"and with which neither States nor Congress were allowed to interfere"

"Note.--Is it not remarkable that Courts will undertake to decide that a deliberately enacted by the Legislature of a sovereign State is unconstitutional and void, because it is in derogation of that clause in the Constitution of the United States which forbids a State to pass a "law impairing the obligation of contracts," when no Court of final jurisdiction has yet determined what is meant by the obligation of contracts? Mark the expression: it is, the "obligation" (in the singular) of "contracts" (in the plural.) Now what does that mean? Certainly something that is the same in all of the States. Whatever it may be, it must be the same in Maine, in South Carolina, in Texas. It is not, and cannot be, something that is doubtful; and, if this case is to be decided by authority, I call for the decision that decides what is the meaning of the phrase. It cannot be the moral obligation, because that existed before the Constitution was adopted, and was obligatory on the parties without its aid. It cannot be the legal obligation because that was an existing right at the framing of the Constitution, which the Courts could then enforce, and if that was the meaning, it would have been so expressed. What then was it? Congress, by the first article of the amendments, declared that no law shall be made respecting an establishment of religion, or abridging the freedom of speech, or of the press, or of the right to petition the government, or of the right of the people to keep and bear arms. What rights were these? They were not rights conferred by law, but they were natural rights which existed independently of law, and with which neither States nor Congress were allowed to interfere. The freedom of speech does not mean slander; the freedom of the press does not mean libel; the right to petition does not mean the impertinent interference of the people of one State with the domestic regulations of the people of another State; the right to bear arms does not mean the right to shoot any man who may offend you. Hence, I infer, that the obligation referred to in the clause under consideration is that natural obligation of contracts which existed before the Constitution was adopted and with which the States were forbidden to interfere. That is, that real obligation, the exact meaning of the contract, which the Courts are to determine whenever the parties thereto disagree, and which no State can impair by legislation. It is the something which is the same in each and every of the States. It cannot be the right to sue, because the practice of the Courts is different in different States, and that was a right which each citizen possessed without the aid of the Constitution, and before it was adopted. It must then be "that natural obligation, which contracts have of natural right in conformity to natural justice." Thus, when A and B enter into a contract which has a plain and natural meaning, the Legislature will not be permitted to place upon the words used to express the contract an artificial meaning, and, if they do, the Courts must declare that every such strained and artificial meaning is unconstitutional and void. How a law, which acts simply upon the remedy, can be forced to come within the meaning of this clause, is what I cannot see.

   Let us take the case of Ogden vs. Saunders, which is the leading case, and on the authority of which all the cases cited have gone; did that case decide what is t"he obligation of contracts?" It did not. Of the seven Judges composing the Court, there were four different opinions, and of the four Judges who did agree in deciding the case, three different opinions prevailed; and so as to the text writers, the same division of opinion obtains. I therefore repeat, it is remarkable that a Court will undertake to decide that the law is unconstitutional, when it has not yet been decided what is "the obligation of contracts."
   Since writing this opinion, Lysander Spooner, Esq., of Boston, kindly sent me his book, entitled "A New System of Paper Currency," and to it I am indebted for the point made in this note.--A.P.A."

[REPORTS OF CASES AT LAW AND IN EQUITY, ARGUED AND DETERMINED IN THE COURT OF APPEALS AND COURT OF ERRORS, OF SOUTH CAROLINA. LAW VOL. XIII.-- EQUITY VOL. XII. FROM MAY, 1860, TO MAY, 1866; BOTH INCLUSIVE BY J.S.G. RICHARDSON. CHARLESTON, S.C.: E.J. DAWSON & CO. 1866.]  

"It would take from the people all the security afforded by their constitutions"

"This constitutional right of men to enter into all obligatory contracts, is a natural, inherent, inalienable right, It exists antecedently to, and independently of, any positive or municipal law. It may be recognized, acknowledged, guarantied, and secured, by the municipal law, but it is not derived from it--nor can the municipal law rightfully take it away. It is an original right of human nature, like the right speech--the right to enjoy life, liberty, and religion--the right to keep and bear arms--and the right of self-protection. And it is as an original right, existing prior to the constitution, that the clause quoted from the constitution, recognizes and guaranties it. . . ."[Pg. 4]

