GunShowOnTheNet

The only ones that fear....

2010-08-07T18:03:00.003-07:00

The only ones that fear an armed populace are criminals. And that includes both the criminals within our government(s). As well as those that are loose in the general population.

Damn good reasons....

2010-04-19T14:10:00.003-07:00

How's THIS for some good news?

2010-04-16T20:10:00.002-07:00

Arizona to allow concealed weapons without permit

Governor Brewer signs legislation into law

by Alia Beard Rau - Apr. 16, 2010 03:46 PM
The Arizona Republic

Starting later this summer, U.S. citizens 21 and older can begin carrying a concealed firearm without a permit in Arizona.

Gov. Jan Brewer signed Senate Bill 1108 into law Friday afternoon. It eliminates the requirement for a concealed-carry weapons permit, but does require gun owners to accurately answer if an officer asks them if they are carrying weapon concealed. It also allows officers to temporarily confiscate a weapon while they are talking to an individual, including during a traffic stop.

"I believe strongly in the individual rights and responsibilities of a free society, and as governor I have pledged a solemn and important oath to protect and defend the Constitution," Brewer said in a news release. "I believe this legislation not only protects the Second Amendment rights of Arizona citizens, but restores those rights as well."....

Life can be decent sometimes, eh?

"...bare the secrets of the government and inform the people..."

2010-04-13T06:52:00.001-07:00

"The Press was protected so that it could bare the secrets of the government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people."

-- Justice Hugo L. Black, (1886-1971), US Supreme Court Justice. [New York Times v. Unites States (Pentagon Papers) 1971]

Check out LearnAboutGuns.com

2009-12-29T09:00:00.002-07:00

From the authors website:

"Firearm information and politics from a gun rights perspective, with an emphasis on self defense rights."

"Welcome! This site is dedicated to preserving the individual right of law abiding citizens to possess firearms for self defense as well as sporting purposes. I created this site after recognizing the growing threat to our right to keep and bear arms, and hope to both dispel the myths surrounding guns and “gun crime“, as well as to provide useful information to those who already support firearms rights.

"I also hope to persuade those who don’t currently support gun rights, through the use of polite and well reasoned arguments, including information about why I have a gun. I firmly believe that polite debate, which focuses on the issues and facts rather than on personal attacks and hyperbole, is what we as a society need when it comes to issues such as gun rights.

"Information that may be helpful to people who are new to guns is available here too. This includes information on selecting a firearm for home defense, selecting the ammunition for home defense, firearms maintenance, legally purchasing a gun online, safe and responsible gun storage, reviews of various guns and accessories, etc...."

The gentleman regularly posts articles on actual instances of Armed Self Defense

Alarm and Muster

2009-04-13T14:38:00.002-07:00

Welcome to the official site of the Alarm & Muster. Here you will find an elected official database, a members-only forum, and more. Here, you're among friends.

The Alarm & Muster project has always been concerned with the creation of a network of communication of likeminded men and women nationwide that would refuse the infringement of their freedoms. It is our unalienable right to life, liberty, and the pursuit of happiness and we will allow no man, no one, to infringe upon these. We are the children of 1775, if not by blood, then by spirit; and we extend our hand of welcome....

Thomas Jefferson, "Every able-bodied freeman..."

2009-03-23T17:45:00.001-07:00

"Every able-bodied freeman, between the ages of 16 and 50, is enrolled in the militia. Those of every county are formed into companies, and these again into one or more battalions, according to the numbers in the county. They are commanded by colonels, and other subordinate officers, as in the regular service. In every county is a county- lieutenant, who commands the whole militia of his county, but ranks only as a colonel in the field. We have no general officers always existing. These are appointed occasionally, when an invasion or insurrection happens, and their commission determines with the occasion. The governor is head of the military, as well as civil power. The law requires every militia-man to provide himself with the arms usual in the regular service. But this injunction was always indifferently complied with, and the arms they had have been so frequently called for to arm the regulars, that in the lower parts of the country they are entirely disarmed. In the middle country a fourth or fifth part of them may have such firelocks as they had provided to destroy the noxious animals which infest their farms; and on the western side of the Blue ridge they are generally armed with rifles."

- Thomas Jefferson, Notes on the State of Virginia 1781-1782, "Military force", The number and condition of the militia and regular troops, and their pay?, Military.

