Friday, May 31, 2013

"Without arms, they cannot vindicate their freedom"








Special Term, appointed by Act of Assembly, 

changing the venue from Jefferson to Mercer Circuit Court. 
Hon. John L. Bridges, Judge. 
Edward J. Bullock, Prosecuting Attorney.

 Monday, March 4th, 1839.

.Colonel Robertson then rose and addressed the court and jury as follows:--

...My object will be to present the case to you, in somewhat of a general aspect, for after all, it will be found that the great principles involved are but few, and these few are of well settled law. I that the able counsel. on the part of the prosecution, will endeavor to perplex you with almost countless cases from high authorities; but when these cases are well examined, it will be found that they are perverted and misapplied; and, in no degree, do they affect the right of self-defence, possessed by every individual in this country; and upon which we rest this cause....[Pg. 52]

...This right of self defence, is not a right derived from municipal law, it is not a thing that has been taught us, we have not learned it from books; it is principle of our nature, born with us, and has grown with us, in feeling and in strength. It is the most important right which belongs to man by the law nature; it is his birth right, of which human power cannot deprive him, and which man, when he entered into the social compact, reserved to himself to posterity--municipal law is a consequence not a cause, of the social compact. Before man entered into a state of society, each one judged of the wrongs which he supposed he had sustained, and took redress in that mode and manner which inclination and strength enabled him to do: this state things could not long endure, for the strong would soon gain possession of all that might belong to weak; and thus, all the principles of right and justice were broken down and destroyed. To remedy this, a plan was conceived by individuals of what is called the social compact. This social compact was an agreement amongst all, that the general affairs of mankind should be regulated by law-makers, chosen or appointed in such mode as might be from time to time prescribed by supreme authority. The great object in view, at the time of agreeing to this social compact was, to secure individuals in the exercise of certain great and inalienable rights which belong to man as his birth-right, and of which posterity could not be deprived. Amongst these inalienable rights will be found the right of every man to defend his person, his property, and his habitation. Hence we find that municipal law, in all civilized countries, is constantly throwing new guard's around these rights….[Pg. 55]

...The Hon: Judge Rowan then addressed the Jury

   Gentlemen Of The Jury:— 
    I solicit your already jaded patience, I will not say for a short time, for I know not how long it may employ me, to make the appropriate comments, upon the facts, the law, and the arguments of counsel in this case. I will promise you, however, not to be unnecessarily tedious. I have, in the patience and attention you have already displayed, a pledge that you will bear with me for at least a moderate length of time. My unfortunate clients, (confiding alike in their own conscious innocence, and your intelligence and unbiased state of feeling,) were willing that you might have decided their case without argument; but their will did not prevail. The Commonwealth's Attorney, Mr. Bullock, (in whom I am proud to find the son of honored parents, whose friendship I enjoyed in days past,) has evinced an entire competency to the duties of the station, with which he has been recently honored, and which, permit me to say, he honors, by the commendable candor and high talents, with which he performs his official duties. I regret that I cannot speak in the same commendatory terms of the candor of his aged and very highly talented adjunct. That gentleman represents the vengeful feelings of the near relations of the ill-fated Rothwell and Meeks, by whom he has been employed to convict, if possible, the accused. He has just closed a philippie of four hours against them, as remarkable for vigor of intellect, as for vehemence and impassioned zeal. He implores you, with great earnestness, to check (by a verdict of conviction in this case) the habit of wearing arms, and especially Bowie-knives, which has, as he says, latterly so much prevailed, and multiplied assassinations throughout our country. He considers the frequency of these melancholy incidents as infallible evidence of the growing degeneracy of public morals, indicating the rapid decline, and eventual subversion of our free institutions.

    It is the corruption of the people, he tells you, that saps the foundation of a free government; and he refers to tho history of Greece and Rome to confirm and illustrate his doctrine. He asserts that he has set, and that all good men ought to set their faces against the degeneracy of the times.

    Gentlemen of the Jury, I concur with him in the belief, that corruption is the great destroyer of free governments; but do not believe with him, that its prevalence is so alarmingly evinced by the incidents to which he has so glowingly referred. While corruption displays itself upon the surface only of the body politic, it is, like boils on the surface of the natural body, but an evidence of the exertion of the recuperative energies to throw off the pucant matter.

    The right of the people to carry arms, is little less than identic with their freedom. Without arms, they cannot vindicate their freedom. Without the right to possess, and wear them, they will very soon be without the spirit to use them, even in defence of their liberty. I feel no apprehension for the liberty of my country from that source. I fear nothing from the carrying of Bowie knives—brave men do not fear them, and cowards seldom use them. It is wrong to reason against the use of any good thing, from its occasional, or even frequent misuse. While our institutions are pure, and especially our Courts of Justice, we have nothing to fear; they will vindicate the just use, and punish the misuse of Bowie-knives or any other arms, which our free citizens may choose to wear. But I can refer him to an instance of the growing degeneracy of morals, more recent, and greatly more alarming, than any, or than all the instances he has named. The recent instance, to which I allude, of alarming degeneracy in the public mind and morals, is the composure, and even complacency, with which we have listened in the temple of justice, to the mercenary ebullitions, and sanguinary efforts, of the gentleman himself. It is in proof that he has received from Mr. Redding, the brother-in-law of the unfortunate Rothwell, a fee of $1000, to convict, if possible, the accused....

...But they carry bowie-knives, and the blade of bowie-knife is so long, and so broad, and the edge sharp, and it has such a terrific glitter, that they must be a bloody-minded, hot headed people. Besides, they fight the most desperate duels. Gentlemen, arms of some kind are worn more or less [in] all countries. They are in all countries used by [the] coward to assassinate, and by the brave for defence against assassins. If you want to put down use of bowie-knives, extinguish robbers and assassins, and the use will fall of itself. But as long good men may be assailed in their persons or property, by dishonest and dastardly men, the latter must be allowed the appropriate means of defence--and the arms for defence cannot be considered appropriate, unless they are at least equal in efficiency, to those of the assailants.

   But the wearing of arms whether bowie-knives, pistols, or whatever else, does not at all alter the rights of the citizens. For assault they should not be wanted, for defence, when occasion requires, they are of great value. The right of self-defence remains, under all circumstances the same. It is a primary element of our identity. Nature gave it, art cannot take it away--as derived from nature, it is limited to the use of no particular species of arms, and embraces every species. It is limited only by the obligation of benevolence on the part of the assailed, towards assailant--and benevolence does not require him love his fellow man more than himself. A man's right of self-defence does not result from the degree of criminality in the one who assails him. It is personal, inherent, and inseparably with his own exclusive individuality--a person may in many instances exert this right to the destruction of an innocent man. A madman (for instance) who is incapable of crime, but capable physically, of destroying a man, may be slain justifiably, in the exertion of this right--so may a somnambulist, under the same circumstances. In the case of a ship-wreck, when two of the passengers are struggling for a plank, which will sustain but one of them; one may justifiably kill the other to save his own life. This, gentlemen, is the law of nature, in relation to all animal existences, and the municipal law, in relation to man. See Grotius, p. 25.

    Then, gentlemen, why this denunciation of bowie-knives and pistols, for it can make no odds, if the killing was done justifiably, whether it was with the one or the other, or with a simple jack-knife. The question is not, whether either, or what weapon was used, but whether with, or without weapons, the killing was justified, or excused by the law--all that has been said, therefore, by Mr. Hardin upon the subject of carrying and employing arms is foreign from this case. It must have been intended ad captandum; or rather ad exitandum. Equally foreign from the case is all that he has said about Mississippi, and the Mississippians--whether the killing was done by a citizen of Kentucky, or by citizens of any other State. The question still is was the killing criminal, or innocent? That it was innocent in these gentlemen, because necessary to protect themselves from a band of conspirators--from a mob-- we have urged, and, I am now insisting.

