Second Amendment

Second Amendment professors brief in Supreme Court right to bear arms case

American and English historical precedents show a robust individual right

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On November 3, the U.S. Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. Bruen. The case will decide whether the Second Amendment right to "bear arms" is an actual right. Or conversely, if law-abiding adults who pass a biometric background check and safety training can be denied a concealed carry permit simply because permitting officials only issue concealed carry permits when they feel that the applicant has a special need. The Supreme Court's docket page for the case shows about three dozen amicus briefs filed on each side. In the next several weeks, I will write about some of those briefs. I'll start with the amicus brief that I co-authored with George Mocsary (U. of Wyoming law school) and Joseph Greenlee (Firearms Policy Foundation).

The amici are law professors who teach and/or write on the Second Amendment, namely VC writers Randy Barnett (Georgetown) and Eugene Volokh (UCLA), plus Royce Barondes (Missouri), Nicholas Johnson (Fordham), Donald Kilmer (Lincoln), Michael O'Shea (Oklahoma City), Joseph Olson (Mitchell Hamline, emeritus), and Glenn Reynolds (Tennessee). Also joining the brief are Weld County, Colorado; Weld County Sheriff Steve Reams, the Independence Institute (the Denver think, where I am research director), and the Firearms Policy Foundation. Our brief focuses on legal history, particularly in the Founding Era and before. In this post, I will summarize parts of the brief, and, for some parts, provide additional background information.

Part I briefly looks at the text of the Second Amendment, which protects the right to "keep" arms and the right to "bear" arms. Rather than creating a hierarchy, the text protects both rights equally. Dictionaries cited in the Heller case—Thomas Sheridan (1796), Samuel Johnson (1773), and Noah Webster (1828, the first dictionary of American English)—all defined "bear" as to "carry" or "wear."

English history

Part II delves into English history. The first Englishmen to have a written guarantee of arms rights were the settlers of the Virginia Colony in 1607 and the New England Colony in 1620. Their royal charters gave them and all succeeding immigrants the perpetual right to import from the King's dominion's "the Goods, Chattels, Armour, Munition, and Furniture, needful to be used by them, for their said Apparel, Food, Defence or otherwise."

Back in England, there was no written right to arms until the 1689 English Bill of Rights: "That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law." Yet the same Parliament that enacted the English Bill of Rights declared the right to arms, and other provisions, to be "true, ancient and indubitable rights." Like Americans such as John Adams, the English believed the right of self-defense and the right to arms to be based in natural law.

At the time of the American Founding, English law was clear: "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game"—as Edward Christian wrote in his 1794 annotated edition of Blackstone. The 1689 English Bill of Rights had not changed the English rule that commoners could not hunt unless a noble gave them permission to hunt on the noble's land. The American colonies never had any class-based limits on hunting.

The English Bill of Rights aimed to rectify the past abuses of monarchs, including the despotic King James II, who was overthrown in 1688 partly because of attempt to disarm the English people and rule via the force of a standing army.

Persons who argue that Americans have no right to bear arms contend that the 1328 Statute of Northampton comprehensively prohibited arms carrying, that the 1328 statute was always interpreted as a prohibition, and that this prohibition was adopted in the American colonies and incorporated in the Second Amendment. One problem with this theory is English case law. As will be discussed below, in 1686, the King Bench's held in Knight's Case that the Statute of Northampton only applied to carrying "in malo animo" – that is, with evil intent or malice. Every known English case after 1686 (Knight's Case) and 1689 (Bill of Rights) follows this interpretation.

For example, in 1819, following civil unrest, Parliament had enacted a temporary statute against seditious armed assemblies in several counties. The law was upheld against a constitutional challenge because it did not violate the right to carry firearms for self-defense. According to the court: "A man has a clear right to protect himself when he is going singly or in a small party upon the road where he is travelling or going for the ordinary purposes of business" but not to carry arms in a manner "calculated to produce terror and alarm." Rex v. Dewhurst, 1 State Trials, N.S. 529, 601-02 (1820). Likewise, cases in the early twentieth century distinguished peaceable carry from terrorizing carry. King v. Smith, 2 Ir. Rep. 190, 204 (King's Bench 1914) (acting "in terrorem populi" [to the terror of the people] is an an "essential element" of the Statute of Northampton; merely carrying a revolver is not inherently terrifying); Rex v. Meade, 19 L. Times Rep. 540, 541 (1903) (right to peaceable carry does not include "firing a revolver in a public place, with the result that the public were frightened or terrorized").

Although the Statute of Northampton was only rarely seen in criminal prosecutions, it did remain on the books until formal repeal in 1967. The notion that it prohibited peaceable carry would have come as a surprise to the Parliament of 1870, which enacted a statute requiring a 10-shilling annual license from the post office to carry a firearm outside one's property. Postal clerks had no discretion to refuse a fee-paying applicant. Gun License Act, Act 33 & 34 Vict. c. 57 (1870).

What about English history before 1686? Persons who deny the existence of the right to bear arms—such as the Ninth Circuit en banc majority in the 2021 case Young v. State of Hawaii—offer a litany of citations, but these do not hold up under scrutiny. For example, in 1343, huge crowds were coming to London for the Feast of St. Thomas. The king ordered London hostelers to tell their guests not to carry arms in London. According to the Ninth Circuit, this shows that arms carry restrictions "permeated public life." To the contrary, the Feast of St. Thomas decree presumes that travelers will be carrying arms and will expect to continue carrying in London. The king ordered the hostelers to tell the visitors to pause their usual practices.

The Young majority claimed that a 1350 statute outlawed concealed carry. In fact, the statute declared the punishment for concealment when doing so in furtherance of murder, robbery, or kidnapping.

The first reported case on the Statute of Northampton, Chune v. Piott (1615) held that a sheriff could arrest someone whose arms carrying caused a breach of the peace, even if the breach did not occur in the presence of the sheriff. The Young majority chopped the quote and claimed that the sheriff could arrest even when the arms carrying did not cause a breach of the peace.

The sensational 1686 political trial of Knight's Case involved an Anglican nobleman who was at odds with the England King James II, a Catholic. Sir John Knight loved to assist in the enforcement of England's statutes against Catholics. As a result, some Irish Catholics living in the English town of Bristol began looking for him so they could kill him. One Sunday Knight attended worship at his hometown Anglican Church–St. Michael, in Bristol–and brought a defensive gun. For that act, he was prosecuted under the Statute of Northampton and acquitted by the jury. As the Chief Justice of the King's Bench explained, the Statute only prohibited carrying in malo animo, and the jury didn't think that Knight's peaceable defensive carry was with bad intent.

