Second Amendment Roundup: In Wolford, Hawaii relies on the Black Codes

Improper analogue to support ban on arms on private property open to the public.

I have filed an amicus curiae brief in Wolford v. Lopez, which is pending in the Supreme Court, on behalf of the National African American Gun Association.  As explained in my previous post, the issue is whether the Ninth Circuit erred in holding that Hawaii may prohibit the carrying of handguns by permit holders on private property open to the public unless the property owner affirmatively gives express permission.

Hawaii enacted this ban in defiance of the Supreme Court's ruling in Bruen that the Second Amendment protects the right to bear arms in public.  The Ninth Circuit upheld the ban under Bruen based on the existence of two purported historical analogues, one of which was an 1865 Louisiana law.  I've written extensively on the black codes in Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the "Constitutional Right to Bear Arms," which both Heller and McDonald cite as authority. Thus, I focused on the Louisiana law in the amicus brief.  The following summarizes the argument.

Hawaii's ban on a licensee carrying a firearm on another's property that is open to the public without express authorization is covered within the plain text of the Second Amendment and is presumptively protected.  To demonstrate that the restriction is "consistent with this Nation's historical tradition of firearm regulation," New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022), the Ninth Circuit relies on two supposed analogues, a 1771 New Jersey law made it an offense to carry a gun on another's lands without a license or written permission, and an 1865 Louisiana law prohibiting the carrying of firearms on the premises or plantation of another without consent.

The existence of merely two such outlier laws almost a century apart, neither of which was subjected to judicial scrutiny, fails to establish a historical tradition.  This brief focuses solely on the 1865 Louisiana law, which was enacted during a tumultuous period in the aftermath of the abolition of slavery.  It goes without saying that this period is too far removed from the Founding to give information on the original meaning of the Second Amendment.

In the immediate post-war period, Louisiana jurisdictions adopted "regulations applying exclusively to the Negro."  Senate Ex. Doc. No. 2, 39th Cong., 1st Sess., 23 (Dec. 19, 1865).  The town of Opelousas exemplified the trend with its ordinance providing that "No freedman … shall be allowed to carry firearms" within the town limits "without the special permission of his employer, in writing, and approved by the mayor or president of the board of police."  Id. at 23 & 89.

The Freedmen's Bureau overruled such restrictions when they came to its attention.  It became clear that prohibitions on freedom of movement and the right to bear arms could no longer explicitly limit their applicability to the "freedmen."  Laws of general applicability would be enacted that were intended and functioned to apply to the freed slaves.

The 1865 law making it unlawful to carry a firearm on another's premises or plantations without consent was part of several enactments signed by Governor Madison Wells that deleted explicit references to the "freedmen" while continuing the policies of the black codes.  The gun carry ban could be enforced to prevent freedmen from carrying firearms on premises and on plantations without no-trespassing signage.  Another law made it a crime to enter upon a plantation without permission, without any requirement that the land be posted, which limited the freedom of movement of freedmen.

Another law provided for the conscription of "vagrants" who could be detained and hired out to an employer or made to do hard labor on public works for as much as a year.  Still another prohibited enticing a person to leave his employer, which kept the freedmen in a condition of servitude.

These laws received national attention in publications like the New York Tribune, March 7, 1866, which recited the law making it unlawful to "carry firearms on the premises or plantations of any citizen" without consent and concluded: "For the blacks we find a code of laws establishing a system of serfdom, forbidding the free passage of blacks from one plantation to another, and under the form of apprenticeship and Vagrant laws reenacting slavery in fact."

Testimony before the Joint Committee on Reconstruction established that such laws would have been selectively enforced against the freedmen.  Governor Wells, a former slave owner, appointed sheriffs, judges, district attorneys, mayors, and other officers who were recently in the Confederate army.  One witness testified that in the courts, "as far as justice to a freedman is concerned, it is a pretence and a mockery."  Report of the Joint Committee on Reconstruction, pt. iv, 81 (1866).  Another quoted Governor Wells as saying that "the government must pay for the slaves that had been emancipated…."  Id. at 116.

Louisiana's ban on carrying a firearm on premises or plantations without consent was the type of law that Congress sought to render void in the Freedmen's Bureau Act, S. 60, and the Civil Rights Act, S. 61, which were enacted in 1866.  It was also the kind of law sought to be prohibited by the Fourteenth Amendment.

In Congress, former Louisiana governor Michael Hahn was quoted as stating: "It is necessary … to see that slavery throughout the land is effectually abolished, and that the freedmen are protected in their freedom…. 'The right of the people to keep and bear arms' must be so understood as not to exclude the colored man from the term 'people.'"  Cong. Globe, 39th Cong., 1st Sess. 217 (1866).  Representative Thomas D. Eliot quoted the above Opelousas ban on freedmen carrying firearms as an example of the restoration of slavery in fact.  Id. at 517.

Supporters of S. 61 praised the order by General Sickles in South Carolina recognizing the constitutional right to bear arms, which did not "authorize any person to enter with arms on the premises of another against his consent."  Id. at 908 (emphasis added).  That was the normal rule, in contrast the Louisiana's law requirement that one could not go on another's premises "without the consent" of the owner.

The Civil Rights Act provided that all citizens "shall have the same right … to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens…."  14 Stat. 27.  The Freedmen's Bureau Act expanded that language to protect the right "to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms…."  14 Stat. 173.