    But, gentlemen, as Mr. Hardin has spoken so much at large upon the depraving consequences of the habit of carrying arms, let me give you my opinion upon that subject. I am now an old man--I was in this country when every man carried his rifle and his tomahawk, and his knife, wherever he went. He carried his arms to defend himself against the Indians, whose incursions were constantly apprehended--and during all that time there were no homicides, no man killed by his fellow--no man apprehended danger from his fellow-man. How happened this? The rifle, the tomahawk, and the scalping-knife, were, at least, as formidable instruments of death, and as depraving as the bowie knife and pistol--yet it never entered the mind of any one that men were more depraved, or more ferocious by the practice of carrying arms. The true reason is that there was not then in Kentucky a single coward. The men, aye, and women too, were all brave--a coward could not remain in Kentucky. The danger from the Indians was too continuous, imminent and proximate. He could not breast it. He could not bear the scorn and derision of the men and of the women, and children too, and had to leave the country.
    After the Indian war had closed--which was in 1794--the people of Kentucky laid aside their arms. People from every quarter rushed in crowds into Kentucky, and jars and bickerings resulted for a time, from the intercourse of people of different habits. They were settled, mostly, by an appeal to the prowess of pugilism. There were some suits of slander, and of assault and battery. Kentuckians gradually amalgamated with the immigrants, and we got along very well for many years--among the professional men, there was occasionally a duel.--There were no homicides, no assassinations, until the Legislature of Kentucky, in an evil hour, influenced, unconsciously, by a mistaken policy, enacted what is generally denominated the anti-dueling law. That law required every officer in the State, civil and military, from a constable up to the governor, including members of the legislature, and lawyers, and from a sergeant to a major-general, to swear solemnly that he would neither give nor accept a challenge to fight with any deadly weapon within, or out of the State of Kentucky. It was a law most evidently for the benefit of cowards-- who, without the oath, would never have fought nor accepted a challenge to fight a duel. But who by the administration of the oath were palmed upon the community, and upon themselves too, as men of spirit. Before the passage of this law, a man who might chance to be irritated with another, would, before he published a libel, or slander against him, pause and reflect, that if he persisted, he would be challenged, and must either fight, or be disgraced, and would wisely desist. He knew that the same consequence would follow from any personal violence to which his irritation might prompt him, and the effect was the same. But upon the passage of this law, dastards, when they had taken the oath, or aspired to offices which they could not fill, without taking the oath, filled their bosoms with dirks and their pockets with pistols, annoyed society with the insolence of mock heroism, insulted their brave competitors, and when about to be chastised, retreated to the wall, and killed the gentlemen they had wantonly insulted, a-la-mode Mr. Hardin's law. The vicious and depraved portion of the people having thus licensed to wear arms, the remaining portion were constrained to wear them in self-defence. The consequence is, that the community has been very much annoyed, and vulgarized by the short sighted policy of the Legislature. Sirs, the pistol was in the times I speak of, and had been ages throughout the civilized world, not only most effectual polisher of manners and morals, but a most efficient, though sad peacemaker. It held all who aspired to be gentlemen, and were of amenable to its tribunal, under a strong recognizance for their good behaviour. It is a tribunal instituted by nature, as an auxiliary, to the political institutions of society. It was a misdirected humanity, which influenced Kentucky, and States of the Union, who following her example, have attempted to suppress it. The object was to prevent the effusion of blood. The effect has to increase it tenfold. Just as the legislation to repress gaming by fines and penalties, has it one hundredfold, when a short act, making all sums fairly won, recoverable by law, would have diminished the evil, and improved the morals the people. Do not mistake me gentlemen, as to dueling; I am no advocate for it, I would not sanction it by law--but I would reluctantly connive at it, as an evil less, greatly less, than that legion evils which supply its place. As I prefer a high honorable, to a low and degraded spirit--fair, open, manly, and honorable conflict, to dastardly and cruel assassination, so I would leave it, as and all wise nations have it, by reluctant connivance. Perhaps my notions upon these are erroneous, but they are my deliberate views, and I do not wish to conceal them. Every duel is a lesson, more or less impressive, as it shall in favor of good morals, and polished manners--and although the fall of one, or both of the combatants must inflict pain and sorrow upon their immediate connexions, yet the effect is beneficial to the community in every view, and strengthening to virtue. The price paid by the community is very great, but the purchase is inestimably valuable. The good effects of this lamentable practice, cannot be obtained at a less price, nor in any other known mode--nor can it be suppressed by human legislation...."[Pgs. 106-123]

...He cannot hope to disparage the accused before any rational tribunal by inveighing against the habit of wearing arms. Strangers and travellers have been allowed, in all countries and by all people, to wear them--and even citizens of the meekest and purest characters have worn them in their own country, aye, and used them too, upon occasions far less urgent than that of the accused. It is wise sometimes to wear them in large commercial cities. Even in Louisville it is prudent for strangers to wear arms. The knives of the defendants saved their lives at that place beyond all doubt. Now the resident population of that city is as worthy, as peaceable, and as orderly as the people of any place whatever; but there is there, as in all other commercial cities, a floating mass of people who prowl the streets, especially at night, from whom all who
might be supposed to have money or other valuables have much to apprehend. When I say the wise and meek have carried arms, and used them too, I allude to the Apostles: you all remember that the apostle Peter drew his sword and smote the ear of off the high priest. This is an instance in which arms were not only worn, but used to protect a friend.

   Gentlemen of the Jury--I repeat what I said before, that the wearing of arms by citizens within the jurisdiction of their state, and in the bosom of society, is an evidence of the weakness and degeneracy of their government. The object of government is to protect the good and the virtuous against the bad and the vicious portion of mankind. When the good wear arms it is evidence that they cannot confide in the government for protection, and are obliged to rely upon their own vigilance and energies to save themselves from the bad. And whenever good men use their arms efficiently and successfully, and tragically if you please, against the mob or a conspiracy by which they are assailed, instead of the animadversion of the government they are entitled to its thanks and its gratitude. Sirs, I speak the language of soberness and truth when I tell you that the fall of Meeks and Rothwell, (which we all deplore,) by the arms of the assailed, has done more, by ten-fold, to repress and put down mobs and conspiracies in Louisville, and throughout the state of Kentucky, than the execution of those ill fated men by the government for the killing of one or all of the accused, had the accused fallen by their hands. There would be no mobs if it were certain that one or more of those who form the mob would certainly be killed. The principle of combination in a mob is, as I have before told you, COWARDICE. Each would fear that he might be slain, and thus, and for the same reason, every other man of them would abstain from the combination. Those assailed therefore by a mob should be considered by the people of every state as authorized by the government to kill as many as possible of the assailants; and so indeed they are to be considered, under a wise and just interpretation of our laws, which, when they cannot protect the citizen leave him to protect himself under the paramount authority of the law of nature....[Pg. 130]

 (John Rowan, (July 12, 1773 – July 13, 1843), was a 19th-century politician and jurist from the U.S. state of Kentucky. In 1802, Governor Christopher Greenup appointed Rowan Secretary of State, and he went on to serve in the Kentucky House of Representatives and the U.S. House of Representatives. In 1819, Rowan was appointed to the Kentucky Court of Appeals, serving until his resignation 1821. He was again elected to the state legislature in 1823. With the state reeling from the Panic of 1819, Rowan became the leader of a group of legislators dedicated to enacting laws favorable to the state's large debtor class. He believed the will of the people was sovereign and roundly denounced the Court of Appeals for striking down debt relief legislation as unconstitutional. He led the effort to impeach the offending justices, and when that effort failed, spearheaded a movement to abolish the court entirely and replace it with a new one, touching off the Old Court – New Court controversy. New Court partisans in the legislature elected Rowan to the U.S. Senate in 1824. After his term in the Senate, Rowan returned to Kentucky, where he served as the first president of the Louisville Medical Institute and the Kentucky Historical Society. In 1840, he was appointed to a commission to prosecute land claims of U.S. citizens against the Republic of Mexico, but resigned his commission in 1842 because of failing health.)

"Then it is their constitutional right to arm themselves"

Letter from Daniel Dunklin, Governor of the State of Missouri, to Colonel J. Thornton,

City of Jefferson, June 6, 1834.

   Dear Sir—I was pleased at the receipt of your letter, concurred in by Messrs. Reese, Atchison and Doniphan, on the subject of the Mormon difficulties. I should be gratified indeed if the parties could compromise upon the terms you suggest, or, indeed, upon any other terms satisfactory to themselves. But I should travel out of the line of strict duty, as chief executive officer of the government, were I to take upon myself the task of effecting a compromise between the parties. Had I not supposed it possible, yes, probable, that I should, as executive of the state, have to act, I should, before now, have interfered individually in the way you suggest, or in some other way, in order if possible to effect a compromise. Uncommitted as I am to either party, I shall feel no embarrassment in doing my duty—though it may be done with the most extreme regret. My duty in the relation which I now stand to the parties, is plain and straightforward. By an official interposition I might embarrass my course, and urge a measure for the purpose of effecting a compromise, and [if] it should fail, and in the end, should I feel it my duty to act contrary to the advice I had given, it might be said, that I either advised wrong, or that I was partial to one side or the other, in giving advice that I would not as an officer follow.

   A more clear and indisputable right does not exist, than that of the Mormon people, who were expelled from their homes in Jackson county, to return and live on their lands; and if they cannot be persuaded, as a matter of policy, to give up that right, or to qualify it, my course, as the chief executive of the state, is a plain one. The constitution of the United States declares "that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states." Then we cannot interdict any people, who have a political franchise in the United States, from immigrating to this state, nor from choosing what part of the state they will settle in, provided they do not trespass on the property or rights of others. Our state constitution declares that the people's "right to bear arms, in defense of themselves and of the state, cannot be questioned." Then it is their constitutional right to arm themselves. Indeed, our military law makes it the duty of every man, not exempted by law, between the ages of eighteen and forty-five, to arm himself with a musket, rifle, or some firelock, with a certain quantity of ammunition, etc.; and again, our constitution says, "that all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences."

   I am fully persuaded that the eccentricity of the religious opinions and practices of the Mormons is at the bottom of the outrages committed against them. They have the right constitutionally guaranteed to them, and it is indefeasible, to worship Joe Smith as a man, an angel, or even as the only true and living God, and to call their habitation Zion, the Holy Land, or even heaven itself. Indeed, there is nothing so absurd or ridiculous that they have not a right to adopt as their religion, so that in its exercise they do not interfere with the rights of others.

   It is not long since an impostor assumed the character of Jesus Christ and attempted to minister as such; but I never heard of any combination to deprive him of his rights.