The theories of Patrick Charles

The modern writer who produced the most material arguing that there is no right to bear arms is Patrick Charles. The Ninth Circuit's Young v. Hawaii majority draws heavily on Charles's writing. Charles penned many articles claiming that Knight was acquitted because he was acting in government service—which was an express statutory exception to the Statute of Northampton. Indeed, Charles wrote that people who disagreed with his government service theory were "purporting a historical myth to advance a Second Amendment agenda." The Faces of the Second Amendment Outside the Home: History Versus Ahistorical Standards of Review, 60 Cleveland State L. Rev. 1, 30 (identifying Joyce Malcolm, David Hardy, Clayton Cramer, and me).

In Second Amendment scholarships the "Standard Model" (a phrase coined by Glenn Reynolds) is that the Second Amendment guarantees a strong but not unlimited right to individuals to possess and carry firearms, including for personal self-defense. Charles argues that there is no such right. In Charles' view, "The historical evidence is irrefutable despite the attempts of Standard Model writers who persistently claim otherwise." The Statute of Northampton by the Late Eighteenth Century: Clarifying The Intellectual Legacy, 16 Fordham Urban L.J. City Square 10, 27 (2013). For example, "Standard Model writers invoke Sir John Knight's Case to support their hasty reading, but the facts, history, and holding in that case only further undermine their claims." Id. at 16 n. 36 (case cite omitted). Charles here cited his Cleveland article, which he summarized as "showing Knight was acquitted because he fell under the government officer exception in the 1396 amendment to the Statute of Northampton"

Commendably, Charles later acknowledged he was mistaken. Brief of Amicus Curiae Patrick J. Charles in Support of Neither Party at 23 n.10, New York State Rifle & Pistol Ass'n v. City of New York, 140 S. Ct. 1525 (2020) (No. 18-280), 2019 WL 2173982 (". . . Knight was prosecuted under the Statute of Northampton for a later, separate instance in which government officials were not present.").

To understand why, you don't have to be an expert on English legal history. You just have to read the case report, which quotes the indictment, and alleges where the alleged crime took place: "St. Michael, in Bristol." St. Michael in Bristol was and is part of the Anglican Church—the established Church of England. Charles conflated the gun-carrying incident for which Knight was prosecuted (carrying at St. Michael) with an incident earlier in the year; then, Knight had helped some local Bristol officials break up a secret Catholic mass. Knight's Case was obviously not about that incident. Catholic Churches were illegal at the time, so Catholics attempting to hold a secret mass would not do so in public buildings. St. Michael was a very public building.

Knight's Case in Early America

Charles's new claim is that the Founders had no idea about Knight's Case, since the first reported American cite of Knight's Case (also known as Rex v. Knight) was the 1843 North Carolina State v. Huntley. Charles writes:

"Stop and think about that for a moment. How can anyone claim the Founding Fathers understood a case to be authoritative if it was never mentioned or appeared in American discourse from the time it was decided in 1686 to 1843? The answer—at least to historians— is the claim is a complete fabrication. And fabricated history is quite simply not history at all. It is fiction."

In response, the law professor amicus brief shows some of the ways that Americans learned the rule from Knight's Case. First, William Hawkins's Treatise of the Pleas of the Crown cited Knight's Case for the precise point that peaceable defensive carry of ordinary arms is lawful. Published in England in 1716, with eight editions through 1824, Hawkins was the leading criminal law treatise of the eighteenth century, and widely used in America. Hawkins's explanation that arms carrying was generally legal was cited by the Tennessee Supreme Court in 1833 (Simpson v. State), and by Justice of the Peace manuals in the Early Republic. William Waller Hening, The New Viriginia Justice 17-18 (1795); James Parker, Conductor Generalis; Or the Office, Duty and Authority of Justices of the Peace 11 (1st ed. 1764).

The trial of Sir John Knight was reported in volume 3 of Modern Law Reports and in the single volume of case reports by Roger Comberbach. George Wythe, America's first law professor, owned both of these books. A signer of the Declaration of Independence, Professor Wythe served in the Continental Congress and the Philadelphia Convention. Among his apprentices and students were Chief Justice John Marshall, Justice Bushrod Washington, President Thomas Jefferson, President James Monroe, and St. George Tucker (author of the preeminent constitutional law treatise of the Early Republic). Wythe bequeathed his books to Thomas Jefferson, who later sold them to form the Library of Congress.

American laws restricting bearing arms

Whatever the English Bill of Rights protected, it was not good enough for Americans. James Madison's notes for his speech introducing the Bill of Rights in Congress show that he regarded much of the English Bill of Rights as deficient, including the Protestants-only provision of the right to arms. St. George Tucker, William Rawle (author of an influential 1825 treatise on American constitutional law), and Joseph Story all denounced the English right to arms as feeble and as far inferior to the Second Amendment.

During the colonial and founding period, no colony or state forbade carrying arms. Only a few addressed the issue. Massachusetts in 1692 outlawed going "Armed Offensively." Likewise, New Hampshire in 1699 ordered justices of the peace to arrest "affrayers, rioters, disturbers or breakers of the peace, or any other who shall go armed offensively." Being armed "offensively" is the opposite of peaceable defensive carry.

After the suppression of Bacon's Rebellion in 1676, a Virginia statute noted that the previous legislature had enacted a law that "liberty is granted to all persons to carry their arms wheresoever they go." However, the new legislature prohibited unauthorized armed assemblies of five or more men. Thus, individuals or small groups had the unfettered right to carry.

The one colony that did restrict peaceable personal carry was East Jersey, which was was a separate colony from 1674 to 1702, and was adjacent to New York City. In 1686, East Jersey outlawed concealed carry of "any Pocket Pistol" (a pistol small enough to fit in a pocket). Further, any "Planter" was forbidden to "go Armed with Sword, Pistol, or Dagger." A "planter" is "One of those who settled new and uncultivated territory." Richard Lederer, American Colonial English 175 (1985). So East Jersey frontiersman could open carry long guns, but not handguns.

Whether the East Jersey carry law continued in force after the Jerseys were consolidated in 1712 is unclear. The New Jersey legislature did not seem to view statute of former East Jersey as having continuing force. When the legislature restricted concealed carry in 1905, it did so by enacting a licensing statute. Open carry of handguns and long guns was legal in New Jersey until 1966.

