…. The statute was never intended to be applied to the white population and in practice has never been so applied.”

          Then during the 20th century, laws that were originally intended to oppress minorities began to be applied to everybody, and to spread across the nation, as people in government started to view the general population in the way the South had viewed blacks.

          1. “He’s right, until the 20th century, outside the Jim Crow South, you could carry a gun however you pleased”

            Keeping in mind that statehood for much of the country didn’t come into being until late in the 19th century. That meant that federal Territorial law applied. Generalizing state laws from Territorial history and practice will introduce a lot of noise.

          2. That concerns registering guns and not concealed carry on a person. And the judge isn’t saying the law is necessarily “racist”…he is saying the was targeted at preventing Black migrant workers from killing each other in a specific field of work. Nice try though.

            1. “That concerns registering guns and not concealed carry on a person.”

              First paragraph of linked opinion: ‘Mose Watson, not being a Sheriff, or any other officer within the exceptions of Section 7202 C. G. L. Fla. 1927, at about 3:00 A. M. on February 10th, 1941, while riding on the right front seat of an automobile which he then and there owned and controlled, which automobile was then and there being driven along a street in the Town of Holly Hill, in the 8th Justice of the Peace District of Volusia County, Florida, did have a pistol belonging to him in the glove pocket attached to the inside of the dash of said automobile, immediately in front of the seat which he occupied, *Page 518 where it was readily accessible to him, without having a license to carry said pistol around with him as required by Section 7202 C. G. L. Fla. 1927.’

              1. Yep, “without having a license to carry said pistol”. Thanks.

                1. Careful you don’t throw out your back moving those goalposts

                  1. So, in your view, only one team is entitled to moving goalposts?

      2. Greg – Every court opinion except for one, upheld prohibitions on concealed carry. That lone exception was Bliss v. Commonwealth which held that the Kentucky Constitution protected a right to carry a sword concealed in a cane. That court said that Kentucky could change its constitution to prohibit concealed carry. Kentucky changed its constitution to prohibit concealed carry.

        Even the Wrenn decision said that Heller’s citation to the Chandler decision shields the right to Open Carry and Heller’s citation to the Nunn decision means that concealed carry can be banned.

        The Moore decision which struck down prohibitions on carrying loaded handguns, rifles, and shotguns said that Illinois can ban concealed carry, as per the Heller decision.

        For most of American history, in nearly every state, concealed carry was banned. Only 8 states allowed concealed carry, and seven of those states required a permit. A permit that was issued entirely at the discretion of the issuing authority.

        But then Florida created “shall issue” concealed carry permits in 1987 and banned Open Carry at the same time thanks to the Butcher of Waco, Janet Reno.

        So share with the class all of this case law and laws that made no distinction between concealed and Open Carry. The cases cited by the Heller decision held that concealed carry was evil, and not a right protected by the Second Amendment or state analogs.

        1. There has to be some right to open carry because people must be able to bring a gun home after buying it. Basically we have a right to open carry but it can be liberally regulated…that is if one goes by “text and tradition”.

          1. That is a whole other subject of law generally referred to as “transport” not “carry” (where the gun is unloaded, in a case or shipping box, or otherwise rendered inoperable for the duration of transport)

            “Carry,” both open and concealed, generally refers to loaded, operational, and accessible firearms.

          2. No, since “the militia” obviously engage in “open carry”, the right to open carry “may not be infringed”.

            Thank you for playing

            1. “since ‘the militia’ obviously engage in ‘open carry'”

              When I was in, I did not “open carry” even once. Try again.

          3. “There has to be some right to open carry because people must be able to bring a gun home after buying it.”

            so if you buy it, the only way to get it home is loaded and ready to fire?

    2. The fact is you can’t have both “text, history, and tradition” as the methodology used to evaluate Second Amendment cases and concealed carry held to be a Second Amendment right.

      Ok, you can limit concealed carry.