   I consider it the duty of every good citizen of Jackson county and the adjoining counties to exert himself to effect a compromise of these difficulties; and were I assured that I would not have to act in my official capacity in the affair, I would visit the parties in person and exert myself to the utmost to settle it. My first advice would be to the Mormons, to sell out their lands in Jackson county, and to settle somewhere else, where they could live in peace, if they could get a fair price for them, and reasonable damages for injuries received. If this failed, I would try the citizens, and advise them to meet and rescind their illegal resolves of last summer, and agree to confirm to the laws in every particular, in respect to the Mormons. If both these failed, I would then advice the plan you have suggested, for each party to take separate territory, and confine their members within their respective limits with the exception of the public right of ingress and egress upon the highway. If all these failed, then the simple question of legal right would have to settle it. It is this last that I am afraid I shall have to conform my action to in the end, and hence the necessity of keeping myself in the best situation to do my duty impartially.

   Rumor says that both parties are preparing themselves with cannon. That would be illegal: it is not necessary to self-defense, as guaranteed by the constitution, and as there are no artillery companies organized in this state, nor field pieces provided by the public, any preparation of that kind will be considered as without right, and, in the present state of things, would be understood to be with criminal intent, I am told that the people of Jackson county expect assistance from the adjoining counties, to oppose the Mormons in taking or keeping possession of their lands. I should regret it extremely if any should be so imprudent as to do so; it would give a different aspect to the affair.

   The citizens of Jackson county have a right to arm themselves and parade for military duty in their own county independent of the commander-in-chief; but if citizens march there in arms from other counties without order from the commander-in-chief or some one authorized by him, it would produce a very different state of things. Indeed, the Mormons have no right to march to Jackson county in arms, unless by order or permission of the commander-in-chief; men must not "levy war" in taking possession of their rights, any more than others should in opposing them in taking possession.

   As you have manifested a deep interest in a peaceable compromise of this important affair, I presume you will not be unwilling to be placed in a situation in which, perhaps, you can be more serviceable to these parties. I have therefore taken the liberty of appointing you an aid to the commander-in-chief, and I hope it will be agreeable to you to accept. In this situation you can give your propositions all the influence they would have were they to emanate from the executive, without committing yourself or the commander-in-chief, in the event of failure. I should be glad if you, or some of the other gentlemen who joined you in your communication, would keep in close correspondence with these parties, and by each mail write to me.

   The character of the state has been injured in consequence of this unfortunate affair; and I sincerely hope it may not be disgraced by it in the end;

With high respect, your obedient servant,

(Signed) Daniel Dunklin.


"For any lawful purpose--either of business or amusement--the citizen is at perfect liberty to carry his gun"




June, 1843

The offence of riding or going armed with unusual and dangerous weapons, to the terror of the people, is an offence at common law. and is indictable in this State.

A man may carry a gun for any lawful purpose of business or amusement; but he cannot go about with that or any other dangerous weapon to terrify and alarm, and in such manner as naturally will terrify and alarm, a peaceful people.

The declarations of the defendant are admissible in evidence, on the part of the prosecution, as accompanying, explaining, and characterizing the acts charged.

Appeal from the Superior Court of Law of Anson county, at Spring Term, 1843, his Honor Judge Settle presiding.

The defendant was tried upon the following indictment, found in Anson Superior Court:

   The jurors for the State upon their oath present, that Robert S .Huntley, late of the county aforesaid, laborer, on the first day of September, in the present year, with force and arms, at and in the county aforesaid, did arm himself with pistols, guns, knives, and other dangerous and unusual weapons, and, being so armed, did go forth and exhibit himself openly, both in the day time and in the night, to the good citizens of Anson aforesaid, and in the said highway and before the citizens aforesaid, did openly and publicly declare a purpose and intent, one James H. Ratcliff and other good citizens of the State, then and there being in the peace of God and of the State, to beat, wound, kill and murder which said purpose and intent, the said Robert S. Huntley, so openly armed and exposed and declaring, then and there had and entertained, by which said arming, exposure, exhibition and declarations of the said Robert S. Huntley, divers good citizens of the State were terrified, and peace of the State endangered, to the evil example of others in like cases offending, to the terror of the people, against the peace and dignity of the State.

   On the trial, it was insisted on the part of the defendant, that allowing all the facts charged in the indictment to be true, they constituted no offence for which the could be punished as for a misdemeanor. His Honor instructed the jury, that if the facts charged in the indictment proven to their satisfaction, the defendant had been guilty of a violation of the law, and that they ought to render verdict accordingly. In the investigation before the jury appeared, among other things, that the defendant was by several witnesses, and on divers occasions, riding the public highway, and upon the premises of James H. Ratcliff, (the person named in the indictment,) armed with double barrelled gun, and on some of those occasions heard to declare, "that if James H. Ratcliff did not surrender his negroes, he would kill him," at others, "if James H. Ratcliff did not give him his rights, he would kill him," on some, that "he had way laid the house of James H. Ratcliff in the night about day break, and if he had shewn himself he would have killed him, that he shewed once, but for too short a time to enable him to do so, and that he mistook another man for him, and was very near shooting him," On one occasion, that "he would James H. Ratcliff if he did not surrender his negroes, that as for William Ratcliff, he was good for him any how on sight, that there were four or five men whom he meant to kill." All these declarations were objected to by the defendant's counsel, but were received by the court as accompanying and qualifying and explaining the defendant's riding about the county armed with a double barrelled gun.--The jury having found the defendant guilty, his counsel moved for a new trial upon the grounds, first, that the declarations of the defendant before mentioned, were improperly received; secondly, because the judge should have told the jury, that supposing all the facts charged in the indictment to be true, still the defendant was entitled to their verdict. The motion was overruled, and judgment having been pronounced, the delendant appealed.

   Attorney General for the State.

   Winston for the defendant.

   Gaston, [William Joseph]J[ustice]. On the trial it was insisted by the defendant's counsel, and the judge was required so to instruct the jury that if the facts charged in the indictment were all true, they nevertheless constituted in law no offence of which they could find the defendant guilty. His Honor refused this prayer, and instructed the jury, that if the facts charged were proved to their satisfaction, it was their duty to find him guilty. The same ground of defence has been here by way of a motion in arrest of judgment; but we of opinion that in whatever form presented, it is not tenable.
   The argument is, that the offence of riding or going about armed with unusual and dangerous weapons, to terror of the people, was created by the statute of Northampton, 2nd Edward the 3d, ch. 3d, and that, whether this statute was or was not formerly in force in this State, it certainly has not been since the first of January, 1838, at which day it is declared in the Revised Statutes, (ch. 1st, sect. 2,) that the statutes of England or Great Britain shall cease to be of force and effect here. We have been accustomed to believe, that the statute referred to did not create this offence, but provided only special penalties and modes of proceeding for its more effectual suppression, and of the correctness of this belief we can see no reason to doubt. All elementary writers, who give us any information on the subject, concur in this representation, nor is there to be found in them, as far as we are aware of, a dictum or to the contrary. Blackstone states, that "the offence of riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edward 3d, ch. 3d, upon pain of forfeiture of the arms, and imprisonment during the King's pleasure." 4 Bl. Com. 149. Hawkins, treating of offences against the public peace under the head of "Affrays" pointedly remarks, "but granting that no bare words in judgment of law carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray, where there is no actual violence, as where a man arms himself with dangerous and unusual weapons in such a manner, as will naturally cause a terror to the people, which is said to have been always an offence at common law and strictly prohibited by many statutes." Haw. P.C.B. 1, ch. 28, sect. 1. Burns and Tomlyns inform us, that, this term "Affray," is derived from the French word "effrayer" to affright, and that anciently it meant no more, "as where persons appeared with armour or weapons not usually worn, to the terror of others." Burn's Verbo "Affray." Dier do. It was declared by the Chief Justice in Sir John Knight's case, that the statute of Northampton made in affirmance of the common law. 3 Mod. Rep. 117. And this is manifestly the doctrine of Coke, as will be found on comparing his observations on the word "Affray," which he defines (3d Just 158,) "a public offence to the terror the King's subjects, and so called because it affrighteth and maketh men afraid, and is enquirable in a leet as a common nuisance," with his reference immediately thereafter to this statute, and his subsequent
comments on it (3d Inst. 160,) where he cites a record of the 29th year of Edward 1st, shewing what had been considered the law then. Indeed, if those acts be deemed by the common law crimes and misdemeanors, which are in violation of the public rights and of the duties owing to the community in its social capacity, it is difficult to imagine any which more unequivocally deserve to be so considered than the acts charged upon this defendant. They attack directly that public order and sense of security, which it is one of the first objects of the common law, and ought to be of the law of all regulated societies, to preserve inviolate--and they lead almost necessarily to actual violence. Nor can it for a moment be supposed, that such acts are less mischievous here or less the proper subjects of legal reprehension, than they were in the country of our ancestors. The bill of rights in this State secures to every man indeed, the right to "bear arms for the defence of the State." While it secures to him a right of which he cannot be deprived, it holds forth the duty in execution of which that right is to be exercised. If he employ those arms, which he ought to wield for the safety and protection of his country, to the annoyance and terror and danger of its citizens, he deserves but the severer condemnation for the abuse of the high privilege, with which he has been invested.
   It was objected below, and the objection has been also urged here, that the court erred in admitting evidence of the declarations of the defendant, set forth in the case, because those, or some of them at least, were acknowledgments of a different offence from that charged. But these declarations were clearly proper, because they accompanied, explained and characterized the very acts charged. They were not received at all as admissions either of the offence under trial, or any other offence. They were constituent parts of that offence.
   It has been remarked, that a double barrelled gun, or any other gun, cannot in this country come under the description of "unusual weapons," for there is scarcely a man in the community who does not own and occasionally use a gun of some sort. But we do not feel the force of this criticism. A gun is an "unusual weapon," wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements--as a part of his dress--and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.--But although a gun is an "unusual weapon," it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose--either of business or amusement--the citizen is at perfect liberty to carry his gun. It is the wicked purpose--and the mischievous result--essentially constitute the crime. He shall not carry about or any other weapon of death to terrify and alarm, and in manner as naturally will terrify and alarm a peaceful people.
Our opinion is, that there is no error in the sentence below. This decision will be certified to the Superior of Anson accordingly.