American law after the Second Amendment

As evidence of the Statute of Northampton's influence in America, the Young majority cites a 1792 North Carolina statute that supposedly copied the English statute verbatim, including text about "the King's servants." 992 F.3d at 778. Young cites "1792 N.C. Laws 60, 61 ch. 3," but the lengthier cite is Francois-Xavier Martin, A Collection of the Statutes of the Parliament of England in Force in the State of North Carolina 60-61(1792). The State of North Carolina later officially declared that the book "was utterly unworthy of the talents and industry of the distinguished compiler, omitting many statutes, always in force, and inserting many others, which never were, and never could have been in force, either in the Province, or in the State." Preface of the Commissioners of 1838, Revised Code of North Carolina xiii (1855).

The North Carolina Supreme Court determined that the Statute of Northampton had simply embodied the enduring common law rule against "riding or going about armed with unusual and dangerous weapons, to the terror of the people." State v. Huntly, 25 N.C. 418, 420 (1843). The Court then set forth the common law offense:

"[T]he carrying of a gun per se constitutes no offence. For any lawful purpose . . . the citizen is at perfect liberty to carry his gun. It is the wicked purpose—and the mischievous result—which essentially constitute the crime. He shall not carry about this or any other weapon of death to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people."

Id. at 423-24. This paragraph authoritatively describes the Statute of Northampton's meaning in America.

Arms carry mandates

It is recognized that almost all the American colonies required males and sometimes females to carry arms outside of militia settings. Mandates included carrying to church, court, public assemblies, travel, and work in the field. The mandates cast down on the notions of the Young court and Patrick Charles that Americans were inherently terrified by the sight of someone carrying a firearm.

Young's takeaway from all the carry mandates was that "the colonies assumed that they had the power to regulate—whether through mandates or prohibitions—the public carrying of arms." 992 F.3d at 796. Because colonies could require arms carrying, colonies could ban arms carrying. Non sequiter. Some colonies also required church attendance. The church attendance mandates do not mean that colonial governments or the people ever thought that colonies could forbid church attendance.

According to Young, the carry mandates "were tied to the overarching duty to bear arms in defense of the community, and it was the role of local government, not individuals, to decide when that duty justified or mandated public carry." Likewise, "the public carrying of arms was always subject to conditions prescribed by the legislature." Young, 992 F.3d at 796.

However, as a threshold matter, it was not always government that decided who could carry. Some statutes forbade carry by slaves unless their masters issued them licenses. See, e.g., 1715 Md. Laws 117 ("no negro or other slave within this province shall be permitted to carry any gun, or any other offensive weapon, from off their master's land, without licence from their said master"); 1797 Del. Laws 104 (no "Negro or Mulatto slave shall presume to carry any guns, swords, pistols, fowling pieces, clubs, or other arms and weapons whatsoever, without his master's special license for the same"). It is implausible that people could grant permission for slaves to carry but could not carry themselves.

Moreover, both the Founders and the founding citizenry at large voluntarily carried arms routinely for defense and sport. Our amicus brief cites examples from John Adams, Patrick Henry, Daniel Boone, Meriwether Lewis, Thomas Jefferson, James Monroe, Ira and Ethan Allen, Joseph Warren, William Drayton, and the general population—with examples having nothing to do with any carry mandate.

Peaceable carry in America being universally recognized as lawful, criminal justice officer manuals from early America did not contain instructions to arrest people for peaceably carrying arms. See Isaac Goodwin, New England Sheriff (1830); Charles Hartshorn, New England Sheriff (1844); John Niles, The Connecticut Civil Officer (1823); John Latrobe, The Justices' Practice Under the Laws of Maryland (1826); Henry Potter, The Office and Duty of a Justice of the Peace…According to the Laws of North Carolina (1816).

The Heller case cited five antebellum state supreme court cases concealed carry laws. Only one of them asserted that concealed carry was outside the right to bear arms. The main line of the cases indicate that concealed carry can be banned as long as open carry is allowed. Or vice versa. Because New York State prohibits open carry, the statutory system of concealed carry licensing may not be misused so as to prohibit the vast majority of law-abiding, trained adults from obtaining a carry permit.

NEXT: Fifth Circuit on Amicus Briefs by Retired Federal Judges

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  1. It’s really a shame that the people who wrote and ratified the 2nd Amendment hadn’t read this post; they never would have bothered with that nonsense about a “well regulated militia.” Clearly they didn’t understand what the Founders wanted.

    This post could be the best single example of why no one takes lawyers seriously as scholars. The profession is based on a complete lack of intellectual honesty.

    1. It’s really a shame that the people who wrote and ratified the 2nd Amendment hadn’t read this post; they never would have bothered with that nonsense about a “well regulated militia.” Clearly they didn’t understand what the Founders wanted.

      What a novel and profoundly brilliant argument that has never before been trotted out and then shown to be the product of illiteracy and/or fundamental dishonesty that it is.

      This post could be the best single example of why no one takes lawyers seriously as scholars. The profession is based on a complete lack of intellectual honesty.

      Pot…something…kettle….something, something….

    2. It’s a real shame you’ve never read the contemporary commentary on the amendment, which makes clear that people didn’t have any trouble understanding it.

      1. It’s strange how the Framers protected the RKBA only for the unorganized militia living in DC and federal territories…apparently they were the only Americans living in a “free state”. 😉

        1. If only someone had gone to the trouble to point to state-level protections for similar rights before the 19th century! (Oh, right, Kopel did. In this very post.)

          None of the Bill of Rights was incorporated against states until the Fourteenth Amendment. That doesn’t mean the states were unfree, only that they were expected to identify and respect the rights of their citizens without needing the federal government to tell them to.

          1. Michael P, what do you suppose state protections for self-defense gun rights have to do with proving federal constitutional rights to guns for self-defense? The point that various states protected such rights in various ways is not evidence at all that the federal Constitution did so.

            The case that the Constitution protected a right to guns for militia service is copiously supported in the historical record. It is an easy case to make. By contrast there is all but zero historically legitimate support for a federal right to guns for self-defense.

            Your argument about state protection is in fact better read as a point against a federal right than otherwise. Many pro-gun commenters think the contrary, because they have read Heller, and been misled by the simulacrum of historical analysis which Scalia attempted. What Scalia actually proved was that he knew nothing about legitimate methods used in historical analysis. He committed methodological howlers that would have flunked him out of any graduate history seminar.

            Rather than go into a lengthy analysis of Scalia’s problems doing history, I will mention just one point which ought to make the case. If there was indeed an intention to create a federal right to self-defense at the time the Constitution and Bill of Rights were drafted, there ought to be some explicit mention of that intention somewhere in the historical record. Look at Heller and see if you can find it. If any such citation were available, it would have been the lynch-pin of Heller—the most prominently featured and thoroughly discussed reference in the case. It is not there. Not a trace. Pro-gun advocates have been ransacking the historical record for years, trying to turn that evidence up, and never found it.