". . . The right of men, then, to enter into obligatory contracts, and to have the benefit of them, is guarantied, not only by the national constitution, but also by many, if not all, of the state constitutions. It is, in short, a fundamental principle in our systems of government--as much so, as the right of speech, or the right to life and liberty, or the free exercise of religion, or the right to keep and bear arms, or the right to acquire property."[Pg. 5]

". . . If it be said that the word "contract," in the phrase "obligation of contracts," is to be understood in technical sense, and to mean nothing more than legislatures may please to allow it to mean, it may just as well be said that the terms freedom of speech, free exercise of religion, right to keep and bear arms, right to acquire property, and right to enjoy life and liberty, are all to be taken in a technical and limited sense, and to mean nothing more than such a legal freedom of speech, such a legal free exercise of religion, such a legal right to keep and bear arms, such a legal right to acquire property, and such a legal right to enjoy life and liberty, as legislatures may see fit to establish. Such constructions would abolish every bill of rights in the union. It would take from the people all the security afforded by their constitutions for the enjoyment of their natural rights. It would abolish all restraints upon the legislative power, and place every right of the individual at its disposal."[Pg. 15]

- [CONSTITUTIONAL LAW, RELATIVE TO CREDIT, CURRENCY, AND BANKING, BY LYSANDER SPOONER. PRINTED BY JOS. B. RIPLEY, WORCESTER, MASS. Sold by M.D. Phillips, Worcester, Mass. 1843.]

"a manner consistent with natural rights--as, for example, in defence of life, liberty, chastity"

[Pg. 66]
   "The second amendment to the constitution declares that "the right of the people to keep and bear arms shall not be infringed."
   "This right "to keep and bear arms" implies the right to use them--as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights--as, for example, in defence of life, liberty, chastity, &c. Here is an innocent and just meaning, of which the words are susceptible; and such is therefore the extent of their legal meaning. If the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also for the criminal purposes of aggression--for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied. The mere verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But the legal implication gives only an authority for their innocent use. And why? Simply because justice is the end of all law--the legitimate end of all compacts of government. It is itself law; and there is no right or power among men to destroy its obligation."

[Pg. 98]
""A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not he infringed."

"These provisions obviously recognize the natural right of all men "to keep and bear arms" for their personal defence; and prohibit both Congress and the State governments from infringing the right of "the people"--that is, of any of the people to do so; and more especially of any whom Congress have power to include in their militia. This right of a man "to keep and bear arms" is a right palpably inconsistent with the idea of his being a slave."--Lysander Spooner, [The unconstitutionality of slavery:Iincluding Parts First and Second. Boston: Published by Bela Marsh, No. 25 Cornhill. 1847. (Lysander Spooner (January 19, 1808 – May 14, 1887) was an American individualist anarchist, political philosopher, Deist, Unitarian abolitionist, and supporter of the labor movement, legal theorist, and entrepreneur of the 19th century. He is also competed with the U.S. Post Office, with his American Letter Mail Co., which was forced out of business by the United States government).

Pro Populo Adversus Tyrannos = The sovereign right and power of the people over tyrants