      But you can not limit open carry, or any weapons that might be born by a member of the US Military (see “militia” == “military”).

      That means revolvers, semi-automatic handguns, Uzis, M16s, hand grenades, bazookas, mortars, belt fed machine guns, and 50 cal sniper rifles.

      I’ll take that deal

      1. “But you can not limit open carry, or any weapons that might be born by a member of the US Military (see “militia” == “military”).”

        You’re inventing the rules and (surprise!) trying to write them in your favor. The Constitution is written to limit the ability of Congress to keep a standing army. So you want the ability to keep the same weapons as a guy who isn’t even supposed to exist. Still want that deal?

        “That means revolvers, semi-automatic handguns, Uzis, M16s, hand grenades, bazookas, mortars, belt fed machine guns, and 50 cal sniper rifles.”

        Where can I pick up my F-15, which is the weapon currently operated by my previous militia unit. (They had F-4C’s when I was still serving)(On day 21 of Basic Military Training, they collected the rifles and never gave them back. One the other hand, in technical school, they let us play with a b-57.)

        1. Wow, that was amazingly stupid of you

          Yes, the writers of the US Constitution wanted America defended by the militia, not a standing Army

          As such, they wanted the militia to have the right to keep and bear to all the weapons a member of a standing Army might bear.

          Which is why there were cannons in private hands in the late 1700s and early 1800s

          You want an F-15? You’re welcome to buy one from anyone who is willing to sell you one, assuming you have the scratch.

          Bombers? That’s probably out of range for a reasonable militia.

          It must really suck to know you’re in the wrong, and just be so vile that you don’t care

          1. “Wow, that was amazingly stupid of you”

            Still can’t match you. Your stupid vastly exceeds mine.

            “You want an F-15? You’re welcome to buy one from anyone who is willing to sell you one, assuming you have the scratch.”

            Nope, the ones for sale to (not the US government) get a different avionics kit-out. It’s not the same aircraft.

            “Bombers? That’s probably out of range for a reasonable militia.”

            A) who said anything about bombers? That’s you dragging them in.

            B) You can drop a b-57 off of a whole range of fighters, you were just saying I could have one, as soon as I round up the scratch.

            C) I was IN a reasonable militia unit that currently has F-15A as it’s primary aircraft.

          2. “It must really suck to know you’re in the wrong”

            I’ll have to take your word for it.

        2. From the United States Constitution

          “The Congress shall have Power To … grant Letters of marque and reprisal”

          Which meant that it was clearly understood that there would be American privateers who owned their own combat capable ships, in addition to the US Navy.

          For their time, some of those ships were easily as powerful / destructive as an F-15, or a tank

          1. And what happened to private citizens who owned warships and who acted like privateers without their Letter of Marque?

            Hint: The Constitution tries to limit Congress’ ability to keep an army, but freely grants them the right to maintain a Navy.

      2. “‘militia’ == ‘military'”

        In the sense that “Little League” == “Major League”

        When we decided to have a first Persian Gulf War, I got a letter informing me that I was likely to be called to active service. Turned out, the big boys got the job done in 4 days and Uncle decided that he didn’t need my services after all.

        1. That’s about the closest you’ve ever come to a correct statement.

          Of course, it completely destroys everything you’ve been arguing for.

          Because those Little League players more or less get the same or better equipment, follow the same rules, etc as the big leaguers.

          Just like we members of the unorganized militia are Constitutionally guaranteed the right to keep and bear the same arms as the members of the US Military.

          Except, because we’re members of the unorganized militia, we’re not subject to the rules and discipline of the US Military. Just like the Little Leaguers can use aluminum bats, unlike the big leaguers.

          It’s that whole “shall not be infringed” part, that you keep on trying not to see.

          1. “It’s that whole ‘shall not be infringed’ part, that you keep on trying not to see.”

            Matches that part about being “well-regulated” that you don’t want to look at.