            Instead, Scalia offered a parade of misshapen arguments apparently drawn from history, but done so in utter disregard of the conventions of historical analysis. Events and documents from different times (including even subsequent times) and far away places are introduced as evidence of the founders’ intentions—without the slightest showing that the founders were even aware of those. Or if assuming they were aware, without any showing that the founders approved them as appropriate for a federal constitution, rather than rejecting them as unwanted complications and threats to ratification. There is zero reason to suppose as a matter of history that what the founders thought was appropriate for the Pennsylvania state constitution, for instance, was equally appropriate, or appropriate at all for a federal constitution. If the founders did intend to use state laws and constitutions as models, which would they have chosen among the differing examples?

            The fact that some state constitutions were explicit about personal self-defense, combined with the lack of such explicit citation in the federal constitution, might reasonably be taken as cause to search for some explanation of the absence. Unfortunately, for that we are left to speculate. The record does not answer.

            One thing we do know is that throughout the drafting process, the founders discarded controversial provisions when they could not come to agreement on how to deal with them. They wanted no active controversies when it came time to ratify.

            It is entirely plausible that in a nation which already struggled with political rivalry over the question of slavery, there would be controversy over any provision which purported to grant a federal right to anyone to own a gun to defend himself. Slaves included? It is impossible to imagine slave-state delegates agreeing to include any such provision. They were already actively on the alert to defend at every turn any threats to their interests from would-be abolitionists.

            My guess is that point was so obvious to everyone, that it never came up for discussion, an omission which created the hole in the historical record which has so frustrated gun advocates. The delegates would have been happy to bypass that controversy, and content themselves with knowing that each state could deal with the question of arms for self-defense according to its own estimate of particular needs, with results differing among the states.

            That is all speculation—of a kind that is not normally acceptable in academic history. It’s one justification is that it is speculation entirely consistent with what actually is to be found in the historical record, and the argument to the contrary is not.

            1. The case that the Constitution protected a right to guns for militia service is copiously supported in the historical record.

              No, it isn’t.

              It is an easy case to make.

              So sayeth the many, many voices in your head.

              By contrast there is all but zero historically legitimate support for a federal right to guns for self-defense.

              And by “historically legitimate” you mean “stuff I haven’t chosen to ignore”.

        2. However did the army and navy manage to survive without weapons all these years?

        3. It’s strange how you can’t read and understand plain English, and somehow imagine into texts things that simply aren’t there.

          1. So initially who did the 2A protect?? Why was McDonald necessary if the 2A initially protected an individual right in light of “militia” referring to the “unorganized militia” AND “free state” referring to “free country”.

            1. Sebastian – you are misunderstanding the bill of Rights and incorporation.

              The Federal Bill or Rights protected the rights of all individuals in all states against actions of the federal government. The Bill of rights was not limited to the federal territories or the district of columbia.

              14A and mcdonald held that the bill of rights was incorporated against the actions of state governments.

              There is a separate question of whether the bill of rights applied against the actions of both the federal government and state governments at ratification. Ie barron v baltimore was wrongly decided. See Thomas concurring opinion in McDonald. (But that is a separate issue from your misinterpreation of the Bill of Rights which you repetitively misstate.

            2. Initially, the 2A protected the general public.

              McDonald v. City of Chicago was necessary because the City of Chicago was infringing the rights guaranteed by the Second Amendment.

              1. Initially, the 2A protected the general public.

                Well, it ALSO protected the States.

                W/o the 14A the Feds would have had nothing proper to say about Chicago, it being up to IL to protect any gun rights guaranteed by ITS Constitution.

                “Initially” suggests that SC is remarkably uninformed about the 14A.

              2. The 1A specifically states “Congress”…but the 2A just states that the “RKBA shall not be infringed”. So everyone believes that upon ratification Congress could not infringe the RKBA…the problem is the preamble says a properly trained unorganized militia (which is essentially everyone) is necessary to the security of a free country. The problem is the states started infringing the RKBA relatively quickly. So if the states could infringe the RKBA that means the unorganized militia was being undermined and so the people in the states did NOT live in a free country. And so pursuant the 2A citizens in states that infringed the RKBA were not living in a free country. Or in the alternative one could believe that the 2A upon ratification prevented states from infringing the 2A but then McDonald is unnecessary because the 2A never needed to be incorporated.

                1. Your logic is just as bad as saying that atheists must not have rights because “all men […] are endowed by their Creator with certain unalienable Rights” is talking about a deity.

                  1. Uh nope, people in the states had their RKBA infringed for over two centuries…that happened. How did America get it so wrong for over two centuries?? Why was it necessary for a man with an over 200 IQ to focus his brain power on the 2A and explain to everyone what it actually means over 200 years after the amendment was ratified??

                2. The preamble to the Bill of Rights itself blows your disingenuous bullshit argument out of the water.

                  https://drexel.edu/ogcr/resources/constitution/amendments/preamble/

                  “THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”

                  The second amendment IS NOT a restriction on the rights of the people. It IS a restriction on the powers of the government.

    3. As opposed to your ilk who think the Second Amendment was the one oddball amendment in the entire batch which was only there to give the government the right to keep and bear arms, otherwise the army and navy, which were expressly authorized, would have had no weapons.

      1. The 2A isn’t an oddball—several other amendments are federalism provisions. So the amendment protects the states from the federal government.

        1. Oh ho! Now the purpose of the Second Amendment becomes clear! It is so the states can raise their own armies and navies to fight the feds. Jefferson Davis is rolling over in his grave now that he’s been vindicated.

          1. Jefferson Davis armed the CSA Army in part with weapons from state militias…so the 2A worked as planned because from Davis’ perspective Lincoln was a tyrant. The 2A was designed to prevent tyranny and the fact Davis organized an army and did not rely on the unorganized militia to combat tyranny undermines the notion the word “militia” in the 2A refers to the “unorganized militia”…because the unorganized militia did not come to the rescue when tyranny reared its ugly gaunt horse face in 1861.

        2. So the amendment protects the states from the federal government.

          Except that ever since the Militia Act of 1903, the state militias are pretty much required to do whatever the feds want them to do. If the Second Amendment protects the state militias from the federal government, it does a pretty bad job of it. (See also Perpich v. Dep’t of Defense, 496 U.S. 334 (1990).)

          1. Meaningless, because the Constitution requires an amendment to be changed. So pursuant the Constitution the states appoint militia officers and we know from the Civil War that even federal military officers were loyal to their states over the federal government…and so long as the states appoint officers the several state militias will remain loyal to the states AND the federal government can’t pull a Lexington and Concord and disarm the state militias.

            1. So the Second Amendment isn’t a nullity because it preserves the ability of the state militias to defend secessionist state governments? Somehow that doesn’t sound right to me.