"No man that knows any thing, can be so stupid to deny that all men naturally were born free, being the image and resemblance of God himself, and were by privilege above all the creatures born to command and not to obey. And that they lived so, till from the root of Adam's transgression, falling among themselves to do wrong and violence; and foreseeing that such courses must needs tend to the destruction of them all, they agreed by common league to bind each other from mutual injury, and jointly to defend themselves against any that gave disturbance or opposition to such agreement. Hence came cities, towns, and commonwealths. And because no faith in all was found sufficiently binding, they saw it needful to ordain some authority, that might restrain by force and punishment what was violated against peace and common right: the authority and power of self defence and preservation, being originally and naturally in every one of them, and united in them all for ease and for order. And lest each man should be his own partial judge, they communicated and derived either to one, whom for the eminency of his wisdom and integrity they chose above the rest; or to more than one, whom they thought of equal deserving. The first was called a king, the other magistrates. Not to be their lords and masters,--(though afterwards those names in some places were given voluntarily to such as had been authors of inestimable good to the people;)--but to be their deputies and commissioners, to execute, by virtue of their entrusted power, that justice which else every man, by the bond of nature and of covenant, must have executed for himself and for one another. And to him that shall consider well, why among free persons one man by civil right should bear authority and jurisdiction over another, no other end or reason can be imaginable. These for a while governed well, and with much equity decided all things at their own arbitrament; till the temptation of such a power left absolute on their hands, perverted them at length to injustice and partiality. Then did they who now by trial had found the danger and inconveniences of committing arbitrary to any, invent laws either framed or consented to by all, that should confine and limit the authority of whom they chose to govern them, that so man of whose failing they had proof, might no more rule over them;--but law and reason abstracted as much as might he from personal errors and frailties When this would not serve, but that the law was either not executed or misapplied, they were constrained from that time, the only remedy left them; to put conditions and take oaths from all kings and magistrates at their first instalment, to do impartial justice by law, who upon those terms and no other received allegiance from the people,--that is to say, bond or covenant to obey them in execution of those laws, which they the people had themselves made or assented to. And this oftentimes with express warning, that if the king or magistrate proved unfaithful to his trust, the people would be disengaged. It being thus manifest, that the power of kings and magistrates is nothing else but what is only derivative, transferred, and committed to them in trust for the people, to the common good of them all; in whom the power yet remains fundamentally, and cannot be taken from them without a violation of their natural birthright. Hence Aristotle and the best of political writers have defined a king,--him who governs to the good and profit of his people, and not for his own ends. To say, as is usual, the king hath as good right to his crown and dignity as any man to his inheritance, is to make the subject no better than the king's slave, his chattel, or his possession, that may be bought and sold. To say kings are accountable to none but God, is the overturning of all law and government. It follows, that the king or magistrate holds his authority of the people, both originally and naturally, for their good in the first place, and not his own; then may the people, as oft as they shall judge it for the best, either chuse him or reject him, retain him or depose him, though no tyrant; merely by the liberty and right of free-born men to be governed as seems to them best. Since kings, and that by scripture, boast the justness of their title by holding it immediately of God, yet cannot shew the time when God ever set on the throne them or their forefathers, but only when the people chose them;--why by the same reason, since God ascribes as often to himself the casting down of princes from the throne, it should not be thought as lawful and as much from God, when none are seen to do it but the people, and that for just causes. For if it must needs be a sin in them to depose, it may as likely be a sin to have elected. And contrary, if the people's act in election be pleaded by a king as the act of God, and the most just title to enthrone; him why may not the people's act of rejection be as well pleaded by the people as the act of God, and the most just reason to depose him? So that we see the title and just right of reigning or deposing, in reference to God, is found in scripture to be all one, visible only in the people, and depending merely upon justice and demerit. Thus far hath been considered briefly the power of kings and magistrates, how it was and is originally the people's; and by them conferred in trust only to be employed to the common peace and benefit; with liberty, therefore, and right remaining in them, to reassume it to themselves, if by kings and magistrates it be abused; or to dispose of it by any alteration, as they shall judge most conducing to the public good.--(Pro Populo Adversus Tyrannos, 1689.)

The citizens are the safeguards of a free state. Their right to keep and bear arms has never been infringed"

Signed by order

HENRY RUTGERS, Chairman
OLIVER WOLCOTT, Secy.

 

   "This meeting being adjourned from 8th to the 10th, the following preamble and resolutions were read and adopted:

   "Fellow Citizens--Once more we engaged in a war with a powerful nation.
   "The ocean is denied to us; our waters violated; our land is invaded; hostile threaten to convert our habitations to heaps of ruins.
   "We are called upon to save our possessions from spoil and destruction; to secure persons from slavery and death; to protect our families against outrage and violence; guard our institutions from assault and overthrow; to defend by freeborn valour our dear-bought independence.
   "The lawful authorities, aware of this condition of things, have made provision to it. The national government has our security by fortification, troops, and floating force. The state has extended care, and caused other works of defence to erected. The common council of the city has laboured to insure our safety. It only remains that the sons of liberty come forth in their might, and demonstrate that in a contest for all that is near and dear to them, they are invincible.
   "Our regular regiments are already at their stations. The organized militia will them on the shortest summons. The several corps of volunteers are inflamed with patriotic ardour. To these bands, other military associations will be added, composed those who enjoy honourable exemptions from ordinary service, but who will come forward on this trying occasion.
   "This meeting is called for the purpose enabling us to renew our pledge to support the constitution; to invigorate the laws; to aid with our best efforts the administration of our beloved country; to see that it be not approached by spies and emissaries; to defend the great interests of the union with our treasure and our blood.
   "It is our glory and our boast that we are freemen. Our constitution and government are acts of free and unbiased choice. They are ours and we will never abandon them.
   "The citizens are the safeguards of a free state. Their right to keep and bear arms has never been infringed. We will use these weapons resolutely in support of our privileges; with these we will manfully oppose the enemy who shall presume to invade them...."