The reference to "the constitutional right to bear arms" was originally proposed by Representative Nathaniel P. Banks, who as a major general had formed the Union government in Louisiana in 1864.  Cong. Globe at 585.  It was agreed that the expanded language did not change the meaning, implying that the Civil Rights Act also protected the right to bear arms.

In 1867, Congress declared that "no legal State governments" existed in Louisiana and nine other States, which were subjected to military authority.  14 Stat. 428.

Given that Louisiana was not even considered a legitimate state from its secession in 1861 and when it passed the 1865 Act making it unlawful "to carry fire-arms on the premises or plantations of any citizen, without the consent of the owner or proprietor," it cannot be said that this law was "consistent with the Nation's historical tradition of firearm regulation," Bruen, 597 U.S. at 24 (emphasis added).

* * *

The Court did not grant cert on petitioners' issue number two, of whether the Ninth Circuit erred in also relying on supposed analogues from the post-Reconstruction Era and later.  My amicus brief does not cover that issue, although it is sure to be debated in other briefs.  While there is much more to be said, petitioners' merits brief clinches the issue with a single sentence from Rahimi: "A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, 'apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'"

Comments

[Stephen Lathrop]

. . . the Ninth Circuit relies on two supposed analogues, a 1771 New Jersey law made it an offense to carry a gun on another's lands without a license or written permission, and an 1865 Louisiana law prohibiting the carrying of firearms on the premises or plantation of another without consent.

The existence of merely two such outlier laws almost a century apart, neither of which was subjected to judicial scrutiny, fails to establish a historical tradition. This brief focuses solely on the 1865 Louisiana law, . . .

Halbrook here illustrates disregard for any notion of history and tradition which a historian would recognize. During 1771 the American founding was already in process. The 1865 date closely preceded the 14th and 15th Amendments, both critically important parts of the so-called second-founding.

Halbrook's shtick has been to grab anything he likes from any date in the historical record, of any place, and twist a citation into some kind of support for unrestricted gun rights for Americans now. Even Magna Carta, and 17th century law in England, have been grist for Halbrook's mill. Here, his purpose apparently demands that he pretend not to honor the (bogus) principle on which he customarily relies.

Halbrook's OP thus examples two problems:

First, Bruen's history and tradition standard, as laid down and demanded by Thomas as a template for legal advocacy, is itself anti-historical. Thomas framed it explicitly as an exclusion of the majority of American history and tradition. He did that to outlaw historical evidence to the contrary of the way he wanted the case to come out. The Thomas method was to cherry pick the data, then tailor a pretend principle to encompass only the parts of the past he had discovered he wanted to include. Thus, the Bruen decision remains an intellectual disgrace, incapable to deliver systematic guidance for legal reasoning about gun rights, history, or tradition.

Thomas, also, by insistence on exclusive reliance on legal texts as evidence of history, excluded the vast majority of the historical record within the time frame he arbitrarily decreed. Even if the entire scope of relevant historical time were under consideration, historians not named Clarence Thomas have long recognized that legal texts standing alone are an unreliable standard to measure the relevance of historical inferences.

I have previously detailed many reasons for that conclusion. I will not repeat them here. Readers with any sense ought to understand that legal texts which result from political processes cannot be taken seriously as the sum and substance of actual practices—or even legally-related practices—in any place, or during any era. The texts of the laws are only sometimes congruent with the decisions of the courts, nor do either of those govern human activities which thrive outside of the scope of legal purview—a point especially relevant to the founding era. At that time legal reliance was spread unevenly across the landscape, with great rural expanses unable to furnish even a trained magistrate on a reliable basis. People made do on other bases than mere legal texts.

Second, Halbrook's grotesque purpose-built advocacy, is based almost entirely on pretend history. Halbrook shows again and again that he is unwilling to approach historical research as an activity with but one legitimate purpose: to enable inferences as reliable as possible to describe what happened in the past.

Halbrook's focus is never, not even in the slightest, concerned with accurate insight into the past. It is always, invariably, a method to deliver a narrative, however flimsy and distorted, which pretends a record from the past supports modern policies Halbrook supports and advocates.

In that misuse of history Halbrook is far from alone. It is commonplace. It was the method of Justice Thomas as well.

People who know nothing of historical method—most people in fact, to the extent they think about the past at all—do it that way. Unfortunately, that kind of present-minded presentation has never once achieved the impossibility it attempts.

That method seeks to make the historical record in some way conform to present context about which people in the past were uninformed. Just as we remain uninformed about what will happen decades or centuries hence, during a future about which we can know nothing today. Absolutely nothing done in law or culture today has been influenced in the slightest by issues or controversies which will happen decades hence. Thus, nothing we are capable to do offers guidance or insight into any of those future occurrences, or how to deal with them.

Giving no heed to any of that, Halbrook's advocacy remains little more than an invitation to confused thinking about a deadly-serious present-day controversy.

[Stephen Lathrop]

My last sentence should not have been italic. It is not a quote; it is my concluding remark.

[Stephen Lathrop]

"A court must ascertain whether the new law is 'relevantly similar' to laws that our tradition is understood to permit, 'apply[ing] faithfully the balance struck by the founding generation to modern circumstances.'"

The founding generation never gave a moment's thought to anything like the modern notion of gun control. To the extent the founding generation(s) might have thought about any federal arms regulation regime except under the Militia Clause, it would have had to cope with an insuperable problem—no conceivable principle to govern personal use of firearms could have been ratified alike by enough states to secure passage. Virginians perpetually worried about servile rebellions would hardly have trusted Pennsylvania's constitutional guarantee of self-defense arms for everyone.