              1. If the federal government understands the states have armed militias at their disposal it will tread more carefully.

        3. So the amendment protects the states from the federal government.

          Then why does it say, “the right of the people to keep and bear arms” rather than “the right of the states to form militias” (or something along those lines)?

          1. It protects the states derivatively, by protecting the armed population from which the state would raise a militia.

      2. Well some would argue, Merrick Garland among them, that the 2nd Amendment is part of a consistent framework to protect government from the people. “The right of the people“ is a term of art referring to the government’s rights.

        In the 1st Amendment “the right of the people to peaceably assemble” is a collective right of government to organize mass rallies, so the people can show their support for government policies. The 4th Amendment also uses the same term of art giving government officials immunity from investigations into “their persons, houses, papers, and effects, against unreasonable (any) searches and seizures”.

        So clearly the 2nd amendment can’t mean anything other than the government can have guns but people can’t.

        1. “The right of the people“ is a term of art referring to the government’s rights.

          Kazinski, you could not be more mistaken. You are mistaken in terms of present understanding, and more grievously mistaken in terms of original understanding.

          “The people,” refers to, “We the People,” the American collective sovereign, and not at all to the government. The sovereign people are superior to government, and supervise government. Government has limited powers because the people decree limits, and enforce them.

          Citizens have rights they can enforce against government, because the sovereign people decreed that citizens should have them, and because the people wield power greater than government’s power, and superior to government’s power. The sovereign people’s power is the power which vindicates citizens’ rights. It would be absurd to suppose that government is at once the principal threat to citizen’s rights—which is undeniably true—and also the only resource to which citizens could turn to get redress—which is flagrant nonsense.

            1. Since Lanthrop missed Katz’s sarc
              He is certainly going miss your sarc

              1. Nope, I noticed both. Problem is, Kazinski deserved the challenge I gave him anyway. And plenty of bystanders on this blog need those points repeated.

          1. Poe’s Law, Mr Lathrop.
            POE’S LAW

          2. Oh, I see. The “sovereign people” has the right to keep and bear arms. And if the sovereign people, acting through their government, chooses to exercise that right by dictating that cops and soldiers, and no one else, can keep or bear arms, that’s a legitimate exercise of its Second Amendment rights. I am intrigued by your ideas and would like to subscribe to your newsletter.

            1. Seamus, I get that you meant to attempt sarcasm. Nevertheless, you approached the truth, but did not arrive at it.

              What you miss is that the Constitution, including the 2A, does not in any way constrain the sovereign People. The sovereign doesn’t need authorization from the Constitution, for anything; the sovereign decreed the Constitution. The same power that enabled that decree enables also complete freedom for the sovereign to disregard what it says, to change the Constitution at pleasure, to throw it out and start over, or to change its meaning by any means the sovereign can manage, without the slightest regard for what the Constitution says about amendments, or anything else.

              That is what it means to be sovereign. The sovereign controls the government. The government does not control the sovereign. The sovereign acts at pleasure. The government acts under constraint. That is how American constitutionalism works, and how the founders intended it to work.

              We know all that because we can find it supported in the historical record. What I wrote above is a paraphrase off the top of my head of remarks by founder James Wilson, who wrote on the subject of sovereignty. Even that bit at the top, about approaching the truth, but not arriving, I lifted from Wilson, who used it just before saying the other stuff I just told you.

              1. “The same power that enabled that decree enables also complete freedom for the sovereign to disregard what it says…”

                Well, sure, as a practical matter the mob can violate the law, even as it exists at the time, e.g. when the Klan lynched people.

                And the government can be mistaken about the law for long periods, e.g. interning the Japanese, banning interracial marriage, or D.C.’s pre-Heller gun ban. Or it can ignore existing law just like the Klan can.

                I don’t view those things as good things, though. I don’t like mob rule.

    4. I realize we can’t trust today’s politicized court to faithfully follow the constitution, but in 1939 the Supreme Court in Miller, while upholding the NFA’s prohibition on short barreled shotguns clearly laid out that the purpose of the prefatory clause of the 2nd amendment was not to restrict the 2nd amendments guarantee of the right to keep and bear arms, but to lay out the reasoning why the Federal government had the responsibility to prevent the states from restricting that right.

      The militia clause in Article 1 gives Congress the responsibility of training and arming the militia. As the Miller Court points out the militia, any able bodied male 17 or older, was expected to turn out bearing their own weapons suitable for use in the militia.

      Miller is still good law and Scalia in Heller was very careful not to contradict Miller’s holding, in fact that’s where he sourced the determination that arms in common use were protected by the 2nd Amendment.

      1. “and Scalia in Heller was very careful not to contradict Miller’s holding”

        I suppose misrepresenting isn’t quite the same as contradicting. Miller held that the 2nd amendment protected the right of citizens to keep and bear arms suitable for military purposes. Miller’s ownership of a sawn off shotgun wasn’t protected because the Court was not put on notice (due to it being a trial in abstensia) that it was a military arm. “Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.”

        Scalia transforms this into “Miller’s holding that the sorts of weapons protected are those “in common use at the time””, totally deleting the Miller Court’s reference to military equipment.

        Of course, at the time the Miller Court ruled, “weapons in common use” had not diverged from “ordinary military equipment”, because the gun control movement was just getting started. An American citizen could lawfully own any firearm a soldier might be issued, and probably would, because it was one market in indistinguishable firearms.

        It took nearly 80 years of the federal courts standing the Miller decision’s central holding on its head, and the Supreme court refusing every petition for certiorari that raised the 2nd amendment as an issue, for civilian and military arms to diverge, and they only diverged because of the sorts of laws the Miller Court held would be unconstitutional!

        It’s as though the Brown Court had held racial segregation constitutionally permitted, pointing to Jim Crow as proof…

  2. ” The case will decide whether the Second Amendment right to “bear arms” is an actual right. ”

    It’s stuff like this that inclines strong law schools to resist hiring movement conservatives (and to regret hiring the ones they already are stuck with).

    1. Yeah, Art, everyone should be like you and believe that we don’t have any civil rights at all beyond doing what we’re told.

      1. This White, male, movement conservative blog has taught me that John Wayne, when he collected guns along the town’s streets for safekeeping until the yahoos left town, was a godless, America-hating commie.

        The backlash against right-wing gun nuttery — the gun nuts hitched their cause to the wrong side of the culture war, which will have predictable consequences — is likely to be severe. I hope the right to possess a reasonable firearm for self-defense in the home survives, but if it doesn’t the gun absolutists will have only themselves to blame.