  8. Lawyer Jefferson had it right when he said, weapons were to oppose tyrants. Lawyer Madison had him dispatched to France for 5 years to keep Jefferson away from the Constitutional Convention. After Jefferson returned in 1789, the Second Amendment was enacted in 1791.

    1. Jefferson also carried out the Louisiana Purchase without putting it to Congress. What a Constitutional scholar he was!

      1. It seems you keep arguing that since Group A isnt always consistent in respecting the constitutional limits, then its fine for your Group B to never have to be bound by them.

        1. In the sense that I’ve never argued anything even remotely close to what you seem to have imagined me saying, you’re absolutely correct!

    1. But I bet you’ll whine plenty when they return fire.

  9. Targeting a leader is not effective, as happened in this sad tragedy. The oligarchy must be reached, down to the last kitten.

    https://www.msn.com/en-us/news/world/the-armenian-genocide-this-is-what-happened-in-1915/ar-BB1ggKUt?ocid=msedgdhp

  10. As the surgeon may be the best teacher of anatomy, the litigator may be the best teacher of history. Great book filled with details no one knows. Both know the most about a subject they have to use in the real world, and can explain it best.

    1. What the hell, this comment actually has something good to say about a lawyer! Something fishy’s going on!

  11. Louisiana Governor Francis Nicholls was more explicit: “Every citizen of this state has a right to keep and bear arms in conformity with our militia laws.”

    In 1860 Francis Bird of Massachusetts said “the right of the people to bear arms” meant “to bear them as a part of the military power of the State.”

    New Hampshire Governor John Page in June of 1841 explained the bearing of arms is bearing them as part of the military power of the State and not an individual private bearing of them:

    New Hampshire Governor John Page: “The right of the people to keep and bear arms,” is a right dear to every freeman; arms should be in the hands of every citizen of the Republic, who is able to wield them, and it is the duty of Government to prescribe such rules of organization and discipline, as will give those arms the greatest possible efficiency.

    Court highlighted arms bearing provisions found in early State Constitutions actually originated verbatim from those State’s own militia statues, something the court had gone to great pains to try and distant from having anything to do with arms of the militia.

    1. You are fighting a battle that you have already lost – the 2nd Amdt protects an individual right to keep and bear arms. The Militia clause in the 2nd Amdt is prefatory, stating a reason for the necessity of the right, but not limiting it.

      That was decisively determined in the Heller case, which was influenced greatly by the scholarship of Holbrook, Kopel and, of course, (Eugene) Volokh, the proprietor of this blog.

      1. I will await the guidance of an enlarged, modern Supreme Court.

        Will gun nuttery be the precipitate of Court enlargement?

        Or will it be vote suppression? Admission of states? Statist womb management?

        So many issues . . . any might suffice.

        1. Never going to happen, but your suppression of black gun owners is rather bigoted.

          1. Do the gun nuts win the American culture war in your disaffected, superstitious fantasy world, clinger?

            Open wider, buckleup. Your betters are not done shoving even more progress down right-wing throats.

            You get to whine about it all you want at the Volokh Conspiracy . . . but you will comply with the preferences of better Americans. As usual.

            1. When they capture and occupy the capitol, then I’ll worry. Wait, what? They did invade the capitol, back in January? And they changed everything? Oh, nothing? OK, then.

              1. These no-count rubes have never stuck with or accomplished much of anything in life. I see no reason to expect them to change now. They are losers. Their communities are losers. Their politics are losers. Their beliefs are losers.

        2. I will interpret that as justifying voter fraud through court packing.

          But just like there is an insignificant amount of actual voter suppression in this country, your fear of gun nuttery is similarly feigned and manufactured- both to the same ends – turning this country from a democratic republic into an autocratic banana republic.

          1. Disaffected, whining, bigoted right-wing gun nuts are among my favorite culture war casualties.

          2. ” just like there is an insignificant amount of actual voter suppression in this country”

            The amount of attempted actual vote suppression in this country is non-trivial.