The founding generation wisely dodged that problem, by leaving personal gun rights as matters for the states to regulate separately, according to their own constitutions. That is where the matter should still stand today.

I think gun rights advocates dislike that conclusion. They fear that if states were left free to tailor private gun rights to their own citizens' preferences, results beneficial to public safety might ensue in states with tighter controls. The gun advocates' own states might be tempted to follow suit, forcing the gun advocates into embarrassing Kirk-like professions of the practical utility of human sacrifices done at the whims of private gun wielders.

[Brett Bellmore]

That is where the matter would still stand today if the 14th amendment didn't exist.

But it's nice of you to admit that the gun control movement wants to treat everybody the way slave states treated blacks. You don't get many gun controllers admitting that.

[Stephen Lathrop]

Bellmore — Let's hear your Kirk-like demands for a private power of continuous human sacrifice, to be performed before the altar of liberty. Before Kirk brought that one out in the open, you did well to avoid it, although it remained all too obvious you agreed.

After that we can get to the idiocy it takes to equate gun controls with chattel slavery. Because that may prove hard to parse, note that gun controls applied alike to everyone are nothing alike with slavery inflicted on a minority. Let the people of my state posit constitutionally what gun rights we all enjoy, and I will be content to let the courts enforce equal protection to be sure we all keep the same rights.

But the good features do not end with that. With diverse state constitutions featuring different rights, anyone who made gun rights an important priority would remain free to move around, to adjust his gun circumstances to his preferences. Someone prosperous enough to do it, could enjoy liberal gun access policies in a state where he resides some of the time, and at other times live in relative gun-free security elsewhere. Presumably, both policies could be optimally tailored to the landscapes, circumstances, and preferences of the people most affected in each instance.

For the life of me I do not understand why so many pro-gun types want to force their ideas about that issue on others who live by different norms under different conditions. During my life I have been both an avid gun user, and an insistent gun abstainer, according to the changing circumstances in which I lived. So long as I remained free to continue that way, I would never feel a need to restrict anyone else's preferences about how to live elsewhere. Why do you?

[Stupid Government Tricks]

For the life of me I do not understand why so many pro-gun types want to force their ideas about that issue on others who live by different norms under different conditions.

No, of course you can't see the difference between "I have a right to keep and bear arms" and "I have a right to a gun-free world". Gun controllers and statists in general can't see that difference.

[JohnSmith97]

The same people who only want the gov't to own firearms are also the same ones unwilling to move to a country where only the gov't is allowed to own firearms.

[JohnSmith97]

Surprise, SL defends racist laws. Anything to achieve the goal of disarming civilians, right?

There is a certain humor to contrast your TDS screeds with your defense of Hawaii's law.

More of those (D) golden hearts?

[Stephen Lathrop]

Bellmore has lapsed into incoherence. I invite bystanders to read my comment above that Bellmore thinks he is replying to.

Also? I tend to think the guy insisting on a gun tends more toward being an aggressor than someone willing to make do without one.

[Stupid Government Tricks]

Bullshit, disproved by the fact of having 400 million guns in this country, whose owners quite evidently are far less aggressive than your statement requires.

[Aubrey LaVentana]

and the fact that more people die in the US by 'hands and feet' than by firearms of all types.

[Absaroka]

I may be misunderstanding you, but FWIW the FBI homicide numbers for 2019 are:

Total firearms: 10258
Personal weapons (hands, fists, feet, etc.): 600

(after 2019 they don't have the data in an easily linkable format, but those numbers are pretty typical over the years)

[Brett Bellmore]

" note that gun controls applied alike to everyone are nothing alike with slavery inflicted on a minority."

Oppressing EVERYBODY is much better than just oppressing a minority?

You're the one who wants to force his idea about how to live on others; I'm perfectly willing to let you not own a gun, you're not willing to let ME own one. That makes you the aggressor, not me.

[Stupid Government Tricks]

Oppressing EVERYBODY is much better than just oppressing a minority?

Yes, of course; what rock have you been living under? (Rhetorical question!)

[Stephen Lathrop]

Bellmore — You have lost your mind. Re-read my comment. Then see if you can muster a coherent response. Try to reply to my specific points, each one of them.

For instance, I am not trying to tell you how to live with guns in South Carolina. I am not trying to tell anyone in South Carolina how to live with guns. But you insist I must live as you dictate for me, and for everyone else in Massachusetts.

Of course I get that what is going on is that you steadfastly resist any notion of community at all, as too constricting for you. I take that as not merely an aggressive trait, but as an especially dangerous one.

I also assume from your commentary that you think of gun control measures as constraints against political violence, and want that possibility unconstrained. I think you might prioritize that ahead of every other gun-related consideration. If so, that is another especially aggressive and dangerous trait.

Nobody who knows me needs to worry that I am going to go out and get a gun to try to bring down the government. Nobody who reads your commentary here could be sure you are not aggressive in that way, and I think that is the way you want it. Wanting that is another aggressive and dangerous trait.

[Brett Bellmore]

Lathrop, 'local option' hasn't been a thing for civil liberties since the 14th amendment was adopted; The whole POINT of the 14th amendment was that it wouldn't be a thing.

So the fact that you don't want a particular civil liberty protected? Not a surprise, sadly, but you actually do need a Constitutional amendment to legally get your way.

[Stephen Lathrop]

Don't be an ass Bellmore. Heller was not a Constitutional amendment, but gun advocates legally got their way. My advocacy concedes Heller is the current law of the land, while explaining why it was a mistaken decision on its own terms.