        1. Such a bullshit artist.
          Do you actually believe your shit, or do you post for comedic content?

        2. Well Rev there is only one right end of the gun.

    2. ^^^^^^^^^^^^^^^^^^^^^^^^
      Waste of brain cells warning
      ^^^^^^^^^^^^^^^^^^^^^^^^
      Kookland is performing his weird trick of “footnoting” his assertions with a music video. I didn’t follow it, but hovering over it shows “youtube”. So there’s no need to click on it.
      ^^^^^^^^^^^^^^^^^^^^^^^^

      1. I’m not going to unmute him just to check, but not everything on YouTube is a music video. There are videos of political speeches, lectures, news reports, product demonstrations and all kinds of other stuff.

        1. I unmuted him just to check. It’s a music video, “Stuck in the middle with you”. Then I muted him again.

          Gotta say, half the gains from muting Kirkland are being eaten up by Gandydancer recapping the comments I’ve muted…

  3. Ipso facto—Cruikshank should have been incorporated.

    1. I get it now, it took me a while, parody account, right?

      1. 2A is a federalism provision…but Americans still have a RKBA. Stevens’ McDonald dissent provides a path to get to a RKBA without using the 2A…but the justices in Cruikshank understood all Americans had the RKBA but prior to incorporation they didn’t believe there was anything federal judges could do about it.

  4. Since members of well-revulated militias carry arms openly, there is no constitutional right to carry a concealed weapon. Any claim to such a rigbt is completely divorced from constitutional text.

    1. The unorganized militia refers to organizations like the KKK and Black Panthers that carry arms both openly and concealed.

      1. no it doesnt – and it takes delusion reasoning to believe that

    2. “Since members of well-revulated militias carry arms openly”

      Going to need a cite for this.

  5. Here is the copied and pasted question presented in NYSRPA v. Bruen.

    “GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER THE STATE’S DENIAL OF PETITIONERS’ APPLICATIONS FOR CONCEALED-CARRY LICENSES FOR SELF-DEFENSE VIOLATED THE SECOND AMENDMENT.”

    Fun fact. Nowhere in the NYSRPA brief on the merits do the lawyers argue that the denial of the petitioners’ applications for concealed-carry licenses violated the Second Amendment.

    Probably because it is one thing to tell the great unwashed morons that concealed carry is a right protected by the Second Amendment but another thing to tell the justices that in the only two Second Amendment cases decided on the merits by them when all nine justices said that prohibitions on concealed carry do not violate the Second Amendment, they really said the exact opposite.

    That and because it is impossible to make the case that the people who wrote and voted to enact the Second and Fourteenth Amendments believed that the Second Amendment protected the vile and evil act of concealed carry.

    1. An interesting point.

      However, if we accept the following assertions in the Cert Petition:

      “New York has “a general prohibition on the
      possession of ‘firearms’ absent a license.” Kachalsky,
      701 F.3d at 85 (citing N.Y. Penal Law §§265.01-
      265.04, 265.20(a)(3)). Under New York’s framework,
      4
      the only way to lawfully possess a firearm—regardless
      of whether one wishes to keep it inside the home or
      bear it outside the home—is by obtaining a license
      pursuant to N.Y. Penal Law §400.00. Licenses are
      issued by “licensing officer[s]”—typically judges or law
      enforcement officers—and “[n]o license shall be issued
      or renewed” unless the licensing officer determines
      that the applicant, among other things, is of good
      moral character and lacks a history of crime or mental
      illness, and that “no good cause exists for the denial of
      the license.” N.Y. Penal Law §400.00(1)(a)-(n).
      New York bans the open carry of handguns
      entirely. Kachalsky, 701 F.3d at 86. And while New
      York permits concealed carry of a handgun with a
      license, the state makes it virtually impossible for the
      ordinary law-abiding citizen to obtain a license.”

      then perhaps SCOTUS was by its grant signalling an intended limited disposition.

      Yet, if Open Carry is prohibited, then only Concealed Carry, if approved, is available. Thus, a denial of a Concealed Carry license would implicate the 2A as all bearing would be illegal. Further, SCOTUS can of course only dispose of actual cases and controversies, and this case involves denial of Concealed Carry licenses.

      1. If concealed carry is not a right protected by the Second Amendment, as the Supreme Court said in both the Heller and McDonald opinions then how does banning the right protected by the Second Amendment, Open Carry, create a right to possess, use, and carry heroin?

        Your logic is that the banning of something which is a right creates a right to something which is not a right.

        When the government infringes a right, file a lawsuit seeking to enjoin the enforcement of that infringment. Because filing a lawsuit, as the NRA has done in California (three times) arguing that it is constitutional to ban the constitutionally protected manner of carrying arms (Open Carry) in favor of a manner which is not protected (concealed carry) is a Soviet Union era double-speak that is disastrous.

        An often overlooked citation from Kachalsky:

        “Notably, Chandler and Reid conflict with Plaintiffs’ position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained: Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 90 n.13 (2d Cir. 2012)

        1. The Second Amendment does not protect a specific right to open carry. It protects a right to keep and bear arms. They might be borne openly, or they might be concealed — a state could conceivably strongly regulate either one of those options, but then they must leave the other very loosely regulated.

          1. Michael P, where in the NRA’s brief on the merits in NYSRPA do they argue that the Second Amendment allows states to “strongly regulate” (ban) Open Carry in favor of concealed carry? More to the point, where is your Amicus brief filed in NYRSRPA v. Bruen in support of your inebriated position that they can?

            I ask because your opinion and 50 cents won’t buy a cup of coffee whereas my opinion is the same as the Heller and McDonald (and Baldwin) opinions. Namely, that Open Carry is the right guaranteed by the Constitution, and concealed carry is not a right.

          2. No, I’d say the Second amendment does protect a specific right to open carry. It’s the judiciary that don’t protect it.

    2. Here’s a direct quote from NYSRPA’s merit brief:
      “New York’s denial of petitioners’ applications for licenses to carry handguns for self-defense plainly violated their rights under the Second Amendment.”
      What’s that? Oh, that quote doesn’t say application to carry a concealed handgun? Let’s have another quote:
      “To carry a firearm outside the home, New York provides members of the general public with a single option: obtain a license to “have and carry” a “pistol or revolver … concealed.” Id. §400.00(2)(f).”
      So, petitioners applied for an unrestricted license to carry a concealed handgun and petitioners explicitly argue that the denial of their application violated their rights under the Second Amendment.
      In other words, you’re wrong.

      1. Perry Noyed, merely saying that one’s rights have been violated is not the same thing as making the legal argument as to why one’s rights have been violated.

        For that matter, simply saying that one’s rights have been violated doesn’t even satisfy the low threshold of notice pleading required by a Complaint.