Per Curiam.                                                                             Ordered accordingly.    

[Reports of Cases At Law Argued and Determined in The Supreme Court of North Carolina From December Term, 1842, to June Term, 1843, both inclusive. By James Iredell. Vol. III. Raleigh: Published by Turner & Hughes. 1843. Pg. 418-423]

(William Joseph Gaston, (Sept. 19, 1778 - Jan. 23, 1844), was a lawyer, legislator, congressman, and jurist. His most notable decision was in 1834 in the case of State v. Negro Will. Gaston ruled that a slave had the right to defend himself against an unlawful attempt of a master, or agent of a master, to kill him. In the significant case of State v. William Manuel in 1838, his opinion held that a manumitted slave was a citizen of the state and thus entitled to the guarantees of the constitution. This opinion was cited as "sound law" in 1857 by Benjamin R. Curtis of the United States Supreme Court in his dissent in the Dred Scott case. In order for the justices to render better decisions, Gaston purchased a library for the state supreme court while on a trip to New York City in 1835. When Chief Justice John Marshall died that year, it was speculated that Gaston would succeed him on the United States Supreme Court. Which was championed by various state newspapers. Source: From DICTIONARY OF NORTH CAROLINA BIOGRAPHY, edited by EDQ.)

Thursday, May 30, 2013

"Every man has a right to possess military arms, of every sort and kind"

   "The principle of self defence is founded in the very nature and constitution of man. It is inherent in, and inseparable from his character. It it not derived from books, nor from the institutions of civil society, though confirmed by them, It is born and created with us, is coexistent with the first germ of life, conceived, felt, and apparent in the earliest dawn of being, and continues the same through all stages, relations, and conditions of human existence. Without this right, and without its exercise, whenever the occasion arises, man could perform no duties, and enjoy no rights. He could not discharge even those duties imposed on him by a state of nature, neither could he fulfill those superadded obligations, created by, and incurred in a state of society. If this be true, and that it is, is so self evident, that none can or will deny it, the consequence indisputably follows, that man has not only a right, but is in duty bound, a duty, which he owes to himself, to society, and to his Maker, to defend and protect his own life, by all the means in his power, at every hazard and expense to him who shall assault it, and, however disastrous the consequences may be, the same are imputable not to the man assailed, but to him who imposed the necessity...." [Pg. 39-40]

"...When I shall read some of the authorities, which contain law of our own country, you will be convinced, that I have advanced no one principle, which they do not warrant; neither do wish, gentlemen, to extend them beyond their fair import, in behalf of the cause I defend. At present, my only purpose is, propositions so plain, as must command the assent of every human understanding, to efface any erroneous impressions, may have been made in relation to the law on this subject.

   "There is another important charge and prejudice, against my client which I wish, and trust to remove. It is founded on this fact, viz. that he had in his pocket a pistol, with which he preserved his life, against a man, who would have beaten cut his brains with a club--an instrument as effectual, for the purpose of producing death, as a pistol, and, in some views, even more so: for the pistol once discharged of its ball becomes useless, and unless some vital be struck, the advantage is altogether in favour of him holding club. A misplaced blow with a cane, may be corrected, until, with increased skill, and redoubled vigour, the assailant bring victim dying, and dead at his feet. I, however, wish to bring be before you, the single circumstance of wearing a pistol, from any relation to the particular case of the Defendant, or the reason, which had the law been, as is pretended, might and have justified him, in wearing an instrument of this sort. There is no law written or unwritten, no part of the statute or common law of our country, which denies to a man the right of possessing or wearing any kind of arms. In every free society a man is free to do that, which the law does not interdict, nor can the doing that, which is not forbidden be imputed as a crime. But it may be again said, as it has been already, that possessing a pistol is evidence of malice. If it be lawful to possess and wear such an instrument, it would be unjust, in the highest degree, to make it, unconnected with any thing else, evidence to change another act, lawful in itself, into an act criminal and unlawful. For instance, it ought not, and I trust would not, in the opinion of any court or jury, change a justifiable homicide into manslaughter, or manslaughter into murder.

   "I will attempt to illustrate this, by putting one or two cases.--Every man has a right to possess military arms, of every sort and kind, and to furnish his rooms with them. Suppose a man, occupying a house thus furnished, is visited by a neighbour, and after some warm conversation an affray ensues, the owner glances his eye on a sword, instantly snatches it from its place, and destroys his neighbour--But for such possessing the instrument of death, the act would, I presume be manslaughter. Can such possession be so tinctured with criminality, as to aggravate this act, otherwise only manslaughter, to the crime of murder!--If so, do but change the parties: Suppose the visitor to cast his eye on the sword, and Under like circumstances, to use the same instrument, to the destraction of his opponent, he would be guilty of manslaughter.-- Can the mere circumstance of not being owner of the instrument used, alter the act from murder to manslaughter?

   "Further, a man, about to travel on a road, infested with robbers, and knowing it to be lawful to kill another, who attempts to rob him, arms himself with a pistol--on the road, he is attacked by one, who attempts to rob him, and, in the exercise of his rights, uses his pistol and destroys the life of the aggressor. If the having a pistol with him be an argument against his innocence, an act, lawful in itself, will be deemed unlawful, merely because the agent had the precaution to supply himself with the means of doing that, which the law authorised him to do.--Again, suppose a man, having occasion to travel a road, infested by robbers, provides himself with a pistol for the purpose of defending his person and property: on the way to the road, on the road, or on his return from the road, he is met by one, who attacks him, without any intention of robbing, but with a view of assaulting his person only, and the attack is made with so much violence, as to put his life in imminent hazard, whereupon he uses the pistol and destroys the assailant.--Shall you draw from the fact, of his having a pistol, for the just and lawful purpose of defence, against one sort of violence, and using it to another, equally just and lawful, an argument to turn a justifiable homicide into the crime of murder? Surely a doctrine, which leads to such absurd consequences, cannot be founded in truth and justice, and it is on these principles, that this cause must be decided."--Mr. Christopher Gore, Attorney for the Defense, TRIAL OF T.O. SELFRIDGE, ESQ. Aug., 1806. [TRIAL Of THOMAS O. SELFRIDGE, COUNSELLOR AT LAW, BEFORE THE HON. ISAAC PARKER, ESQUIRE. FOR KILLING CHARLES AUSTIN, ON THE PUBLIC EXCHANGE, IN BOSTON, AUGUST 4th, 1806. TAKEN IN SHORT HAND BY T. LLOYD, ESQ. REPORTER OF THE DEBATES OF CONGRESS, AND GEO. CAINES, ESQ. LATE REPORTER TO THE STATE OF NEW-YORK. AND SANCTIONED BY THE COURT, AND REPORTER TO THE STATE. SECOND EDITION. PUBLISHED BY RUSSELL AND CUTLER, BELCHER AND ARMSTRONG, AND OLIVER AND MUNROE. SOLD BY THEM, BY W.M BLAGROVE, NO. 5, SCHOOL-STREET, AND BY THE PRINCIPAL BOOKSELLERS THROUGHOUT THE UNION. Pgs. 41-42]   (Christopher Gore, (September 21, 1758 – March 1, 1827), was a prominent Massachusetts lawyer, Federalist, and U.S. diplomat. He had a successful law practice in Boston, and entered politics in 1788. Serving briefly in the Massachusetts legislature before being appointed U.S. District Attorney for Massachusetts. He was then appointed by President George Washington to a diplomatic commission dealing with maritime claims in Great Britain. He returned to Massachusetts in 1804, and reentered state politics becoming Massachusetts Governor in 1809. He was then appointed to the U.S. Senate by Governor Caleb Strong in 1813.

Did I understand Mr. Gore correctly? EVERY MAN HAS A RIGHT TO POSSESS MILITARY ARMS, of EVERY SORT and KIND? Gore? Now where have I heard THAT name before? .....