I also point to your own mistake, to insist the 14A somehow created a right which never previously existed. And to do it mysteriously, without any explicit mention of the creation.

You, of course, cannot concede that anything changed with Heller, or even mention that prior to Heller the law of the land was different than it is now. Your advocacy is based on fantasy and avoidance.

[Absaroka]

"I am not trying to tell you how to live with slaves in Massachusetts. I am not trying to tell anyone in Massachusetts how to live with slaves. But you insist I must live as you dictate for me, and for everyone else in South Carolina."

As Brett says, we as a nation decided the Bill of Rights applies to everyone, whether or not some particular part of it is unpopular in a particular locale.

(and your Viva States Rights! position here is especially humorous given your long history of advocating for federal gun control)

[Stephen Lathrop]

Absaroka — There may have been a point in the distant past when I advocated for federal gun control. Or I may have just mistakenly framed some discussion in a way which left room to let you think so.

I have forthrightly advocated for federal programs to replace guns I think are too dangerous, with guns which are less dangerous. Mostly, I said participation in such programs should remain optional during the life of the gun owner. I did say that guns of the more dangerous sorts should become contraband, and federally barred from manufacturing and importation.

Perhaps while saying that, I sometime or other omitted to mention the option part, but I have repeated that also. So I confess that part of my advocacy has been muddled. But not muddled in the way you probably think.

Because I have never said or believed there was any federal gun right protected except the militia right. And because the only federal gun right which ever existed in the U.S. Constitution was the militia right, passage of the 14th Amendment could not, and did not, create a previously non-existent federal right to keep a gun for personal self-defense.

So what that leaves—in a way entirely consistent with my many-times repeated state right advocacy—is a certain amount of fraught territory over whether federal supremacy could in the future impinge on a state right to own a particular kind of gun. Or, interpreted another way, whether any state right to a gun has ever specified unlimited choices as to what kinds of guns qualify. I do not think those issues have ever received focus, let alone been resolved.

As for the substance of the state right part of the argument, I consider that proved as a matter of history. Proved two ways:

First, proved that nothing in the historical record exists to make a historically relevant case for a federal right of self-defense with a gun. The record for that simply is not there, but the record for the militia right is on point, repeated, explicit, and undeniable.

Do not misinterpret that to mean I think the non-existence of such a federal right is equivalent to saying no right to a gun for self defense exists in the U.S. That seems to be the point where detractors from my advocacy lose the thread. I instead insist that such rights have existed from the founding onward, but protected variously in state constitutions.

Thus, second, proved by inference that creation of a federal gun right for self-defense in the U.S. Constitution was a practical political impossibility. There simply was not in the late 18th century any consensus among the states upon what terms such a right could be framed. And there was no willingness to let state framing of such a right be overridden by a federal right which—just as you insist—would have to apply uniformly everywhere.

Virginia would never have consented to be governed by Pennsylvania's gun rights provision. It's slave owners had long since become sensitized to resist encroachments against slavery from northern abolitionists. They sniffed every breeze for a whiff of any such tendencies, and denounced them from time to time whether or not they smelled anything. No constitution featuring a federal personal right of self-defense with a gun was ever going to get ratified by Virginia.

Thus, the various states were not in agreement on any such questions. Absent agreement, the point had to be bypassed. The way to bypass it was to leave the question to be decided variously, state-by-state.

That is a point I have insisted upon on repeatedly for years on this blog, without yet receiving one syllable of argument to the contrary. I conclude it is so obvious that even gun rights advocates have to accept it, or if not, content themselves with evidence-free denials. For whatever reason, no one has yet joined that argument.

Do you have any evidence to say otherwise? Do you have any argument to the contrary without evidence, which for some reason you think persuasive?

[Absaroka]

"I have forthrightly advocated for federal programs to replace guns I think are too dangerous, with guns which are less dangerous."

Right. You have a 'Federal Supremacy!' flag and a 'States Rights!' flag. In any situation you wave whichever lets you restrict rights according most at the moment.

You're hardly alone, but why do you think such arguments are persuasive?

[Stephen Lathrop]

Yet another on a long list who decline to engage substantively.

I insisted, and explained why, that the 2A encompassed only the militia right. The nub of the argument was no consensus among states about any personal gun rights framing which would suit them all. So the question of how to frame a non-milita right to use firearms got bypassed, and thus left to the states.

Why no comment from you? Do you concede the point? Deny the point? Want to run from the point?

By the way, are you another who cherishes a notion that personal gun rights need to be protected, lest the populace lose capacity for political violence?

[Brett Bellmore]

It really doesn't matter how much you wish it, the 2nd amendment isn't going to mean what you'd rather it meant.

[Stephen Lathrop]

Oppressing EVERYBODY is much better than just oppressing a minority?

Yup. Leaders who try to oppress EVERYBODY never get away with it. Which is a good reason to keep needful policies which some folks will not like as widely applied as possible, and as minimally framed as necessary.

[Stupid Government Tricks]

Are you here arguing that gun control won't work?

[F.D. Wolf]

That many legislatures and courts, particularly in the South, seemed to flip abruptly on the issue of gun control after the Civil War is hardly a historical mystery. They could hardly tolerate a bunch of armed blacks who were probably pretty upset about that whole slavery thing. The case of Watson v. Stone, 4 So. 2d 700 (Fla. 1941), is illustrative.

Watson, a white man, had been convicted for the possession of an unlicensed pistol, which was in the "glove pocket attached to the inside of the dash" of his car, while he was riding in the front passenger seat. The Florida Supreme Court, in a 5-2 decision, threw out the conviction, holding that he had not violated the letter of the statute, which prohibited an individual from "carrying a pistol around with him or having a pistol in his manual possession" without a license.