- The Examiner, NEW YORK SATURDAY AUGUST 13, 1814, Pg. 209 [THE EXAMINER: CONTAINING POLITICAL ESSAYS ON THE MOST IMPORTANT EVENTS OF THE TIME; PUBLIC LAWS AND OFFICIAL DOCUMENTS. BARENT GARDENIER, ESQ. EDITOR. "Thy spirit, Independence! let us share: Lord of the lion heart, and eagle eye! Thy steps we follow, with our bosoms bare, Nor heed the storm that howls along the sky." Smollett VOLUME II. FROM MAY TO OCTOBER, 1814. NEW YORK: PRINTED AND PUBLISHED BY THE EDITOR. NO. 34, CEDAR STREET.

[Henry Rutgers was a United States Revolutionary War hero and philanthropist from New York City, New York. His donations reopened Queen's College in New Brunswick, New Jersey. Which is now named after him; "Rutgers, The State University of New Jersey."] 

[Oliver Wolcott was a signer of the United States Declaration of Independence as well as the Articles of Confederation as a representative of Connecticut. He was the fourth Governor of the state of Connecticut.]

"The inhabitants of the United States have immemorially claimed the right of possessing arms for the defence of their houses, their lives, and property"

8th Congress 2nd Session
No. 94

ARMING OF MERCHANTMEN.

COMMUNICATED TO THE SENATE, DECEMBER 28, 1804.

To the Senate and House of Representatives of the United States of America in Congress assembled, the memorial of the Chamber of Commerce of the City of New York respectfully showeth:

"...A defence by means of private armed vessels, under proper regulations, is not only reasonable, but, from the nature of things, is that kind of defence which ought to excite the least suspicion; it being certain that the degree of force employed and exercised will never exceed the measure required by necessity, as it will be regulated by calculations of commercial advantage to individuals, and in no degree by views of political aggrandizement. Your memorialists might conclude their petition with these observations, but the great importance of the proposed law, not only in respect to the revenue and commercial prosperity of the United States, but as it may affect the right of every citizen to keep and bear arms, will, it is hoped, be their excuse for subjoining a few additional observations on the subject. The inhabitants of the United States have immemorially claimed the right of possessing arms for the defence of their houses, their lives, and property; this privilege has neither been surrendered, nor abridged: and every citizen, whether at home or upon the ocean, has believed that he might lawfully carry arms, in self defence. If this right be deemed important in the bosom of the State, where the laws and magistrates are ready to protect the citizen, how much more important must it be considered upon the high seas, where every nation has a common jurisdiction, but no nation an exclusive one; where every nation is bound to afford protection to the persons and property of its citizens, but no nation has magistrates to grant it; where aggression is most frequent, and the means of defence most necessary!"

   "Your memorialists are duly sensible that Congress possesses the "power to regulate commerce with foreign nations, among the several States, and with the Indian tribes;" but, with all deference, they presume to inquire, whether, under this power, a law may be enacted, by which the citizens of the United States shall be deprived of a right, which has been supposed to be secured to them by the constitutions of the several States?

   "Your memorialists forbear to add, but humbly request, that no law may be passed to prevent private vessels from sailing in an armed condition; or, in case a law on this subject is deemed necessary, that its provisions may be conformed, to the principles contained in die present memorial. And as in duty they will ever pray.

By order of the Corporation of the Chamber of Commerce, JOHN MURRAY, President. New York, December 21, 1804.

[Class IV. Commerce and Navigation. American State Papers. Documents, Legislative and Executive, of the Congress of the United States, FROM THE FIRST SESSION OF THE FIRST TO THE THIRD SESSION OF THE THIRTEENTH CONGRESS, INCLUSIVE: COMMENCING MARCH 3, 1789, AND ENDING MARCH 3, 1815. SELECTED AND EDITED, UNDER THE AUTHORITY OP CONGRESS, BY WALTER LOWRIE, Secretary of the Senate, AND MATTHEW ST, CLAIR CLARKE, Clerk of the House of Representatives. Volume VII. WASHINGTON: PUBLISHED BY GALES AND SEATON. 1832.] 