"THE right of the citizens to bear arms in defence of themselves and the state, shall not be questioned"

"Rights of Man.
   "WE hold these truths to be self-evident, that all men are created equal; that they are endowed by their creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate, that governments long established should not be changed for light and transient causes; and accordingly all experience has shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.--But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty to throw off such government, and to provide new guards for their future security.--Declaration of Independence.
   "ALL men have certain natural, essential, and inherent rights--among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property; and, in a word, of seeking and obtaining happiness.--Constitution of New Hampshire.
   "ALL power is inherent in the people; and all free governments are founded on their authority, and instituted for their peace, safety, and happiness. For the advancement of those ends, they have, at all times, an unalienable and indefeasible right, to alter, reform, or abolish their government, in such manner as they may think proper.--Constitution of Pennsylvania.
   "THE citizens have a right, in a peaceable manner to assemble together for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address, or remonstrance.--Idem.
   "THE right of the citizens to bear arms in defence of themselves and the state, shall not be questioned.--Idem..."

[The School of Wisdom, Or, American Monitor. CONTAINING A COPIOUS COLLECTION OF SUBLIME AND ELEGANT EXTRACTS, FROM THE MOST EMINENT WRITERS, ON Morals, Religion, and Government. "We frequently fall into error and folly, not because the true principles of action are not known, but because, for a time, they are not remembered. He may therefore justly be numbered among the benefactors of mankind, who contracts the great rules of life into short sentences, that may be easily impressed on the memory, and taught by frequent recollection to recur habitually to the mind."-- Rambler. By MATHEW CAREY. SECOND EDITION. PRINTED FOR THE EDITOR, No. 118, MARKET-STREET, PHILADELPHIA, By S.C. USTICK, Burlington, N.J. 1803. Copyright secured. Pg. 213]

"The question would be whether they were united in carrying arms for any unlawful purpose..."

"As was to be expected, the demagogues of both parties are trying to win popularity by devising laws against the "Pinkerton men." One Congressman has already introduced a bill making it unlawful for any transportation company doing an inter-state business to transport any body of armed men except those engaged in the military service of the United States, or of a State or Territorial government. The Senate has before it a resolution directing an inquiry "whether any private corporation, company, or organization in the State of Pennsylvania, or other States, has attempted to employ force against any of the people of the said State, or of the United States, in violation of the Constitution of the United States." Curiously enough, this resolution exactly covers the case of the rioters at Homestead. They are confessedly members of an organization in the State of Pennsylvania, and openly avow that they have employed force against some of the people of that State and of the United States, and that they will do it again. As those against whom they employed force were using no force and breaking no law, it is evident that the members of the Amalgamated Association were employing force in violation of Constitution of the United States.

"On the other hand, it is very doubtful if the Pinkerton men sent to Homestead constitute a body of armed men in such a sense as would make it possible to prohibit their movements without violating the Constitution. The question would be whether they were united in carrying arms for any unlawful purpose or with any hostility to any established government. It would be impossible to show this, for the very object of their existence is to support the laws against the attacks of riotous mobs. It will be a very serious matter to enact a general law prohibiting the carrying of arms by a body of men, in the face of the express provision of the Constitution that the right of the people to keep and bear arms shall not be infringed. To devise a statute that could not be evaded would be no easy matter, as the Pinkerton men need not enter any State as a body, or carrying their arms; but it is not well to attempt legislation of this kind, even if it is known that it will not be effective, without the very gravest consideration. There is a good deal more involved in it than the issue between the Carnegie Company and its men."


"To deny the people the right bearing arms or even of having them in their possession, is one of the steps commonly taken by rulers seeking to establish or maintain arbitrary government."

"256. Amendments I.--X.--These Amendments were proposed by Congress September 25, 1789, and having received the requisite ratifications, were proclaimed to be in force December 15, 1791. Together they constitute a bill of rights. They are intended to protect the citizen against undue interference by the National authority. Thus, they guarantee freedom of worship, of speech, of the press, the right of petition, the right to bear arms, immunity of the citizen against the army, the right to be secure in person, home, papers, and effects against unreasonable searches by public officers, and other personal and civil rights. Criminal trials are regulated, jury trial in civil cases guaranteed, excessive bail forbidden, and the doctrine of delegated authority, as respects the Constitution, affirmed. [Pg. 141]

"625. Right to Bear Arms.--Despotic rulers have generally been unfriendly to a citizen soldiery, rather preferring to rely upon regular troops. The friends of liberty, on the other hand, have commonly been unfriendly to large standing armies, and finally to a citizen soldiery. One of the charges made against the King in the Declaration of Independence was, that he had quartered large bodies of armed troops among the people. To deny the people the right bearing arms or even of having them in their possession, is one of the steps commonly taken by rulers seeking to establish or maintain arbitrary government. This Article throws the safeguard of the Constitution around the militia of the States. [Pgs. 353-54]

"663. Limitations of the State Governments.--As stated in Chapter XII, the State governments possess inherent powers; the Federal Government, delegated powers. It must also be borne in mind that the American people did four things when they ordained the National Constitution: Delegated certain powers of government to the Union; Prohibited certain powers to the Union; Prohibited certain powers to the States; Reserved all powers that they had not delegated to the Union, or prohibited to the States, to the States, or the people,--thus making the States their residuary legatees. Still it must not be supposed that the State governments possess or exercise all the reserved powers. The reservation is made to the people of the States, not to the State governments; and the people, in the State constitutions, deny such reserved powers
to their State governments as they see fit. From the first, the people have withheld powers from the governments that they have constituted, and in later years they have withheld more such powers than formerly. Thus, the States might establish State churches, deny to citizens the right of petition, or the right to bear arms, and unduly limit, or even deny the right of trial by jury; but the State constitutions carefully guard these points and many more besides. For example, the Pennsylvania bill of rights closes with this declaration: "To guard against transgression of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government, and shall forever remain inviolate." [Pgs. 374-75]

[THE American Government National and State Second Revised Edition BY B.A. HINSDALE, Ph.D., LL.D. PROFESSOR OF THE SCIENCE AND THE ART OF TEACHING IN THE UNIVERSITY OF MICHIGAN; AUTHOR OF "THE OLD NORTHWEST," "SCHOOLS AND STUDIES," "How TO TEACH AND STUDY HISTORY," ETC., AND EDITOR OF THE "WORKS OF JAMES ABRAM GARFIELD" CHICAGO NEW YORK WERNER SCHOOL BOOK COMPANY. [1891] (Burke Aaron Hinsdale, (1837 – 1900), was a professor of education at the University of Michigan and president of Hiram College.In 1869, Hinsdale received an appointment at Hiram College, (the Eclectic Institute had achieved collegiate status in 1867), as professor of philosophy, English literature and political science. He became president of the institution a year later. Hinsdale served as a lecturer, administrator and preacher from 1870 to the end of his presidency in 1882. He was the author of a substantial amount of articles and books in the field of education. Hinsdale became superintendent of the Cleveland public Schools in 1882. In 1888, after taking some time out to write, he was appointed Professor of Science and Art of Teaching at the University of Michigan. During his professorship, he continued to write about methods of education.)


What happened to our right?

   Anyone that has given this website an even moderate perusal. Can readily ascertain that there is a substantial amount of historical information concerning the right to keep and bear arms contained herein. This site was originally intended as the blog for the main website; In order to post interesting discoveries as they were found. So that it wouldn't get lost among the very large amount of historical data contained within. Much more of that information will, God willing, be added onto this site as time permits.

   During the almost six thousand hours of intense study devoted to the subject of arms in the hands of We, The People. One can logically assume that there have been some conclusions arrived at. Not only concerning the right itself, which in the mind of the author is. As Thomas Jefferson might have termed, "Self-Evident". But perhaps even more importantly; What happened to our right?

   There have always been those, without attempting to cast any negativity upon them. That are conscientiously scrupulous of bearing arms. Which the founders of our nation always were aware of, and thoughtfully made allowances for. Then of course there were the cowardly, and those that succumbed to the spirit of effeminacy. (Both terms borrowed from historical usage discovered during the course of studies). And then of course there are those that are in "power". Due to which, have a natural predisposition to becoming tyrannical. For, "power corrupts, and absolute power corrupts absolutely". And, that power has a natural tendency to enlarge itself. And will do so by any means possible, but usually by deception. For example; 'It is necessary for the public safety'. The last of which, are by far the most dangerous of all to our right. For they, through deceit, charm the people out of the necessary arms of defense. The very arms that were intended to be employed against their type of iniquity. Then of course there are our "public servants". Which insist that we shouldn't be armed, for it hinders their service to the "public". That, for their "safety", it is best that their masters not be armed. Which is of course a total absurdity. For which comes first, the "safety" of the masters. Or the [supposed] "safety" of the servants? It is my contention that the masters come first. For the "servants" wouldn't even exist without them. Lastly, there are those that are downright evil. And, out of fear of facing immediate retribution for their evil deeds. Naturally seek to have the means of redress removed. All of the examples given, will combine and even use the others in order to achieve the desired goal. Which is of course: a disarmed people.

   Failure, on the part of We The People, to turn the perversion of our right around. Will inevitably lead to the total destruction of freedom and liberty. If not even the annihilation of our society as a whole. History is fraught with examples. The most glaring of which can readily be gleaned from the last century. Having the faces of men like Hitler, Mao, Pol Pot, and Stalin attached to them. Will We, The People, wind up as yet another stark "example" in the annals of history? Or, will we throw off the bands that have been perversely attempting to bind us. As our forebears had done so many years ago? Do we Sink, or swim? What is our choice to be?

A free people are armed, slaves are not. Which one are you? 