Justice Rivers H. Buford wrote a concurrence:

I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901, and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied.

Id. at 703 (Buford, J., concurring).

Look, we know we can't write "this only applies to blacks" in the law, but, to be clear, this law only applies to blacks.

[Jack Jordan]

It is not true that "Louisiana was not even considered a legitimate state from its secession in 1861 and when it passed the 1865" law.

Legally, no state seceded from the Union. Instead, people in those states engaged in rebellion and insurrection. Rebels merely tried (unsuccessfully) to secede--in violation of the U.S. Constitution. That's why "In 1867, Congress declared that 'no legal State governments' existed in Louisiana and nine other States, which were subjected to military authority." No legitimate government existed in such states. Even so, the states had never ceased to be U.S. states, the people of such states who were U.S. citizens had never ceased to be U.S. citizens, and the other residents of such states had never ceased to be persons subject to our Constitution.

This very issue is relevant to the conduct of Trump today, so it's worth saying more about it. In Alden v. Maine, 527 U.S. 706 (1999), Justices Kennedy, O’Connor, Scalia and Thomas and Chief Justice Rehnquist were in the majority. They emphasized that “the Constitution begins with the principle that sovereignty rests with the people.” They emphasized that our Constitution (the Preamble) begins by expressly emphasizing that “the people” did “ordain and establish the Constitution.”

Justices Souter, Stevens, Ginsburg and Breyer issued a dissenting opinion that was far more powerful and explicit about the power of the sovereign people. They also emphasized a particular aspect of popular sovereignty that is relevant. When any “action” of any public servant “is unconstitutional,” it “is not the word or deed of the” sovereign people. It “is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name.” They were quoting SCOTUS precedent in Poindexter v. Greenhow, 114 U.S. 270 (1885).

Alexander Hamilton emphasized something similar in The Federalist No. 83: “Wilful abuses of a public authority, to the oppression of” the people “are offenses against the government” (not actions of the government) “for which the persons who commit them may be indicted and punished” (criminally) “according to the circumstances of the case.” Many early leaders emphasized that particular point when they impeached SCOTUS Justice Samuel Chase (for viciously depriving people of liberty and property without due process of law in knowing violation of the express provisions of the Sedition Act of 1798). Justice Chase irrefutably committed crimes in Section 1 of the Sedition Act.

In Poindexter, SCOTUS was even more emphatic:

"The government is an agent [of the sovereign people], and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. . . . [T]he maxim, that the king can do no wrong, has no place in our system of government. . . . That which, therefore, is unlawful because made so by the supreme law, the Constitution of the United States, is not the word or deed of the [the sovereign people], but is the mere wrong and trespass of those individual persons who falsely speak and act in [their] name. It was upon the ground of this important distinction that [SCOTUS already had decided very important cases]."

In Poindexter, SCOTUS emphasized that the foregoing were extremely important in the history of our nation, of our Constitution and of SCOTUS. After the Civil War, SCOTUS “adjudged that the acts of secession” were “the unlawful acts of usurping [individuals], and not the acts of the States themselves.” SCOTUS “adjudged” that “the war” was not “between the States, nor a war of the United States against States, but a war of the United States against unlawful and usurping [individuals], representing not the States, but [only] a rebellion against the United States. This is, in substance, what was said by Chief Justice [Salmon] Chase” (not the impeached Justice Samuel Chase) in a prior decision “when he declared” that “the Confederate government” was “simply the military representative of the insurrection” (not the representative of any State) “against the authority of the United States.”

"This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say [as the French king famously did] 'L’Etat c’est moi.' ”

[wvattorney13]

Even if we ignore the roots of this law there is a massive difference between saying that you cannot by default carry on someone's home property, were most people are not invited, and carrying in a place that is open to the whole world for business purposes.

I predict that this won't be particularly close. This will be struck down as cherry picked. More importantly, it is the type of gun law that Roberts/Kavanaugh/Barrett will support striking down.

[Stephen Lathrop]

wvattorney13 — Like many gun advocates you seem to assume the present legal interpretation of gun rights is destined to go on forever. That is unwise.

To decree uncontrolled, unrestricted gun rights for everyone is to make ownership and gun carriage a matter of practical right for the feckless, the criminals, the mentally incompetent, the domestic abusers, the chronic alcoholics, and the addicted. Not to mention the blind, the bullies, and the incompetent parents of small children. No category of personal incompetence which is not a matter of continuous public record and legal enforcement can be made a practical exception to today's notion of gun rights. That means unmistakably that a civilian arms race continued unabated will fully arm almost everyone—with the least stable and most aggressive leading the way.

That is before we get to the would-be insurrectionists, who too often turn out to be the whole point of pro-gun advocacy.

That is not merely present reality, but far worse, a developing tendency with foreseeable consequences. It would be smarter to cooperate with would-be gun controllers now, to put boundaries in place. Make the consequences of gun advocacy less menacing and less deadly, and that will better serve long term stability for an American gun culture featuring responsible gun ownership and use.

Fail to do that, and policy changes every bit as draconian as those imagined by the most paranoid gun advocates will become the context for new gun controversy. Suppose that happens in a context of some horrific public act, involving armed men attacking crowds and killing hundreds, maybe during a presidential inauguration, or a massive political march, or in a series of such events.

Are you unable to see that is the direction toward which gun advocacy now trends? You must at least see that there are plenty of gun advocates who relish such notions.