            1. I wasn’t commenting on “attempted” voter suppression, but actual voter suppression, which is very close to zero. “Attempted voter suppression” is most likely anything reeking of ballot integrity. You need a photo ID to vote? Attempted Voter Suppression!!! Did that actually disenfranchise any non trivial number of legal registered voters? Of course not. You can’t buy booze or cigarettes, fly on planes, cash checks, get prescription drugs, etc w/o a photo ID these days. And across the country, if you need one to vote, and don’t have one, they are inevitably free (presumably based on the prohibition of poll taxes). I challenge you to find a study showing a more than a nontrivial number of people who tried to vote, but couldn’t, because they didn’t have the not able to vote due not having a state issued photo ID.

              1. So your guys’ fake ballot-security voter suppression isn’t even working?

          3. “I will interpret that as justifying voter fraud through court packing. ”

            Interpreting things to fit your pre-conceived notions is why nobody else wants you interpreting things for them.

        3. RAK,
          Your usual nonsense. “let’s wait until we get more ideologues on the Court.”

          1. “let’s wait until we get more ideologues on the Court.”

            This is what the conservatives have been saying since Reagan. They were going to overturn everything the Warren Court ever did, and stamp out abortion and pornography and dancing in public.

            1. As that did not happen, neither will RAK’s imagined golden age

              1. You haven’t given Justice Barrett any time yet.

            2. No, what conservatives have been saying is “let’s wait until we get more honest judges on the Court who follow the written US Constitution, rather than their own personal political desires.”

              Which, hopefully, we finally have

              1. “what conservatives have been saying is ‘let’s wait until we get more honest judges on the Court who follow […] than their own personal political desires.'”

                Based on who you keep picking.

      2. Facts never lose, they may be covered up, but never a losing proposition.

        1. Which is why you’re going to lose

      3. “That was decisively determined in the Heller case”

        Sure, and “separate but equal” was decisively determined by Plessy to be allowed by the Constitution, before Brown came along.

    2. Why do I care what Government Actors opine, concerning the right to keep and bear arms.

      The 2cnd amendment has the sole purpose of arming the people against the government, or foreign invaders. It is a contradiction of purpose to allow Government to “regulate” their check and balance out of existence. While the States are free to form and manage State militias at their discretion. That does not preempt an individuals right as a member of the unformed Militia, as defined by Federal law.
      Every male (now includes female) of age is a member of the militia.

      1. “The 2cnd amendment has the sole purpose of arming the people against the government, or foreign invaders.”

        So you say it has two “sole purposes”? That you invented despite the authors putting its purpose right into the text?

    3. http://www.law.cornell.edu/uscode/text/10/246

      10 U.S. Code § 246 – Militia: composition and classes
      (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
      (b) The classes of the militia are—
      (1) the organized militia, which consists of the National Guard and the Naval Militia; and
      (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

      Which of these words don’t you understand?

      What part of “the unorganized militia” do you not understand?

      Exactly how stupid and ignorant do you have to be to be a member of the Left?

      1. “What part of “the unorganized militia” do you not understand?”

        How that relates to a “well-regulated” militia.

        “Exactly how stupid and ignorant do you have to be to be a member of the Left?”

        Not quite as much as the Right seems to dictate. (Meanwhile, centrists laugh at you both.)

        1. “Well regulated” means a militia that is familiar with their arms and trains / practices on a regular basis

          The militias at Lexington and Concord were part of the “unorganized militia.” They most certainly weren’t under the control of their government. You know, the British government that they were rebelling against?

          Are you really this historically ignorant?

          1. “‘Well regulated’ means a militia that is familiar with their arms and trains / practices on a regular basis”

            You’re trying to define terms to your own liking. “well-regulated” means “well-regulated”.

            “Are you really this historically ignorant?”