"You cannot give them their personal freedom without their having arms in their hands"

   "Mr Chairman, I agree, too, with all those southern gentlemen who have spoken, that it is impossible that the southern States should abolish slavery whereeever there is a majority of colored over white people, or wherever there is a approximation to equality of numbers. It cannot be done, especially if there is a majority of slaves over freemen. You cannot give them their personal freedom without their having arms in their hands. If free, they would demand political rights, and if you give them political rights they become the governing power, and no white man will ever submit to be governed by a negro; no, never. They have got to remain as and they now are. It is most unfortunate, so far as human wisdom can see, that they are in this country, but in the Providence of God they are here, three millions and a half of slaves, and like the Israelites of old. God has chained the cause that brought them here, and so astonishingly multiplied them to their future destiny of weal or woe, and we, the whites, may well contemplate that future with awe and trembling."--SPEECH OF HON. BISHOP PERKINS, OF NEW YORK, NEBRASKA AND KANSAS. IN THE HOUSE OF REPRESENTATIVES, MAY 10 1854. [REMARKS OF MR. ENGLISH, OF INDIANA, AND OTHER PROCEEDINGS, UPON THE OCCASION OF THE INTRODUCTION AND REFERENCE OF THE HOUSE BILL TO ORGANIZE THE TERRITORIES OF NEBRASKA AND KANZAS, IN THE HOUSE OF REPRESENTATIVES, JANUARY 31, 1854. WASHINGTON: PRINTED AT THE CONGRESSIONAL GLOBE OFFICE, 1854.]   

Wednesday, May 29, 2013

"to carry his own private arms about his person, in any manner that he may think proper"

   By Lacy, J.

   "The defendant in the court below stands indicted by virtue of the authority of the 13th section of an act of the Legislature, prohibiting any person wearing a pistol, dirk, large knife, or sword-cane, concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment. Rev. Stat., p. 280.

   "The question now to be determined is, does this provision of the statute violate the second article of the amendments to the Constitution of the United States, or the 21st section of our Bill of Rights? The language in both instruments is nearly similar: the two clauses are as follows: "That a well regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed." "That the free white men of this State shall have a right to keep and bear arms in their common defence." The inquiry is restricted to a single point; but it is not, on that account, wholly free from difficulty. Several of the highest courts of the Union have adjudged it differently, upon the construction of statutes every way like our own; and their opinions are entitled to due consideration. The Court of Appeals of Kentucky has settled the principle against the constitutionality of the act now in question; and in this opinion, if I am not mistaken, the Supreme Courts of Tennessee and Mississippi have concurred. The Supreme Courts of Alabama and Indiana have held a contrary doctrine. They have maintained that the Legislature has the power of prohibiting, by law, the citizen from wearing concealed weapons. I know of no opinion ever delivered of the Supreme Court of the United States, bearing directly upon the point. The question, then, so far as this State is concerned, may be regarded open for investigation, and now brought up for adjudication upon error, for the first time. Both of my brother Judges have just pronounced separate opinions, each maintaining the constitutionality of the act. In their opinions, and the reasons upon which they are based, if I correctly comprehend them, they assert these general propositions: That all just and well regulated governments are instituted for the purpose of establishing justice, preserving domestic tranquillity, providing the necessary means for common defence, securing public liberty, and promoting the general welfare: That, to enable them to perform these high and indispensable obligations, the governments themselves inherently possess, as a portion of their sovereignty, all powers not expressly or necessarily prohibited from them by the grants of their creation: And that, under our frame of government and laws, every citizen has ample remedy and redress for a violation of all his private rights, by means of the public authorities, and to them he is bound to appeal: That the right of the people to keep and bear arms is restricted by the clause of the Constitution before quoted, and limited to the uses and objects therein specified: That it is given for the protection of public liberty, and for common defence; and that the right itself is subject to legislative control: That the words "a well regulated militia being necessary for the security of a free State," and the words "common defence" clearly show the true intent and meaning of these constitutions, and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then, the people, neither individually nor collectively, have the right to keep and bear arms. Now, I take the expressions "a well regulated militia being necessary for the security of a free State," and the terms "common defence" to be the reasons assigned for the granting of the right, and not a restriction or limitation upon the right itself, or the perfect freedom of its exercise. The security of the State is the constitutional reason for the guaranty. But when was it contended before, that the reason given for the establishment of a right, or its uninterrupted enjoyment, not only limited the right itself, but restrained it to a single specific object? According to this construction, the right itself is not only abridged, but literally destroyed; and the security of a free State is made to depend exclusively and alone upon the force of the militia. And, in the opinion of one of my brother Judges, it is the militia alone who possess this right, in contradistinction from the mass of the people; and even they cannot use them for private defence or personal aggression, but must use them for public liberty, according to the discretion of the Legislature. According to the rule laid down in their interpretation of this clause, I deem the right to be valueless, and not worth preserving; for the State unquestionably possesses the power, without the grant, to arm the militia, and direct how they shall be employed in cases of invasion or domestic insurrection. If this be the meaning of the Constitution, why give that which is no right in itself, and guaranties a privilege that is useless? This construction, according to the views I entertain, takes the arms out of the hands of the people, and places them in the hands of the Legislature, with no restraint or limitation whatever upon their power, except their own free will and sovereign pleasure. Are great affirmative grants of political powers to be determined by this technical rule of verbal criticism? If so, its rigid application to other portions of the Constitution would erase from its pages many of its most important and salutary provisions. Such a principle, I apprehend, should never be recognized or adopted by any judicial tribunal, in determining the inherent and original rights of the citizen. It goes to abridge, instead of enlarging the constitutional guaranties of personal liberty.

   "If the Legislature have the custody of the people's arms and the treasury of the State, what becomes of the separation and division of the political powers of the government? Are not those powers united in the same body of magistracy? And if this be the case, the balance of the Constitution is overthrown, and the State then possesses no real security for personal liberty. It is no answer to this argument, to say that the people may abuse the privilege or right of keeping and bearing arms. The Constitution thought and ordained it otherwise; and therefore it was deemed far safer to entrust the right to their own judgment and discretion, rather than to the will or ambition of the Legislature; and this right was excepted out of the general powers of the government, and declared inviolate. Now, if the Legislature had the right to forbid the people from keeping arms secretly, may they not prohibit them from carrying them openly or exposed? and if they could do this, may they not appoint the times and places when and where they shall be borne? And as the construction relied on assumes the principle that they can only be used for a specific and single purpose, then of course the whole subject matter, in regard to keeping and bearing either private or public arms, falls within the power of the Legislature, and they can control or regulate it in any manner that they think proper. This principle I utterly repudiate. I deny that any just or free government upon earth has the power to disarm its citizens, and to take from them the only security and ultimate hope that they have for the defence of their liberties and their rights. I deny this, not only upon constitutional grounds, but upon the immutable principles of natural and equal justice, that all men have a right to, and which to deprive them of amounts to tyranny and oppression. Can it be doubted, that if the Legislature, in moments of high political excitement or of revolution, were to pass an act disarming the whole population of the State, that such an act would be utterly void, not only because it violated the spirit and tenor of the Constitution, but because it invaded the original rights of natural justice? Now, if they are private and not public arms, the Constitution guaranties the right of keeping and bearing them.

   "The people are secured in their persons, houses, papers, and effects, against unwarrantable searches and seizures; but on probable cause, supported by oath or affirmation. Now, if the Legislature possesses the power claimed for it, it surely has the means of carrying it into effect. Can it, directly or indirectly, invade the sanctuaries of private life and of personal security, by authorizing a public inquisition to search for either open or concealed weapons? Besides, private property cannot be taken for public uses, without due compensation being first made according to law. A man's arms are his private property: how, then, can he be legally deprived of them? If they can forbid him, under the penalty of Fine and imprisonment, to keep them concealed or exposed about his person, or on his own premises, although their unrestrained use may be necessary for all the purposes of his ordinary business and of personal defence, then certainly the right keeping and bearing arms according to his own discretion, is infringed and violated, and his own free will in the management of this property abridged and destroyed.

   "If it means the public arms, then full power is given by the Constitution to Congress to organize and arm the militia, and prescribe rules for their use and regulation, when mustered into the service of the United States. Now, as full power is given to Congress over the subject, and the same power belongs to the State, which power shall be paramount, and to which of the two governments is entrusted the common defence of the country? Is the grant of the State Constitution void, being repugnant to the Constitution of the United States, or does it abrogate and annul that power? These are questions that are to be found difficult to answer; and I leave their solution to others. But I think it is a fair inference, to presume that any construction, which leads to such consequences, is very likely to be erroneous. I have always been taught to regard the Federal and State governments as indissolubly connected together, and that their mutual powers and authority acted in perfect harmony and in support of each other, like the great principles incorporated by their enactments. According to the construction I design to give, there can be no conflict between these jurisdictions, nor any discrepancy arising from their action. I hold the doctrine that the Constitution of the United States, and the laws passed in pursuance of its authority, are supreme; and that State constitutions and laws repugnant to them, are utterly null and void; and that the Constitution and laws of the Federal operate directly upon the people and the States, and all are bound to respect and obey them. Again; who compose the militia? Has the State a right to designate what part or portion of her citizens constitute this military corps? Then she can, by indirection, arm only those who are in her interest, or who are swayed by her ambition; and, by denying arms to every other class of her citizens, may not subjugate the liberties of all, by the very means the gives for their protection and defence?