[Brett Bellmore]

"Like many gun advocates you seem to assume the present legal interpretation of gun rights is destined to go on forever."

I for one assume nothing of the sort. As early as 2029 we could see a Democratic party 'trifecta', followed by Court packing and radical rulings overturning civil liberties the left finds inconvenient, such as freedom of speech, and the right to keep and bear arms. And the invention of new atextual 'rights' out of whole cloth.

But a formal and very temporary triumph by the left wouldn't make the 2nd amendment go away, and the political effects of the judiciary deciding to erase an explicit constitutional right would be pretty dire.

Nobody would feel any particular moral obligation to obey obviously unconstitutional laws. Nobody does now!

You'd win formally, but it would be a very meaningless victory.

[Stephen Lathrop]

Another example from one of the would-be insurrectionists, who too often make insurrection out to be the sticking point of pro-gun advocacy.

Stop mumbling. Go ahead and just say it Bellmore. You are an extremist who refuses even to engage advocacy less extreme than your own.

[Brett Bellmore]

I AM engaging with your inane advocacy.

1. "Local option" isn't, constitutionally, a thing, thanks to the 14th amendment.

2. Your interpretation of the 2nd amendment is highly ahistorical, motivated reasoning at its worst.

3. Because regardless of how hard you rationalize, people will continue to understand that most gun control laws are unconstitutional, there won't be more than a trivial level of compliance. Rationalizing even harder won't change that.

4. If you try harder to enforce laws that are seen as fundamentally illegitimate by the people you're enforcing them against, the political and social consequences will happen even if you think they're inappropriate.

[Stephen Lathrop]

Bellmore, please explain in terms of your own notion of historical method how my interpretation of the 2A is, "highly ahistorical." What have I said that was historically mistaken? Where have I resorted to invalid inference? What have I left out that you insist must be accounted for? Please be specific.

[Brett Bellmore]

I've explained this multiple times before, but for the benefit of any newbie who might wander by and think you have a point...

The 2nd amendment IS intended to preserve the viability of the militia system, that is clear from the debates concerning it, and it's own preface.

Where you go wrong is by not understanding HOW it preserves the militia system's viability.

A militia is drawn from the general population, which is presumed to already be suitably armed and know how to use those arms. An already armed population is a fundamental requirement for a militia system.

The 2nd amendment preserves the militia system by preserving that fundamental requirement.

A 'militia system' where only the active militia members are armed isn't a militia system at all, it's a standing army that you're calling a "militia".

Second, we're talking about a right, in the Bill of Rights. The Bill of Rights is not premised on the government intending to do the right thing. It is a safeguard against a government that wants to do the wrong thing! All rights in a bill of rights have to be interpreted from that perspective: Identify the wrong protected against, and interpret the right so as to actually protect against it.

The wrong the 2nd amendment protects against is a government that wants to discontinue the militia system, make a militia impossible to raise in an emergency. By limiting who can own weapons, prohibiting ownership of weapons suited to militia purposes, a bad government could make it impossible to raise a militia in an emergency.

And there is no real historical question that the 2nd amendment WAS intended to protect against a tyrannical government that would disarm the people to render itself secure against them. As Tench Coxe said, (And was thanked by Madison for saying it!):

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize,... The people are confirmed by the next article in their right to keep and bear arms."

So, the 2nd amendment, to achieve its purpose, has to prohibit the government from limiting who can own weapons, and prohibit it from limiting those weapons to ones unsuitable for military purposes.

The degree to which this has been established from contemporary sources is amazing. Which is why the court in question had to appeal to laws enacted long after the 2nd amendment was adopted, and unambiguously adopted specifically TO tyrannize the population!

[Jack Jordan]

Brett, that was a good summary of part of the purpose of the Second Amendment. But it was only part of the purpose to support our Constitution by supporting militias by supporting the individual right to keep and bear arms.

The best parts of Bruen came from Heller. Heller properly emphasized the individual right to keep and bear arms for purposes of personal defense and personal preservation. Personal means more than self. It includes friends and family and community. Preservation includes more than defense. It includes hunting and helping preserve law and order.

Even if Madison, himself, had said:

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize,... The people are confirmed by the next article in their right to keep and bear arms."

That would not and could not mean:

"So, the 2nd amendment, to achieve its purpose, has to prohibit the government from limiting who can own weapons, and prohibit it from limiting those weapons to ones unsuitable for military purposes."

As Heller (and Bruen to a lesser extent) emphasized, the Second Amendment and the First Amendment most fundamentally secure the power of the people to protect themselves. Common sense and necessity tells us (and they told the Founders) that the right to use expression or arms for defense or preservation cannot mean that such conduct cannot be regulated.

Look at the Constitution, itself. Regarding speech, it expressly compels or permits some speech and precludes other speech. See, e.g., Articles II and VI (requiring oaths and precluding religious tests). See, e.g., Amendment V (permitting compulsion of testimony by witnesses and precluding compulsion to testify against self).

Regarding arms, look at your (correct) statement of what it means to have a militia and then consider the necessary implications of Article I expressly vesting in Congress the following powers:

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" and

"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Clearly, Congress has the power to regulate the conduct of people who own weapons. Congress even has the power to call them up into active service.

Regarding your statement that "the 2nd amendment WAS intended to protect against a tyrannical government." I hope you did not mean to imply that arms were intended to empower people to protect themselves from tyrannical government by use of arms. If that is what you meant, that is not even close to what Coxe said or meant.

