Friday, May 24, 2013

"that it shall not be infringed by Congress"

   In United States v. Cruikshank, 92 U.S. 542 (1875), the court ruled the following:

"The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the "powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police," "not surrendered or restrained" by the Constitution of the United States."

   And, although many parts of Cruikshank have been overturned by later decisions, it is still relied upon with some authority in portions. Cruikshank was also reaffirmed in Presser v. Illinois in 1886.

   That being the case concerning the view of the court concerning the second amendment at that time. And for more than 100 years thereafter. Then how can the court reconcile the following?:

1934 National Firearms Act

1938 Federal Firearms Act

1968 Gun Control Act

1972 Bureau of Alcohol Tobacco and Firearms created

1986 Law Enforcement Officers Protection Act

1990 Crime Control Act

1994 Brady Handgun Violence Prevention Act

   Did not the federal government totally disregard the ruling of the court? Not to mention the express prohibition found within the “Restrictive clause” of the Second Article of Amendment to the United State Constitution itself:

“the right of the people to keep and bear arms shall not be infringed.”

   I contend it can be firmly held that the federal government has indeed disregarded the prior ruling of the court. In addition to the clear restriction found within the second amendment itself.

   Why? Has the court joined in a long running conspiracy with the other branches of the federal government. And this in order to deprive part or all of We The People of our preexisting Constitutionally secured right? It certainly appears that way, does it not? Especially after considering that the right to keep and bear arms was intended as the final checkpoint in our system of checks and balances.

   What has happened to our intended system of “checks and balances”?

   Returning to Cruikshank. Why did the court make that ruling, in spite of the following rulings/jury instructions of their own members? To Wit:

United States Circuit Court,




An Associate Justice of Supreme Court of United States.

District Judge of United States for Western District of Missouri.

District Judge of United States for Eastern District of Missouri.

JULY 10, 1861.





"...A brief reference to some of the offences of which you have cognizance, and a succinct statement of the law concerning them, may aid your investigations, and serve for your guidance:

"The Constitution and laws of the United States "are the supreme law of the land," anything in the Constitution or laws of any State to the contrary, notwithstanding." Their supremacy is thus declared in express terms: "Whatever conflicts therewith has no operative or obligatory force. Allegiance to the United States, and loyalty to the United States Constitution and laws, are the paramount duty of every citizen. Within their legitimate sphere, they command the obedience of all, and no State Constitution or statute can absolve any one therefrom...."

"...Inasmuch as the Constitution provides a peaceable and regular mode whereby it or the U. S. laws may be amended, there can be no other rightful mode of effecting that end known either to the Constitution or law. As it is both the right and duty of every citizen to become fully informed upon all governmental affairs, so as to discharge his many political obligations intelligently at the ballot-box, and in other legitimate ways; and the freedom of the press and of speech are guaranteed to him for that as well as other essential purposes; and as the right of the people peaceably to assemble and petition for the redress of grievances, and to keep and bear arms, cannot be lawfully abridged or infringed, it is evident that an assemblage for the mere purpose of procuring peaceable redress of supposed grievances cannot be treasonable; nor can a free and full discussion of the acts of public men or public measures, whether such discussion be in private conversations, public meetings or the press; nor can a military gathering when assembled for no purpose or design of interfering, by force or intimidation, with the lawful functions of the government or of its constituted authorities, or of preventing the execution of any law, or of extorting its alteration or repeal, or of overthrowing the lawful supremacy of the United States in any State of Territory...."

And again, in the case that did end up going before the U.S. Supreme court referred to above:

Circuit court of the United States
fifth circuit and district of Louisiana.

The United States
William J Cruikshank et al.

[United States v. Cruikshank, 25 F. Cas. 707 (1 Woods, 308) (C.C.D. La. 1874) (No. 14,897), aff'd, 92 U.S. 542 (1876). ]

Charge of Hon WB Woods, circuit judge, delivered to the petit jury in the Grant Parish massacre case, referred to in the testimony of Mr Beckwith.


The seventeenth day's proceeding in the trial of W.J. Cruikshank and others, charged with conspiracy and murder in Grant Parish last April, opened in the United States circuit court yesterday, by Judge Woods delivering his charge to the jury. We publish that document entire accepting it as a page in the history of Louisiana

JR Beckwith, United States attorney, for the prosecution.
R.H Marr W.R. Whittaker, E.J. Ellis, M. Ryan and-- Bryan, for the defense.

The United States vs William J. Cruikshank and others--Judge Woods,[later associate justice of the U.S. Supreme Court (1880–87)], charged the jury as follows:

"...This statute is the law of the land, and it is your duty and mine in a proper case to enforce. Its purpose is the protection of all citizens of the United States, of every class and condition, in the exercise and enjoyment of their lawful and constitutional rights. Its operation is equal Its prohibitions are directed to all persons; its penalties fall upon all offenders against its provisions, of every race, condition, and party. No man who takes care not to invade the constitutional or lawful rights of another can be touched by it, and it protects alike the rights of all It applies to all parts of our country, and its provisions extend to every State and Territory in the Union.
"It is a just and wholesome act, designed to promote peace and public order, to protect every citizen, whether lofty or lowly, rich or poor, learned or ignorant, in the free exercise and enjoyment of all the privileges and immunities which are granted or secured to him by the Constitution and laws of his country. All classes of citizens whether white or black, without regard to race or previous condition, are interested in its enforcement...."