   "By way of testing this principle, suppose the Legislature pass act, that a man should not keep private arms in his own house secretly, or about his person concealed, although they should be every way necessary, in defence of his life, liberty, or property. Can it be doubted that such an act would be a palpable infraction of the Constitution, as well as an invasion of the natural rights of society? Has not every man a natural and an unalienable right to defend his life, liberty, or property, when a known felony is attempted to be committed upon either by violence or surprise? Can any laws deprive him of this right? Upon what principle has he a right to use force to repel force, and even to slay the aggressor, if he cannot make a successful repulsion otherwise? The laws of the land being unable to protect him, the laws of nature step in, and authorize him to defend himself. Now, it has been often ruled by the Courts of England, that an act clearly against the laws of natural justice and equity, is not binding; and that if Parliament, which is omnipotent in every thing, pass such acts, they are presumed to have intended no such outrage or wrong. To put this case in its true light--suppose a citizen of the State were indicted upon a charge of murder, and he could make out a clear case of justifiable homicide, the laws of nature, upon which the laws of society are presumed to be based, instead of punishing, commends him for the act; of course, he stands acquitted of all blame; but, on the trial, the evidence shows that he was compelled to take life with a concealed weapon, and the State thinks proper to indict him for this new offence, which is forbidden by an act of the Legislature; and the proof being clear upon the point, of course he may be convicted and rendered infamous for life. What then becomes of the right of self defence? Is it not swept away from him by legislative discretion, and the doctrine of self-preservation destroyed, which nature has implanted in the breast of every living creature, and which no laws either human or divine, can abrogate or annul? In such a case, could there be any hesitation in pronouncing the act that punished him for protecting his own life, absolutely null and void? I think not. All the authorities, upon natural as well as constitutional law, support and prove this position. Would the act forbidding a person to carry concealed weapons be constitutional if he used them in self-defence, and unconstitutional if he did not use them at all, or kept them in a secret manner? If that be the case, then it is the intent, and not the fact of carrying concealed weapons, that makes the law either void or valid. Can so fluctuating a rule be the standard by which to test the constitutionality of the acts of the Legislature? I maintain that the simple fact of a man's keeping and bearing private arms, whether concealed or exposed, is an act innocent of itself, and its freedom secured from all legislative interference. The act being innocent and allowed, cannot be made penal, or prohibited by law. The existence and freedom of a right is one thing, and the culpable and criminal use of it another and a wholly different thing. A right, in itself innocent and guarantied by law, cannot be made illegal or punished as a crime; and the error into which the Court has fallen in the present instance, seems to me to result from confounding these two things, which are wholly separate and independent of each other.

   "I admit that it is somewhat difficult to determine the exact point where the freedom of a constitutional right stops, and where legislative regulation begins. I take this distinction, however, to run through the whole class of cases; that if the right be innocent of itself, it cannot be interdicted; but its unlawful exercise, degenerating into licentiousness, is subject to regulation. The principle assumed in this case is, that the fact of private arms being worn concealed is a criminal offence, and capable of being controlled by the Legislature, and that they alone have the right to judge of its criminality. The propositions I do not believe, nor can I subscribe to them. It is true that the Legislature must judge, in the first case, whether the unrestrained freedom or use of a constitutional right is criminal or not; but having passed upon the subject, it then belongs to the Judiciary to examine the question ,and to declare the rule of action in regard to it. The citizen, in this instance, complains that his liberty has been improperly restrained, and he has appealed to the Judiciary to shield him from this act of legislative injustice. That department is the last arbiter of his rights; and the point to be settled is, has the Legislature judged wrongfully, or is the mere fact of a person's keeping his private arms concealed, an offence against the State, and liable to be controlled by legislative discretion?

   "I maintain that the act is not only lawful, but expressly secured by the Constitution, and of course cannot be controlled by ordinary legislation. I admit that, if a man uses his arms improperly, or in an unlawful manner, then it is competent for the Legislature to punish him for the improper and illegal use of them; and it is right to do so, for every one is bound so to exercise his own rights, as not to prejudice those of others. The Legislature, in doing this, does not punish an innocent act, but an unwarrantable one: it does not abridge a natural and constitutional right, or in any manner interfere with its freedom. It merely punishes an unlawful use of a right; and it can do that only when the party has committed, with his own arms, unauthorized aggression upon the person or property of another. And the rights of the Constitution are guarantied upon this principle--that while their perfect freedom and enjoyment are secured, the Constitution utterly forbids any licentious or criminal indulgence in their exercise; for when that is the case, they can no longer be said to be the perfect and inviolable rights of the Constitution, but the unlawful and unauthorized acts of individuals. For example: The freedom of the press, the liberty of speech, and the sacred inviolability of private contracts, and free toleration in religion, are secured to all men. Still any one or all these rights may be abused or perverted, and the true object or design of the Convention defeated. But does that authorize the Legislature to place restraints or interdicts upon the rights themselves? Certainly not. Such a power will give them up to the discretion the Legislature, and take them clearly out of the Constitution. They certainly cannot be infringed or violated, or their obligations or value weakened or impaired. A law declaring that a man might write or speak what he pleased, but should not publish or circulate what he had spoken or written; or that he should worship his Creator only on certain days and at appointed places, would surely be unconstitutional, because it would destroy the freedom and sacredness of these rights. But should he, in the exercise of them, commit any unlawful act, and prejudice the rights of others, then he would be answerable for their unwarrantable use and indulgence. For instance, if in writing or speaking, or in the exercise of his religious opinions, he should prejudice or injure the rights and liberties of others, then this willful perversion or abuse of these rights becomes a criminal act, and consequently should be controlled. The liberty of speech and of the press, and the freedom of religious toleration, are utterly incompatible, in the true constitutional meaning of those terms, with their licentiousness or criminal indulgence; and these latter or improper acts are in no manner connected with the invaluable franchises out of which they flow. Now, the right of the people to keep and bear arms is as free and unfettered, and as inviolable and important, as the liberty of speech and of the press, or the freedom of religious toleration; and it stands upon precisely the same constitutional ground, and supported by like reasons.

   "Sic utere tuo, non loedas alienum, is a maxim that runs through the whole body of the English common law, and pervades every part of our entire system of jurisprudence. Our Constitution and laws, construed by this principle, cause all the great and essential rights of civil and religious liberty to coalesce and blend together for the improvement and happiness of our species. If it is disregarded or overlooked, the constitutional guarantees become contradictory or hostile to each other: thence the necessity and importance of the rule in the construction of all laws. The application of this governing rule in the construction of laws, demonstrates and explains the reasons why it would be unlawful so to keep arms or ammunition of any kind, as to endanger the lives or property of others; and it solves the supposed difficulty, that if there is no limitation or restriction of the power of keeping and bearing arms, then the State has no authority to disarm a criminal for any offence whatever. When a citizen breaks his covenant with his government, he forfeits the protection of her laws; and of course this supersedes or destroys many of his municipal rights and political franchises, which he otherwise would be entitled to receive at her hands.

   "It is further contended that the right should be restricted, because it is given alone for the security of a free State, which means nothing more or less than the defence of public liberty. Now, what constitutes the security of a free State, or what is public liberty? Does the security of a free State consist alone in repelling foreign aggression, or quelling domestic insurrection? How is the public liberty of a State to be preserved, and what is it? These inquiries seem to me to lead to different results, as we view the subject from different points. The security of a free State, as I imagine, depends not only in upholding all its political institutions, but in sacredly performing all its legal and constitutional obligations, both to the Government and to the people. Public liberty can only be secured and perpetuated by preserving inviolable the personal franchises and immunities of the citizen, as well as guarding and protecting the sovereign attributes of the State. To suppose that public liberty cannot be in danger, except from a foreign foe or internal disorder, is virtually to deny the importance and necessity of written constitutions. If there was no fear of our own rulers, why impose restraints upon them, and why commit the guardianship and care of the great principles of civil and religious liberty to separate and independent departments of the Government, and bind each, by the most solemn injunctions, to preserve and defend them? And why trust the Constitution, in the last resort, to the interpretation of the Courts, to expound its meaning and declare its will? For this plain and obvious reason: because the Judiciary has few temptations to err, and possesses neither patronage or power, to make it popular or dangerous. I cannot separate the political freedom of the State from the personal rights of its citizens. They are indissoluble bound up together in the same great bond of union, and, to my mind, are incapable of division. The distinction may be in names, but cannot be in the nature and essence of things. It is certainly true, that, in one sense of the term, the political rights of the State and personal privileges of the citizen may be contradistinguished from other. There is a certain class of rights, which belongs to the State in her corporate character, and cannot be exercised except the intervention of her authority. By far the most important largest of the rights of the Constitution appertain exclusively to the person of the citizen, and concern the inherent rights of life, liberty, and property. Many of these rights lie behind the Constitution, and existed antecedent to its formation and its adoption. They are embodied in its will, and organized by its power, to give them sanctity and effect. They are written, that they may be understood and remembered; and then declared inviolate and supreme, because they cannot be weakened or invaded without doing the Government and citizen manifest injustice and wrong. Among these rights, I hold, is the privilege of the people to keep and to bear their private arms, for the necessary defence of their person, habitation, and property, or for any useful or innocent purpose whatever. We derive this right from our Anglo-Saxon ancestors, and under the form of that government it has ever been regarded as sacred and inviolable. It is great antiquity and of invaluable price. Its necessary operation, in times of convulsion and of revolution, has been the only means by which public liberty or the security of free States has been vindicated and maintained. Here, the principles of equal and natural justice, as well as the obvious meaning and spirit of the Constitution, have placed it above legislative interference. To forbid a citizen, under the penalty of fine and imprisonment, to carry his own private arms about his person, in any manner that he may think proper for his security or safety, is, in my opinion an unauthorized attempt to abridge a constitutional privilege, and therefore I hold the law in question to be of no effect. [But the majority of the Court being of a different opinion, the judgment was reversed.]