            No, but the person you imagine you’re debating might well be. Because that’s the way you imagine it. If you don’t like it, don’t imagine it that way.

  12. “A few twentieth century English cases involved the Statute, and all of them agreed that it an essential element of the crime was that the arms carrying cause “terror of the people””

    As Josh says, the mental state of the person carrying the arms doesn’t matter. It’s whether other individuals feel terror as a result of the person carrying the arms. So, if someone is walking down the street with a rifle slung over their shoulder, and this “arms carrying” causes people in the area to be terrified, then the carrying can be made a crime.

    Excellent insight Josh.

    1. Excellent insight David….I’m so used to criticizing Josh!

      Also, this greatest book ever written about Second Amendment is published by Bombardier Books, and imprint of Post Hill Press. From the “About” page:

      “Bombardier Books has quickly found success by making its way into modern culture with numerous bestselling titles. Bombardier Books largely places its focus on conservative political nonfiction works. Its mission is clear:”

      Well….this will definitely be a legit source…..

      1. So, you’re attacking the scholarship of this book based on who publishes it? How about the color of the cover, and the font, too?

        How pitiful is that!

        1. ThePublius, it’s a busy world. Folks need efficient ways to get through preliminary screening tasks. An example of a more-useful distinction to help with that is that the Oxford University Press is likely to publish more reliable stuff than Fox News does. You can get your science info from supermarket tabloids, or from Scientific American, or from Nature. The notion is stupid that you owe an article from the tabloids the same credence (or the same attention level) you give to one from Nature.

          Of course, I am wasting my time. You already know that, or you are beyond help.

          And by the way, you can also harm your publications’ credibility (along with other factors contributing to marketability) with bad font choices and inappropriate cover colors. If publishers are not at least expert about that, then they dis-serve their authors.

          1. I’d rather get my science from Nature than Scientific American. That latter publication went explicitly political decades ago.

            1. So did you.

      2. It’s a good thing publishers like Post Hill Press exist. The big houses are becoming increasingly woke.

        “I am an independent book publisher, and in recent days I have been taking calls from journalists asking which authors I would refuse to publish. That’s an odd question to ask an American publisher, but suddenly it seems to be on everyone’s mind in our industry. Some 250 self-described “publishing professionals”—mostly junior employees of major houses—have issued a statement titled “No Book Deals for Traitors,” a category in which they include any “participant” in the Trump administration.”

        Blacklists Are the Rage in Publishing

        1. ” The big houses are becoming increasingly woke.”

          EEK!

    2. “As Josh says, the mental state of the person carrying the arms doesn’t matter. It’s whether other individuals feel terror as a result of the person carrying the arms.”

      Would you apply that to the terror that black people feel when an armed cop approaches?

      1. Surely there’s a reasonable man standard here.

        And it’s not all that clear to me that the average black person, (As opposed to black criminals.) actually feel all that much terror when an armed cop approaches.

        1. You could try driving down to Elizabeth City and asking some of them.

          1. I suspect glibness on this subject varies depending on whether or not one has ever experienced a “felony stop” by police. I have, and it’s plenty scary.

  13. Possession of a firearm should never be a crime. It harms no one, and only serves to provide protection for the possessor and those he might protect near him. If someone possessing a firearm commits a crime against a person or property, then they can be arrested and prosecuted and punished for that crime. Possession of a firearm is immaterial. I would go so far as to say I’m opposed to possession of a firearm being an aggravating factor to a crime against person or property.

    There’s a terrible case recently where a man disarmed another who confronted him with a firearm. The police and prosecutor sorting out what happened charged him with possessing the firearm illegally, and let the perpetrator go!

    Kennesaw Police:

    Blurred Justice: Army veteran arrested after disarming gunman, saving friends

    1. “Possession of a firearm should never be a crime. It harms no one, and only serves to provide protection for the possessor and those he might protect near him.”

      Unless you count the people who have managed to shoot themselves, and/or other people near them, without actually intending to.