        I would fault the lawyers who write for the Volokh Conspiracy for not explaining this to their simpleton followers but many of “The Conspirators” are Amici in the brief Kopel is bloviating about.

        Which pretty much means that you will forever be in the dark.

        1. You’re actually stating NYSRPA’s brief does not make the legal argument that petitioners’ rights were violated. Okay, let’s break it down for you.
          1. The Second Amendment Protects The Right To Carry Arms Outside The Home For Self-Defense. That conclusion is compelled by the constitutional text : “The people” have the right not just to “keep” arms, but to “bear” them for self-defense. Merits Brief at pp. 25 et seq.
          2. New York allows only one type of carriage in public, concealed. Merits Brief at pp. 15-16.
          3. New York requires a license to carry a concealed handgun in public. Merits Brief at pp. 15-16.
          4. NYS denied petitioners’ application for an unrestricted license to carry concealed handguns because they did not establish a greater need to carry than the general population. Merits Brief at pp. 18-20.
          5. Because “the [Second] Amendment is for law-abiding citizens as a rule, … it must secure gun access at least for each typical
          member of that class.” Merits Brief at p. 41.
          6. Petitioners are typical law-abiding citizens. Merits Brief at pp. 18, 43.
          7. By denying petitioners any outlet to exercise their constitutionally protected right to carry arms for self-defense and criminalizing the exercise of a fundamental right, New York’s
          approach is fundamentally incompatible with the Second Amendment. Merits Brief at p. 40.

          That’s a complete argument. The right exists for people like petitioners. NYS violates the right by prohibiting petitioners from exercising the right.

          It’s the same framework you use in your pending appeal regarding open carriage:
          III. The Second Amendment Right Extends Beyond the Interior of One’s Home.
          IV. The Prohibitions and Restrictions on Licenses to Openly Carry a
          Firearm Violate The Federal Constitution
          So, unless you are going to criticize yourself in the same terms you use to criticize Paul Clement, then the petitioners’ brief does make the legal argument why petitioners’ rights have been violated.

          1. Perry Noyed, it seems that you are incapable of understanding the difference between the question presented in the NYSRPA cert petition and the question presented the justices granted cert on.

            The two questions are very different. If they were the same question then the justices would not have rewritten the question.

            Arguing in support of the question presented and rejected by the Justices is not the same same as arguing that there is a right to concealed carry.

            And let us not forget SCOTUS Rules 24 and 14 which limits the scope of the case to the question presented. I suspect that Justices Breyer, Kagan, and Sotomayor haven’t forgotten and will be sure to remind their fellow justices that the question presented is not whether or not there is a right to carry a handgun in public. The question presented is whether or not the denial of the petitioners’ applications for [unrestricted] concealed carry licenses violated the Second Amendment.

            1. Charles:

              It appears we speak different languages. You have my sincere wishes for a favorable outcome with your appeal.

              1. Perry Noyed, thanks, I guess. But your 7 point argument is mostly a statement of facts and to the extent there is an argument to be found there, it is a facial argument, not an as-applied to the petitioners’ argument.

                If the justices follow their own rules then they are deaf to anything other than the question presented, which in NYSRPA v. Bruen is an as-applied concealed carry question, not a facial handgun carry question.

  6. the language of the 2nd Amendment is so clear and unequivocal only a lawyer would say it doesn’t mean what it says, and only another lawyer would require case history going back to 1328 to prove it actually does say what it says…

    ” the right of the people to keep and bear Arms, shall not be infringed.”

    clear, unambiguous, the first part carries no legal weight, the quote above carries all the legal weight.

    they’ve been trying to get rid of it for 200 years, they can’t, because everyone understands what it means, they can’t twist it around and make it mean something else, but God bless their hearts, they try and try and try.

    1. Agreed, the silly and incomplete explanation is, like the extraneous comma, just bad drafting.

      Another generation of pols screwed up the 14A by using “jurisdiction” in two separate ways, explicating the unusual one only in the debate about adding the Citizenship Clause to the first version of the 14A text. It took only until WKA for SCOTUS to get it completely wrong as a result,

      Nowadays there is Section 230’s “intellectual property” sentence which, it appears has been converted into an “exception” completely contrary to original intent and unsupported by the text.

      Etc, etc, etc.

      1. virtually every discussion pre ratification was about the right to keep arms for defense and the right to have a common defense of the community. So it was natural to combine the the two rights into one sentence.

        Stevens was dishonest (extremely dishonest ) when he claimed that there wasnt any discussion in the historical writings that discussed the individual right.

        1. IIRC, Stevens’ main source was Saul Cornell, which both demonstrated and guaranteed dishonesty on Stevens’ part.

      2. rules that protect us from them, they hate those, call them “negative rights”

        b.s. on that

  7. Somewhere in time, each of us has at least one ancestor who carried their weapons without a single permission slip, because there was no government to say otherwise. A historical fact far longer practiced than any law.

    The real shame is that adults pretend to have authority over other adults who cause no one harm. Bluster over 2A all day, unless you have a warrant with an actual crime, this potential juror finds even the hardened drug dealer not guilty, and the state in violation of 5A, 4A, and 8A. No 2A needed.

    1. And I’m well aware of the hyperbole that legislatures use to call non-crimes crimes, as if Mozart off key isn’t also a crime.

  8. According to the author of this drivel of an article, “The Heller case cited five antebellum state supreme court cases concealed carry laws. Only one of them asserted that concealed carry was outside the right to bear arms. The main line of the cases indicate that concealed carry can be banned as long as open carry is allowed. Or vice versa.”

    Let’s take a look at those five cases:
    *Bliss v. Commonwealth, 12 Littell 90 Ky. 1822
    Much of the opinion is devoted to deciding whether or not the Court could or should overturn an act of the legislature.

    But the key point to take away from the opinion is that the Court viewed concealed carry as a right that was created by the Kentucky Constitution. In the judges view, that concealed carry “right” could be taken away simply by amending the Kentucky Constitution, which the people of Kentucky did.

    In short, concealed carry was a government-created right.

    The Heller and McDonald opinions held that the right to Open Carry is a fundamental right that exists independently of the Constitution.

    **State v. Reid, 1 Ala. 612, 35 Am. Dec. 44 (1840)
    ***State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599 (1850)

    The Reid Opinion considered the hypothetical case where Open Carry was banned in favor of concealed carry and then rejected that hypothetical case. The Reid opinion said that concealed carry is evil.