[Brett Bellmore]

To be clear, that statement was from Tench Coxe, and Madison thanked him for making it.

I think that self defense would be the most obvious of 9th amendment unenumerated rights, and that once you have the right to own guns, you have the right to use them for any lawful purpose, which self defense unavoidably must be among.

But in Heller, Scalia tried to put the whole weight of the 2nd amendment on self defense, because he really didn't like the implication of it being a right to militia weapons: Military weapons. He really was trying to uphold only a somewhat neutered version of the amendment, that downplayed its martial core.

" I hope you did not mean to imply that arms were intended to empower people to protect themselves from tyrannical government by use of arms. If that is what you meant, that is not even close to what Coxe said or meant."

What did you think he was getting at with, "Whereas civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms."?

Tench Coxe absolutely contemplated the use by private citizens of those arms against the government. He was quite explicit about it, and not alone in that.

[Jack Jordan]

As SCOTUS explained in Heller, the Second Amendment definitely (and obviously) doesn't secure merely keeping and bearing arms. If it did, it would be meaningless for multiple reasons. With respect to firearms, it must secure the right to keep and bear ammunition, too.

The Second Amendment also necessarily secures (regarding both arms and ammunition) the right to use them. In Heller, SCOTUS justices emphasized the foregoing many times. Arms obviously don't contribute in any way to defense or preservation unless they can be used.

If you want to know what Coxe was getting at, read Heller and other accounts of how the English King at one time barred Protestants from owning weapons. That, itself, was considered tyranny because Protestants (like enslaved people in the South) had no means to protect themselves from other people who had the right to keep, bear and use arms (including Catholics in England at that time).

Coxe clearly and definitely did not say--and he did not mean--that arms were to be used by Americans against their own (mostly elected) representatives. That's the point of having elected representatives, elections and First Amendment rights and freedoms. In fact, many in the 1780's believed that annual elections were essential to secure rights. It was a big deal back then (and took a lot of convincing) to make elections for the House of Representatives occur only every 2 years. It was an even bigger deal to make the president's election occur only every 4 years and Senators only every 6 years.

People did try to use arms against U.S. representatives very shortly after the Second Amendment was ratified (1791). In 1793 and 1794, the Whiskey Rebellion was such an armed uprising. It was met by George Washington with overwhelming force (and magnanimity).

[Jack Jordan]

Brett, read the various opinions in Heller. The didn't emphasize only self-defense or self-preservation. Very far from it. They repeatedly referred to defense of the community or the nation.

More that 60 times they referred to defense (or defence) or preservation. There's no need to invoke the 9th Amendment to find such a right. The justices in Heller emphasized repeatedly that such rights were the entire point of the Second Amendment. The Preamble, too, emphasized the same principle regarding the Constitution, the Union and national government. "We the People" did "ordain and establish this Constitution" to "secure the Blessings of Liberty to ourselves," including by securing "Justice," and "provid[ing] for the common defence" and "promot[ing] the general Welfare." Those are the only reasons for having an army, navy and militias and the only reasons the People vested powers in Congress to declare war and the President to command the Armed Forces and militias.

[Jack Jordan]

Brett, tyranny was a word that was used often by the people who wrote and ratified our Constitution. See, e.g., Federalist No. 83 ("the tyranny of popular magistrates in a popular government"); Federalist No. 63 ("government" should provide "a safeguard against the tyranny of [the people's] own passions"); Federalist No. 70 ("the intrigues of ambitious individuals who aspired to the tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government").

They designed many devices in our Constitution to oppose tyranny and the tendency toward tyranny by dividing and allocating powers (first, between the sovereign people and all public servants, then between state and federal governments, then among legislative, executive and judicial branches/departments). They did not intend to encourage people to disregard everything else in our Constitution and simply resort to armed attack on anyone suspected of tyranny.

As James Madison (echoing Montesquieu), fairly famously highlighted in The Federalist No. 47, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many” is “the very definition of tyranny.”

Madison (quoting Montesquieu) emphasized, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates,” or, “if the power of judging be not separated from the legislative and executive powers.” "[T]here can be no liberty, because" the "same [executive] or [legislature] should enact tyrannical laws to execute them in a tyrannical manner.” Where “the power of judging” is “joined with the legislative, the life and liberty of the [people] would be exposed to arbitrary control, for the judge would then be the legislator.” Where the power to judge is “joined to the executive power, the judge might behave with all the violence of an oppressor.”

As a result, Madison emphasized that “the preservation of liberty requires that the three great departments of power [legislative, executive and judicial] should be separate and distinct.”

[Jack Jordan]

Brett, I think you were more right and the SCOTUS justices in Heller (and I) were more wrong. The right of self-preservation and the subordinate right of self-defense were not enumerated in the Second Amendment. At the very least, they are rights that the Ninth Amendment helps secure. But they also were enumerated or implied elsewhere, e.g., in the Preamble ("establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity") and in Article II ("preserve, protect and defend [our] Constitution").

I thought more about what you emphasized about Tench Coxe. I also re-read Madison, himself, in Federalist No. 46. If I understood Madison correctly, he viewed the individual right to keep and bear arms as a sort of sword of Damocles dangling over the head of federal officials. He saw the individual right to keep and bear arms as essential to the moral courage and efficacy of our public servants in state governments in helping secure our rights against federal officials.

From Federalist 46:

Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. . . . Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.

[Jack Jordan]

Brett, another aspect of our Constitution that we must consider regarding this case is the First Amendment. SCOTUS has long recognized (as Madison did in 1789) that the First Amendment secures our freedom of association. "We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States." Williams v. Rhodes, 393 U.S. 23 (1968).