      1. But shooting the gun is not “possession”.

        1. True, sometimes the gun is fired by circumstance, as is occasionally recorded under newspaper features such as “news of the weird”, where they sometimes carry stories of hunters who are shot by deer or by their dog(s). But most shootings are by people who possess firearms.

          1. You have completely failed to address Brett’s point. Just because shooting a gun implies possession of said gun, doesn’t mean that possession is harming anyone. To claim otherwise you’d have to advocate cutting off everyone hands, lest they punch some random person on the street

            1. Way to modify what I said to suit your own preference for what you wish I’d said.

    2. Possession of a firearm should never be a crime. It harms no one, and only serves to provide protection for the possessor and those he might protect near him.

      With, “might protect,” you invoke the notion of probability. It is beyond question that increased firearms prevalence is harmful to the entire population of people who can get access to guns while contemplating suicide.

      It is less certain that firearms prevalence has the same aggravating effect on other expressions of destructive impulsivity—criminal homicides, for instance—but argument by analogy makes that case pretty strongly.

      Gun advocates should avoid every mention of probability, likelihood, tendency, or statistical analysis. Arguing on the basis of such concepts always ends with back-pedaling demands from the gun advocates that every use of statistics be blocked and ruled out of bounds.

    3. “Possession of a firearm should never be a crime.”

      Let’s explore your thesis.
      Hypothetical #1:
      Somebody swipes your rifle. The cops follow some footprints left in the snow and catch me with it. At which point you catch up and helpfully inform them that “Possession of a firearm should never be a crime”, and so I’m only guilty of leaving footprints in the snow, not possession of stolen property.

      Hypothetical #2:
      There’s a theft of a new weapon design from a defense contractor company located in the Nevada desert. It’s an awesome new air defense laser designed to shoot down hostile aircraft of all types. A year later, a British MI5 agent infiltrates my volcano-based lair to stop me from using what they assume is my laser weapon to shoot down commercial aircraft in the vicinity. the agent successfully disables my air defense cannon, but when the US authorities arrive, I argue that “Possession of a firearm should never be a crime” and although I have a weapon built from plans that were stolen, there’s no evidence that I stole them, nor is there even evidence that I have used the weapon.
      (Yes, I did cheat in the second one, effectively substituting “weapon” for “firearm”. Sue me.)

  14. The police and the prosecutors, their supervisors, must be fired. The town should pay the victim $10 million to deter. Any judge that fails to dismiss on first pleading gets fired and run out of the state. This pro-criminal, scumbag profession must be crushed.

    1. Quick, ship this man some quetiapine

  15. Can someone point to any historical writings that either
    a) limited the right to keep and bear arms to when serving in a militia , or
    b) the right to keep and bear arms was limited to times when the government gave a person permission

    1. As for, “b)” take a look at the regulations on any military base today.

      But of course you meant civilians, and if, “may issue,” gun permits don’t fit your criteria, I don’t know what would.

      1. As for, “b)” take a look at the regulations on any military base today.

        But of course you meant civilians, and if, “may issue,” gun permits don’t fit your criteria, I don’t know what would.

        None of which is relevant to the question posed – historical writings that right to keep and bear arms was limited to times when the government gave a person permission. By historical times – prior to ratification of the constitution , and up to the time of ratification of the bill or rights.

        1. Here’s a challenging notion: The US Congress had no power to make law prior to the ratification of the Constitution, in that it did not exist yet. Since it did not exist yet, there was no writing on the subject of what power(s) it had or what limits to scope or range might exist.

          1. James Pollock
            May.3.2021 at 11:48 am
            “Here’s a challenging notion: The US Congress had no power to make law prior to the ratification of the Constitution, in that it did not exist yet. Since it did not exist yet, there was no writing on the subject of what power(s) it had or what limits to scope or range might exist.”