    The Chandler opinion said, which you should recognize if you ever read the Heller opinion given that the majority opinion said that it and Nunn perfectly capture the meaning of the right to keep and bear arms:

    “The act of the 25th of March, 1813, makes it a misdemeanor to be “found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full view.” This law became absolutely necessary to (p.490)counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if neccessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

    Kopel did not invent the snake oil he is peddling. Way back in 2012, the 2nd Circuit Court of Appeals wasn’t buying it from the SAF lawyers.

    “Notably, Chandler and Reid conflict with Plaintiffs’ position, at least in part. Plaintiffs contend that a state may choose to ban open carrying so long as concealed carrying is permitted. But both Chandler and Reid suggest that open carrying must be permitted. The Reid court explained: Under the provision of our constitution, we incline to the opinion that the Legislature cannot inhibit the citizen from bearing arms openly, because it authorizes him to bear them for the purposes of defending himself and the State, and it is only when carried openly, that they can be efficiently used for defence.” Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 90 n.13 (2d Cir. 2012)

    The Wrenn opinion said that Heller’s citation to Chandler shields the right to Open Carry.

    ****Nunn v. State, 1 Ga. (1 Kel.) 243 (1846). Accord Stockdale v. State, 32 Ga. 225 (1860).
    The Nunn opinion likewise said that concealed carry is evil.
    Nowhere in the opinion, or any of the previous opinions, did it say that prohibitions on concealed carry were upheld because Open Carry was allowed, or that Open Carry can be banned in favor of concealed carry. In addition to saying that concealed carry is evil, the Nunn opinion closed with:

    “We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void…”

    *****Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871)
    This is what the Heller opinion had to say, “In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns.”

    The Andrews opinion said, “[W]e would hold, that the rifle of all descriptions, the shot gun, the musket, and repeater, are such arms; and that under the Constitution the right to keep such arms, can not be infringed or forbidden by the Legislature.

    The opinion, having held that long guns are absolutely protected arms, then turned to the question of concealable arms. It said, “As to arms worn, or which are carried about the person, not being such arms as we have indicated as arms that may be kept and used, the wearing of such arms may be prohibited if the Legislature deems proper, absolutely, at all times, and under all circumstances.”

    After upholding the prohibition on the possession and carrying of concealable handguns and concealable arms, the opinion made an exception for large, military handguns (revolvers) useful for soldiers to bear.

    “We hold, then, that the Act of the Legislature in question, so far as it prohibits the citizen “either publicly or privately to carry a dirk, sword cane, Spanish stiletto, belt or pocket pistol,” is constitutional. As to the pistol designated as a revolver, we hold this may or may not be such a weapon as is adapted to the usual equipment of the soldier, or the use of which may render him more efficient as such, and therefore hold this to be a matter to be settled by evidence as to what character of weapon is included in the designation “revolver.” We know there is a pistol of that name which is not adapted to the equipment of the soldier, yet we also know that the pistol known as the repeater is a soldier’s weapon–skill in the use of which will add to the efficiency of the soldier. If such is the character of the weapon here designated, then the prohibition of the statute is too broad to be allowed to stand, consistently with the views herein expressed.”

    This article exemplifies one of the reasons why I hold concealed carriers in such contempt. Not only do you think not getting caught in a lie is the same thing as telling the truth, but you also lie even when you would profit by telling the truth.

    https://CaliforniaOpenCarry.com

    1. You are actually nothing more than a ‘false flag’ propagandist who wants to make pro RKBA & 2A people look like babbling crackpot morons.

      1. Miles Fortis, only paranoid schizophrenics use the term “false flag.” Paranoid schizophrenics are mentally ill. The mentally ill do not have a right to keep and bear arms. Also, it is a crime for the mentally ill to possess firearms.

        Please turn yourself and your firearms over to law enforcement.

        1. Yep. I got it right.

  9. Well the courts 3 liberals will vote for anything gun control damn 2A. Roberts will probably join them because he’s a squish and thinks this is the approved view point at this time.

    It will come down to Kavanaugh and Barrett to hold the 5-4 line.

    Thats it. Of course the law is unconstitutional. The debate is laughable,

    1. wreckinball, Justice Kavanaugh said that prohibitions on concealed carry are constitutional, as has Chief Justice Roberts, Justices Thomas, Alito, and Breyer.

      Perhaps you meant Justices Barrett and Gorsuch, who haven’t expressed an opinion on concealed carry, but for them to hold a 5-4 line there would have to be 5 justices to form the line. I don’t see Justices Sotomayor or Kagan saying that the proper cause requirement for a concealed carry license violates the Second Amendment so where is that 5-4 line, or any line for that matter?

  10. “[M]oral turpitude is evidenced by an act of baseness, vileness or depravity in the private and social duties which according to the accepted standards of the time a man owes to his fellowman or to society in general.” US v. Zimmerman, 71 F. Supp. 534, 537 (E.D. Pa. 1947)

    For over 400 years under American and English law before Independence, a man had a duty to inform his fellowman that he was armed.

    From 1603 to 1825, English law had a simple remedy for a concealed carrier who killed someone. The concealed carrier was executed.

    There was no possibility of a pardon or leniency of any kind (what was once known as “The Benefit of Clergy.”).

    Laws punishing concealed carry (life imprisonment) date back to at least ca 1260 in England.

    Despite nearly 800 years of American and English laws punishing concealed carry, some would have you believe that the framers of the 2nd and 14th Amendments and those who voted to enact those amendments into law believed that acts of moral turpitude, specifically concealed carry, are protected by those amendments.

    It is telling that when asked to prove their case. the best they can do is to cite case law that characterized concealed carry as vile and evil, or in the NYSRPA brief on the merits, make no case at all.

    That is the same type of B.S. that poured out of the Soviet Union.

    It is also the same type of B.S. that has been pouring out of the pages of “The Volokh Conspiracy” since before President Trump was elected. Trump didn’t cause it. His candidacy the first time he ran merely caused the “Conspirators” to come out of the closet or out from under the rocks.

    1. From what we can tell, you don’t like the lawsuits concerning concealed carry since they detract from your own open carry lawsuit and thus keep you out of the limelight you apparently crave so much you’ll troll here with insults.
      I wonder if it also affects your cash flow from contibutions……….

  11. I wish I had made a study of psychology.

    Concealed carriers are cowards, criminals, and depraved degenerates. And yet they believe that those of us who aren’t among their kind will get our feelings hurt because they call us names.

    Psychologists must have a word for that. I wish I knew what that word is.

  12. “Concealed carriers are cowards, criminals, and depraved degenerates. And yet they believe that those of us who aren’t among their kind will get our feelings hurt because they call us names.”
    Yet you call people names too.
    Hypocrite much?
    That’s why your suit has languished in ‘court hell’ for over a decade, everyone considers you just another crackpot.

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