If I understand Hawaii correctly, the state essentially established a presumption protecting the freedom of association of people on private property: people with the right to control private real property are presumed to not want to associate on such private property with people bearing firearms. So when people want to bear arms on other people's private property, the former must obtain (or look for some sign evidencing) the consent of the latter. Isn't that fair and why isn't that constitutional?

[jb]

If this law applied to some other Constitutional right, like you can't operate a printing press or hold a religious service on private property without explicit permission of the owner, would that pass Constitutional muster? Other folks may have a better sense of this from the caselaw, but it's not intuitively obvious to me why those hypothetical laws shouldn't be allowed. Even if you accept the notion that the right to bear arms should be just as protected as other Constitutional rights, I don't think there's any reason to think it should be treated better than the others.

[Absaroka]

Would it be legal to pass a law making it a crime for a Catholic to carry a rosary in their pocket when visiting the mall or supermarket without prior permission from the property owner? Or for that matter, to accept an invitation to dinner from a neighbor and carry a rosary along without asking permission?

[JoeFromtheBronx]

The hypo should be religiously neutral. It's rather easy to show that a law about Catholic religious items would be a problem.

The particular importance of the privacy of the home makes it far from unreasonable to argue that people should not enter private homes armed without permission. At least, there is more cause to think so than carrying a small religious item into the home.

Guns and religious items are regulated differently in various respects. Guns in public places are regulated more in various respects. A gun and a religious item are not simply exchangeable.

[Incunabulum]

It makes it absolutely unreasonable that tm*the states* gets to mandate what the property owner's stance is and how it can be expressed.

You are no longer allowed to allow your guests to freely choose.

[Stephen Lathrop]

Absaroka — Please find a rosary which confers absolute power over life or death for others, or get your analogies under control.

[Grifhunter]

https://www.heraldandnews.com/rosary-beads-used-in-strangulation/article_08c7bea9-ff18-5017-8df8-79257420844b.html "Maximiliano Cilerio Esparza, accused of raping two nuns and strangling one of them to death with her rosary beads last Sunday"

[Absaroka]

Find me a rosary that's as effective at stopping a rape or mugging as a gun.

[JoeFromtheBronx]

Sorta of making his point with that comment.

[Absaroka]

Can you flesh out your reasoning there?

We're getting away from constitutional arguments into utilitarian ones here, but ISTM a law forbidding carry of, say, epipens is more problematic than one affecting purple socks.

This is why a lot of anti-gun folks seem a little disingenuous to me. For example, stores can put up 'No Pets' signs and enforce them, but in general I think they must allow Seeing Eye dogs. Even if the store owner has a terrible phobia of dogs, or was once mauled by one, they can't kick out a blind person with a Seeing Eye dog.

We don't treat guns the same. I get that many anti-gun folks fervently believe, despite the data, that CCW holders are mostly one twitch away from becoming mass shooters, but I think you have to reasonably admit that at least some of them have a good reason to carry - and yet most laws make no allowance for that. It doesn't matter if you are a police officer's spouse trying to protect your kids because of credible threats because of your spouse's job, or a stalking victim, or a witness or juror facing retribution for testifying against or delivering a verdict some gang doesn't like.

These laws - can't carry in the post office, at the store, or anywhere not posting permission - don't contain any 'but for good cause' exception *at all*. How is someone facing a genuine threat supposed to lead a reasonable life? I'm sure people could propose reasonable policies to manage the differing views people have about guns, but I don't see how reasonable people can support flat bans.

[JoeFromtheBronx]

This brief focuses solely on the 1865 Louisiana law, which was enacted during a tumultuous period in the aftermath of the abolition of slavery. It goes without saying that this period is too far removed from the Founding to give information on the original meaning of the Second Amendment.

The concern that the historical analogue is a Black Code is quite relevant to the specific question -- the application of the 14th Amendment. There is also significant evidence (for those who care) of original understanding tied to the 14A that individual ownership was believed to be protected. More so than for the 2A.

It's a tad absurd for this question to turn on one or two laws from a distant age. Anyhow, the opinion cites "sets of laws." Not "a" law in the 18th and "a" law from the 19th Century.

It cites the LA law as akin to other laws. Now, maybe it was not. This is a problem with "history and tradition" citations. It's hard to keep the context of everything on track.

We are left to rely on other historical analyses to determine if we can remove that LA law and rely on other comparable laws without racist baggage. It is quite proper to provide context when laws are cited to fulfill the current, rather misguided 2A approach.

Interestingly, the opinion references Cedar Point Nursery v. Hassid, the subject of a recent entry on COVID restrictions, as a ground to argue a law protects property rights.

[Brett Bellmore]

Screw hypothesizing that there were other, better instances they just didn't bother mentioning. The burden was on them, not us, that they didn't show them means a presumption they don't exist.

And they knew that. If they didn't cite other laws, we may presume they didn't exist to be cited.

And they didn't cite a Jim Crow law because they thought, "Why bother leading with our best evidence, we'll rely on a law everybody knows was motivated by racial animus, and deliberately intended to infringe rights, just for yucks."

They did it because they didn't HAVE better. Because their goal IS the same as Jim Crow: To infringe a right. The only difference is that they want to infringe that right for almost everybody, instead of a minority.

[Incunabulum]

People keep insisting the Repibs and Ds 'switched places' (conveniently) right after the CRA but it's always the Da that use racist laws to support their policies.