            Pollock – are you that unfamiliar with how the Bill of Rights were ratified. Both the House of Representatives and the Senate debated the 12 proposed amendments before they were voted on and before they were sent to the states for ratification.

            Again you cant provide a any citation for any historical writings that 2a was intended to limit the right to keep and bear arms to when serving in a militia – Simply because there is none.

            1. You’re going to lecture me on understanding history when you aren’t even clear on the difference between “before the Constitution was ratified” and “after the Constitution was ratified”???!?

              1. Pollock – are you incapable of answering the original question.

                1. It seems you’re incapable of reading where I did.

    2. “Can someone point to any historical writings that either
      a) limited the right to keep and bear arms to when serving in a militia”

      http://www.usconstitution.net

      1. Pollock –

        1)You link cites nothing to show that there were historical writings limiting the right to keep and bear arms to when serving in a militia. Nothing in 2A has language limiting the right to keep and bear arms when serving in a militia. but you already knew that
        2) if there were any historical writings limiting the right to keep and bear arms , then there would have been historical writings both pro and con – but there were none.
        3) an amendment which not only limits the peoples right but expands the federal governments power is inconsistent with the other 9 amendments which were there to protect the peoples rights and to limit the power of the federal government.

        1. My link contains the full text of a historical document.
          I’m sorry you were unable to read it. It’s written in English.

          1. pollock

            show the link where there is a verb, the adverb, the adjective or any other word or phrase that would show there was historical writing that 2A was intented to limit the right to keep and bear arms to only when serving in some form of militia.

            Your link does not provide a source for such a limitation

          2. pollock

            show the link where there is a verb, the adverb, the adjective or any other word or phrase that would show there was historical writing that 2A was intented to limit the right to keep and bear arms to only when serving in some form of militia.

            Your link does not provide a source for such a limitation

            pollock comment – “My link contains the full text of a historical document.”
            You link only has the constitution and the amendments. As you are fully aware of, 2a does not include any limiting language on the right to keep and bear arms. Can you provide a link to any other historical writings that even suggested 2a limited the right to keep and bear arms to only times when serving in a militia.

            1. Please point to where I said anything about the second amendment? Pretty sure that’s you.
              For the slow, the Constitution became the source of law in 1789. In 1791 it was amended to prohibit disarming the militia. From this, a person of average intelligence can determine that prior to amendment, disarming the militia would have been something Congress had power to do.
              It’s not that you’re stupid, it’s that you’re VERY stupid.

              1. pollock – for the slower – the constitution became law in july 1788 when new hampshire became the 9th state to ratify the constitution, not 1789.

                For the even slower -“In 1791 it was amended to prohibit disarming the militia.”
                Which one of the first 10 amendments did that – certainly nothing in 2A contains such language.

                For the record – you might try to actually respond to original statement.

                1. For the record, I did. You just don’t like the answer.

                  1. Sorry Pollock – Tom asked the rhetorical question – What historical writing supported the argument that the Right to keep and bear arms was limited to time of serving in a militia?

                    None of your responses addressed that question – You then made numerous incorrect statements regarding the ratification process of the constitution, the ratification process of BoR and the debate process all the while acting as if you had superior knowledge about the constitution (which you comments showed otherwise).

                    It takes a special kind of arrogance to make so many errors and to call other commentators stupid.

                    1. “None of your responses addressed that question”

                      Unless you count the link I gave to exactly what he asked for, a historical document that granted the federal government the authority to limit private possession of firearms. specifically, the original draft of the US Constitution, before it was amended to remove that authority (at least partially, subject to interpretation).

                      “You then made numerous incorrect statements regarding the ratification process of the constitution, the ratification process of BoR and the debate process”

                      Which you somehow failed to detail, almost as if you were unable to.

                      “It takes a special kind of arrogance to make so many errors and to call other commentators stupid.”

                      Didn’t stop you from chipping in your 2 cents, though.