"a right which will be assumed whether the law preserves it or not"

"But even suppose the sentiment of hostility to the militia should dominate the Legislature for years, and appropriations should be withheld until the Missouri National Guard dies of inanition, what then? One of three things must happen in times of riot. The Governor of the State will be compelled to make requisition upon the President of the United States for national troops--a ludicrous result for those who hate military power--or the police must expand in numbers and increase in efficiency until it equals a militia in power, or else an irregular police or militia will be formed by the citizens, under the name of "regulators," "friends of law and order," or any of the names honest citizens are wont to take when the weakness or pusillanimity of their government has forced them to assume extraordinary powers. Order will be restored somehow, militia or no militia, police or no police, law or no law. This needs no proof. It is a settled fact in the history of civilized communities. If a Governor like the present incumbent in Missouri should be as slow in making requisition for United States troops as he was in calling out troops last year, and deputy-sheriffs should prove as ineffective, the right of individuals to combine in self-defence would surely be put to the test. Happily in Missouri this right is guaranteed by the State Constitution, for, although it may seem superfluous to preserve by law a right which will be assumed whether the law preserves it or not, it is as a matter of fact, an immense assistance in the assumption of extraordinary powers to know that they may be assumed lawfully. For this reason the clause in the Constitution of Missouri which provides "that the right of the people to bear arms in self-defence and in defence of the lawful authority of the State cannot be questioned," might well become a rallying-point for the orderly elements of the State. The people may bear arms and may use them in self-defence and defence of lawful authority. Nor is this right limited by the statute against carrying concealed weapons, for that makes an express exception in favor of carrying weapons in defence of person, home, or property. The Missourian who carries a weapon when threatened by such letters as the Knights of Labor sent the engineers and firemen of the Missouri Pacific Railroad last year, is acting under the law, and, what is more, is acting under a right which the Legislature could not take away from him.
   But far more important than the right of self-defence is the right to bear arms in defence of the lawful authority of the State. This right, taken in connection with statutory provisions for suppressing riots by the civil authorities, renders it possible for the indignation of law-abiding citizens against mobs and rioters to take formidable and effective shape. Besides the usual authority vested in the mayor of any town or the sheriff of any county to call upon citizens to assist in suppressing a riot, and providing that the pay of citizens so employed shall be the same as that of militia in active service, there is another remedy, without waiting for the initiative from sheriff or mayor. If a large body of men are assembled in a threatening or riotous manner, a private citizen may give notice of it to the Mayor, a member of the Board of Aldermen, or Legislative Council of any city or town, or to a sheriff, coroner, or marshal, or any of their deputies, or to any justice of the peace. It is then the duty of the officer so notified to approach the rioters as nearly as he can with safety, and command them to disperse, and, if they do not comply, to command all bystanders to arrest them. Now, though the mayor of a city may refuse to do his duty, it would be strange if one decent man among all the officers enumerated could not be found, especially as a refusal to act after notice is visited with a fine not exceeding $500; and, the right officer once found, citizens armed to the teeth could accompany him for the constitutional purpose of defending lawful authority, and, when called upon by the officer to arrest rioters refusing to disperse, could use all due force to accomplish the arrest. If the citizens should kill or wound any of the rioters in their endeavors to make arrests, they would be held guiltless, while the death or injury of one of the citizens would make all the rioters answerable for it.
   This method of suppressing a riot does not appear to be an impracticable one. When, during the Southwestern strike of last year, the large railroad yards in St. Louis were tilled by the Knights of Labor on the pretence of protecting them, the corporation might have called upon a friendly justice of the peace to undertake the duty of warning them away, and might have sent armed Pinkerton men with him. If the Pinkerton men were citizens of the State, their right to bear arms in such a case "could not be questioned," and, if citizens of another State, the Constitution of the United States would clothe them with the privileges of citizens of the State. In this way, without the delay and difficulty of getting special police licenses, the corporation would obtain a disciplined force acting under law. Throughout the Southwestern strike the Knights showed a wholesome fear of coming into conflict with the authorities of the United States, undoubtedly because they had been taught by experience that the United States could legally use force, and would use it if necessary. A few trials against armed bodies of men acting under the State law would give them such a respect for its civil authorities that they would welcome back the militia with joy."

- [The Nation A WEEKLY JOURNAL DEVOTED TO POLITICS, LITERATURE, SCIENCE, & ART VOLUME XLIV FROM JANUARY 1, 1887, TO JUNE 30, 1887 NEW YORK THE EVENING POST PUBLISHING COMPANY 1887, April 7, 1887, Pg. 289]