- Justice Thomas J. Lacy, Arkansas Supreme Court, [Dissenting Opinion in State v. Buzzard, 4 Ark. (2 Pike) 18 (1842). Reports of Cases Argued and Determined in the Supreme Court of Law and Equity of the State of Arkansas. By Albert Pike, Counsellor at Law. Vol. IV. Little Rock: Published by B.J. Borden. 1843. Pgs. 33-43]

Smith & Wesson fans might enjoy this oldy but goody

"the constitution of the United States provides that the right of the people to keep and bear arms shall not be infringed"

   "It had long been firmly established by the common law that every individual member of the community or nation possessed by nature, and as the gift of God, three primary rights; namely, the right of personal security, right of personal liberty, and the right to acquire, hold, transfer property.

   "These three great rights may be regarded as the upon which the whole superstructure of our laws is built; for it is the very object and aim, not only of the form of government we have adopted, but of the great body of laws, both civil and criminal, to maintain and enforce them.

   "These rights are termed by the common law absolute rights, because they were supposed to be held and enjoyed independently of the government. The people, in giving up a portion of their natural liberty to establish a government, in consideration of receiving the advantages of mutual association and protection, retained these rights absolutely, considering them of so sacred a character that they should never be given up for any purposes whatever.

   "It has always been most firmly and jealously insisted by our English ancestors that none of these rights could ever, on any pretence, be alienated, taken away, or infringed in the slightest degree, except by their own consent freely given, either immediately or through the medium of their representatives, and then only in the particular mode and manner which they prescribed. Nor was it ever doubted that such was the law; but we find in the history of our race that attempts were frequently made by ambitious kings and others to whom the governmental authority was intrusted, to violate or subvert them.

   "Such attempts were, however, always resisted, even by force of arms; and it may with truth be said that every civil war and revolution which has occurred in England for many hundreds of years has been occasioned by tyrannical attempts of kings and parliaments to infringe these great natural rights. Finally, it is well known an attempt of this kind brought on the conflict which resulted in the separation of the American colonies from the parent state.

   "A keen remembrance of the arduous contests which had been maintained by our ancestors for so long a period in the preservation of these great rights, is quite perceptible in several of the provisions introduced in our national and state constitutions. For though it is clear that no department of government in this country has any power given it to infringe or violate these rights, the framers of our constitutions, and especially of the earliest of them, were not content with merely withholding powers that might be dangerous, but insisted on inserting clauses positively prohibiting such arbitrary and unlawful acts as in their experience they had found so much difficulty in opposing.

   "The right of personal security, as established by the common law, consists in a person's legal right to the uninterrupted enjoyment of life, health, and reputation. As an additional safeguard for the preservation of this right, and in remembrance of oppressions that had been experienced in England, the constitution of the United States provides that the right of the people to keep and bear arms shall not be infringed; that their right to be secure in their persons and houses against unreasonable searches and seizures shall not be violated; and that no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

   "Life, being the gift of God, is a right inherent by nature in every individual, and it follows, as a necessary consequence, that the right to the enjoyment of life includes a right to the means necessary to support it. Thus every individual is entitled to a sufficient portion of the fruits of the earth to preserve life, and no one and no class of persons are entitled to acquire or possess all to the entire exclusion of others. Upon this principle the indigent are supposed to be entitled to a support from the more opulent portion of the community. So also, every individual is entitled to be protected in the preservation of his health, and from such practices as may prejudice it. And as, in a state of society, the value of life depends much upon the reputation or good name of the individual, he is entitled to protection from slander and detraction."--Indiana Supreme Court Judge Thomas L. Smith

"Also, an act to prohibit the carrying of fire-arms on premises or plantations of any citizen without the consent of the owner..."

Affairs in Louisiana.

Of New York,

In the House of Representatives,

June 8, 1872,

On the condition of affairs in Louisiana

   Mr. SMITH, of New York. Mr Speaker, the people of this country have suffered much in saving and guarding their liberties put up further with tricks and shams. Honest themselves, they demand that politicians deal squarely with them. It were wise, too, for politicians to bear in mind that they intelligent, and are just now in no humor fooling.
   I have not sought the floor, Mr. Speaker, to defend bad men in Louisiana. The Republican party, born of the conscience of this country, with a muscle made hard in the struggle with giant wrong, with a career always glorious and always triumphant because always just, has no use for white-wash. That is a good thing for sepulchers, but for a live and giant party it is too cheap for glory and too thin for strength.
   Mr. Speaker, if with the convictions of my conscience I should deny that Louisiana has suffered from adventurers and villains in official position, I should be guilty of a dereliction of duty to this House as a member of your committee, and of gross infidelity to the Republican party. That party, sir, like Brutus, is just enough and strong enough to condemn its first born to death. I shall not assert that the Governor of Louisiana is alone responsible for the troubles in that State, nor deny that he was elected by Republican votes. But I do assert that from about the commencement of his official term he has been gayly coqueling with the Democratic party, and that Barkis has been amazingly "willin'," that he has appointed more Democrats than Republicans to office, and that with his first official misconduct, the Republican party of Louisiana, (except
such men as he held by personal favor and patronage) led by pure, noble, and heroic men, arrayed itself in solid and determined opposition to him. And, Mr. Speaker, this load of shame would not have been laid upon Louisiana but for the fact that the virtuous and white robed Democracy of the State at the critical moment rushed to his support and formed with him in January, 1871, an infamous coalition which held the Republican party in the Legislature in complete subjection, and brought Louisiana to the depth of humiliation to which she has been plunged.
   Mr. Speaker, let the wailing report of the Democratic members of this committee go to the ear of the country. I will not stop to say the picture is overdrawn, but I invite these gentlemen to come to the counter and post the books, that the country may decide who shall bear the infamy.
   The Democratic Legislature of Louisiana of 1866, to which was returned but one Union man, like every Democratic Legislature in the Union, contemptuously rejected the fourteenth amendment, which, bear in mind, did not impose negro suffrage, but made the freedmen citizens, and abolished the three-fifths representation in Congress. Feeling "pity and kindness" for the freedmen, as Democratic witnesses testified before your committee, the same Legislature expelled the Union member, who offered a resolution that the United States flag should be hung over the speaker's chair, and passed, among others, the following laws;
   "An act to provide for and regulate labor contracts for agricultural pursuits, which required the freedmen 'within the first ten days of the month of January of each year,' to make contracts for labor for a whole year before a justice of the peace and two 'disinterested witnesses,' the heads of families to make contracts for all the members of the family able to work; the ninth section of whiah act provided for a 'common fund,' into which all funds were to go, to be divided among the laborers, and by which certain acts of the laborers are declared to be 'disobedience.' Judgments under this section were to be entered by the employer, but, if not satisfactory to the freedmen, 'an appeal may be had to the nearest justice of the peace and two freeholders, citizens, one of said citizens to be selected by the employer and the other by tbe laborer.'
   "Also, an act to prohibit the carrying of fire-arms on premises or plantations of any citizen without the consent of the owner.
   "Also, an act to prevent trespassing, which seems intended to prevent freedmen from leaving the plantations on which they were employed and from visiting each other.
   "Also, an act making an important change in the vagrant law of Louisiana, allowing a justice of the peace, it would seem, by demanding, any sort of a bond for good behavior in such an amount and with such sureties as he may choose, which it would be impossible for the freedmen to procure, to 'hire out' the latter for one year to a planter, or to 'cause him to labor on the public works, roads, and levees.'
   "Also, an act to provide for tho punishment of persons for tampering with, persuading, or enticing away ,harboring, feeding, or secreting laborers, servants, or apprentices, very stringent in its provisions.
   "Also an act relative to apprentices and indentured servants, authorizing parish officer to apprentice all persons under the age of eighteen years if females, and twenty-one years if males,' under the conditions stated. In all cases when the age of the minor cannot be ascertained by 'record testimony,' the officer 'shall fix the age according to the best evidence before him.'
   "The second section declares 'valid and binding' contracts made in the United States or 'in a foreign country' for the term of five years.
   "Also, an act to punish in certain cases the employers of laborers or apprentices, intended, it would seem, to revive tho old slavery regulation that colored persons should carry 'written certificates' or 'passes.'"
   Here, sir, was the nest-egg of a new "irrepressible conflict," and of new wars for oar children to fight out.
   More than a year before had the prophetic Lincoln suggested the giving of the right of suffrage to the blacks of Louisiana, as in some hour of danger they might "aid in preserving the jewel of liberty in the family of freedom." . . .