  16. The left is really losing its mind over this, I don’t understand why.

    If we defund the police, restrict their powers, and/or curtail qualified immunity, this means that individuals will need to take more personal responsibility for their own protection as the police step back.

    “Bear arms” means just what it says, even Ginsburg conceded this: “‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” See Muscarello v. United States, 524 U. S.
    125 (1998)

    In all 50 states, self defense outside the home is a defense against homicide, although some states impose a duty to to retreat first (https://reason.com/volokh/2021/04/20/3-4-of-states-are-now-stand-your-ground-only-12-are-duty-to-retreat/).
    This has been the law since colonial days. The ability to defend oneself outside the home presupposes the tools to defend oneself.

    Police overreach and police brutality is a form of tyranny. The 2nd Amendment protects against tyranny, just not in the way most people think: It does not mean shoot the oppressors. The 2nd amendment provides the tools to individuals so that they are less reliant on the government (i.e. police) for protection.

    1. “The left is really losing its mind over this, I don’t understand why.”

      they were the last to start losing their minds. The firearms-enthusiast community has been jumping at shadow “gun grabbers” for quite some time now.

      “If we defund the police, restrict their powers, and/or curtail qualified immunity”

      You missed the point. We send police to respond to situations that aren’t really police matters, such as mental-health interventions, and they aren’t good at resolving them. “Defund the police” is shorthand for proposals to take those missions and assign them to a different team to deal with, and leave the police to deal with actual police duties. It does not mean and has never meant “set the police budget to 0”, except to right-wing panic mongers.

  17. The 2nd amendment provides the tools to individuals so that they are less reliant on the government (i.e. police) for protection.
    That’s new. Got a cite for that?

    And you added on the tag, at the end. When the 2cnd never mentions personal protection, does it?

    1. Its fairly clear if you follow Halbrook’s work that the 2nd amendment encompasses the right of self defense, which is much broader than simply the “right of self defense against the government.” For example, the PA constitution (and others including Vermont and Connecticut) stated from the early period “The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” or “Every citizen has a right to bear arms in defense of himself [or herself] and the state”

      “Defense of themselves” is much broader, and this phraseology is much more consistent with the common law right to self defense. Of course, some states left out the explicit “defense of themselves” part, and these states tended to be the southern pro slavery states. There was a concern that the right would be applied to slaves.

      1. The original Bill of Rights were not intended to place limits on the States. They’re limits on the powers of the federal government. Under the dual sovereign, they thought the States would protect the rights of citizens from infringement by the feds. After the Civil War, that idea was turned on its head, and it became the job of the federal government to protect the rights of the citizens from infringement by the states.

        1. Not quite. “They thought the States would protect the rights of citizens from infringement by the feds.”

          PA did not pass a bill of rights in 1776 to protect PA residents from “the feds” – it was to protect PA residents’ rights in general. State governments could not infringe those rights either.

          “After the Civil War, that idea was turned on its head” – The southern states did a really bad job protecting the rights of a certain subgroup, blacks. Someone had to step into the role, and it sure was not going to be the Southern Democrats in 1870.

          1. “PA did not pass a bill of rights in 1776 to protect PA residents from “the feds” – it was to protect PA residents’ rights in general. State governments could not infringe those rights either. ”

            I’d love to hear how a PA bill of rights protected jack sheet outside of PA. (and I have my doubts about INSIDE PA, for that matter).

  18. “James Pollock
    May.3.2021 at 11:41 am
    The original Bill of Rights were not intended to place limits on the States. They’re limits on the powers of the federal government.”

    Which makes the argument that 2A limited the peoples right to keep and bear arms to only times when the government gave the people permission when serving in a militia so contradictory and absurd.

    1. “Which makes the argument that 2A limited the peoples right to keep and bear arms to only times when the government gave the people permission when serving in a militia so contradictory and absurd.”

      If that’s the conclusion you want badly enough to reach, you can get there every time. But not strongly enough to persuade people who don’t share your monomania.

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