"...When in the vicinity they asked for a conference with the colored people, which was granted and took place, (Columbus C. Nash speaking for the white men, and Levin Allen, a colored man, for his side.) Nash demanded that the colored men should give up their arms and yield possession of the courthouse. This demand was not acceded to by the colored men, and thirty minutes were given them to remove their women and children. The colored men took refuge behind their earthwork near the court-house, and at about 10, 11, or 12 o'clock, as variously stated by the witnesses, the firing began. The white men had a small piece of artillery mounted on wheels which, with their small arms, was used against the colored men, who responded with their shot-guns and Enfield rifles; of the latter they had about a dozen. A change in the position of their gun, made by the white men, gave them an enfilading the on the blacks, which demoralized them, and their line broke. A portion of them, leaving their arms, fled down the Red River, in the direction of a strip of woods, at Cuny's Point, and were followed by mounted and armed whites, by whom many of them were overtaken and shot to death. The others, sixty or seventy in number, took refuge in the court-house...."

"...The second count charges a banding together of the indicted parties with the intent to injure, oppress, threaten, and intimidate Nelson and Tillman, with the purpose to hinder and prevent them in the free exercise and enjoyment of their constitutional right to bear arms for a lawful purpose..."

"...These are facts in this case as I understand them to be admitted. If these facts are conceded, or if you find them upon the evidence to be true, your range of inquiry will be much narrowed...."

"...The right of peaceable assembly is one of the rights secured by the Constitution and laws of the United Stares. If citizens come together for a lawful and peaceable purpose, their assembling is within the meaning of the Constitution. The fact that they assemble with arms, provided these arms are to be used not for aggression but for their protection, does not make the assemblage any the less a peaceable one..."

"...Next consider the intent of the banding and conspiring laid in the second count, which is alleged to be to intimidate, &c.. Nelson and Tillman, with the purpose to prevent their exercise of the right to keep and bear arms for a lawful purpos[e].

"The right to bear arms is also a right protected by the Constitution and laws of the United States. Every citizen of the United States has the right to bear arms, provided it is done for a lawful purpose and in a lawful manner. A man who carries his arms openly, and for his own protection, or for any other lawful purpose, has as clear a right to do so as to carry his own watch or wear his own hat."

[House of Representatives, 43D Congress, 2nd Session, Report 261, Part 3 Louisiana Affairs. Report of the Select Committee on that Portion of the President's Message Relating to: The Condition of the South. Testimony taken by the Committee.]

And the examples above are by no means the only ones of their kind. To Wit:

U.S. Supreme Court,
Dred Scott v. Sandford,
60 U.S. 393 (1856).

"More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."--Mr. Chief Justice TANEY

And yet again:

Circuit Court of The United States,




Hon. HENRY BALDWIN, Associate Justice of the [U.S.] Supreme Court,

Hon JOSEPH HOPKINSON District Judge,

Johnson v Tompkins, (13 F. Cas. 840 (C.C.E.D. Pa. 1833)), and others.]

"...Baldwin J charged the jury...."

“The first section of the bill of rights in the constitution of Pennsylvania declares that all men have the inherent and indefeasible right of enjoying and defending life and liberty of acquiring possessing and protecting property that no man can be deprived of his liberty or property but by the judgment of his peers or the law of the land Sect 9
That the right of citizens to bear arms in defence of themselves and the state shall not be questioned Sect 21 The second section of the fourth article of the constitution of the United States declares the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The tenth section of the first article prohibits any state from passing any law which impairs the obligation of a contract. The second amendment provides that the right of the people to keep and bear arms shall not be infringed."

"...We shall pursue this subject no further, in its bearing on the political rights of the states composing the union--in recalling your attention to these rights, which are the subject of this controversy, we declare to you as the law of the case, that they are inherent and unalienable--so recognised by all our fundamental laws.
"The constitution of the state or union is not the source of these rights, or the others to which we have referred you, they existed in their plenitude before any constitutions, which do not create but protect and secure them against any violation by the legislatures or courts, in making, expounding or administering laws.

"The nature of this case, its history, and the course of the argument, call on us to declare explicitly what is the effect of a constitutional protection or guarantee of any right, or the injunction of any duty. The twenty sixth section of the bill of rights in the constitution of Pennsylvania, is in these words; "to guard against transgressions of the high powers we have delegated we declare [we the people of Pennsylvania], that every thing in this article is excepted out of the general powers of government, and shall for ever remain inviolate." A higher power declares this constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme laws of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding" Const U.S., art. 6, clause 2.

"An amendment of the constitution is of still higher authority, for it has the effect of controlling and repealing the express provisions of the constitution authorizing a power to be exercised, by a declaration that it shall not be construed to give such power. 3 Dall 382.

"We have stated to you the various provisions of the constitution of the United States and its amendments, as well as that of this state; you see their authority and obligation to be supreme over any laws or regulations which are repugnant to them, or which violate, infringe or impair any right thereby secured; the conclusions which result are too obvious to be more than stated."
--U.S. Supreme Court Justice BALDWIN,

 To illustrate the original intention of the framers of our Constitution:
"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is PARAMOUNT to ALL positive forms of government . . . The citizens must rush tumultuously to arms..."--Alexander Hamilton, The Federalist Papers No. 28.
"...Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped .... but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little, if at all, inferior to them in discipline and the USE OF ARMS, who stand ready to defend their own rights, and those of their fellow citizens. This appears to me the only substitute that can be devised for a standing army; and the best possible security against it, if it should exist."--Alexander Hamilton, The Federalist No. 29, Independent Journal, Wednesday, January 9, 1788.
And in regard to the authority of the Federalist:
"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed..."--Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821).
   How can a Constitutionally secured right, that is expressly declared “shall not be infringed” upon. Be infringed upon with impunity by the very government instituted to secure it? It is my contention that it cannot. Is not the right to self-defense paramount to all? And the inalienable natural right of all free people? Have not the public servants of We The People betrayed their "rightful masters"? It is my contention that they indeed have.

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