"to give to each male emigrant . . . a rifle-gun and ammunition"

2008-12-02T12:51:00.001-07:00

...The Senate proceeded to consider the resolution.
A motion was made by Mr. White, to amend the same, by adding at the end thereof, the following: "Provided that an additional article, to be executed between the United States and the friends and followers of the late General McIntosh, by their delegation, now in the City of Washington, shall be entered into, containing the following stipulations by the United States, in favor of the said friends and followers of the late General McIntosh.
1. That the sum of 30,000 dollars, for each one thousand persons of said Creek nation, be paid, who, within months after the ratification of the treaty, shall signify their disposition to the Agent to emigrate to the west of the Mississippi, and who shall, accordingly, carry said design into execution, within a reasonable time thereafter.
2. The United States to support each of said emigrants, for months after their arrival at the point of destination; months notice of their intention to emigrate being given to the United States, through their Agent, to pay for supplies furnished the Mcintosh party, since the death of the General, proper vouchers for the same being produced: and to give to each male emigrant, over the age of sixteen years, a rifle-gun and ammunition, butcher knife, and a camp kettle, and to pay for the value of all improvements left by any emigrant, which add to the real value of the land, to be ascertained by a Commissioner, to be appointed by the President.
3. To stipulate, that the exploring party provided for in the treaty, shall be accompanied by an Agent, who shall be acceptable to them, and to be appointed by the President; and, after the return of the said Agent, herein provided for, and after his report to the Secretary of War, the President of the United States shall, forthwith, grant to such Agent special commission, authorizing him to repair to the Creek nation, there to open a book of registry, in which shall be inserted the names of all persons willing to emigrate to the country which shall have been determined upon, of which due and public notice shall be given throughout all the Creek nation.

The friends and followers of the late General McIntosh, shall have free access to the several towns, and to all parts of the Creek nation, under the protection of the said Special Agent, for the purpose of inducing their friends, throughout the nation, to join them in their emigration; and all persons desirous of emigrating, shall be at full liberty to do so, without hindrance or molestation from those who remain; and the Resident Agent of the United States shall be instructed to give them all necessary aid, and the said Special shall accompany them in their emigration....
- Journal of the executive proceedings of the Senate of the United States of America, 1815-1829 FRIDAY, April 21, 1826. Library of Congress - American Memory.

Businesses who deny citizens their rights to self defense

2008-09-16T20:28:00.002-07:00

The thought for this type of action has been floating around in my, (and many others), mind for quite some time. Was on a forum in the Topix "Guns" section; "Do you really think "no guns allowed" signs work?" today. And a regular poster, ("Trin Tragula"), gave the following link: "Here in Northern Colorado, Rocky Mountain Gun Owners keeps a list on their web site for us to refer to, that seems pretty reliable." The page lists businesses who refuse We The People, who choose to carry arms, entrance into their establishments. As well as businesses that have seen the error of their [formerly tyrannical] ways, and now allow We The People to carry on their premises.

So, the point of this post is for readers to post businesses; Name, Address, City and State, of those who refuse to allow an armed citizen on their property. And spread the word to our fellow citizens to NOT frequent their establishments until they change their 'policy'. For nothing can change minds more quickly than potential loss of income.

Please feel free to post any business that you are aware of that denies We The People to be armed on their premises. This can be done by adding their Name, Address, City and State into a comment. Please also remember to post those that have retracted their former [tyrannical] stance, and now allow armed citizens on their premises. This is important, for it provides incentive to others to follow the example.

"As a Band of Brothers"

2008-07-08T20:37:00.000-07:00

The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 1]ADDRESS TO THE PEOPLE OF THE STATE OF NEW YORK, ON THE SUBJECT OF THE PROPOSED FEDERAL CONSTITUTION, By The Hon. JOHN JAY, MINISTER FOR FOREIGN AFFAIRS TO THE UNITED STATES IN CONGRESS ASSEMBLED.

[1788.]

[EXTRACTS.]

Friends and Fellow-citizens: The Convention concurred in opinion with the people, that a national government, competent to every national object, was indispensably necessary; and it was as plain to them, as it now is to all America, that the present Confederation does not provide for such a government. These points being agreed, they proceeded to consider how and in what manner such a government could be formed, as, on the one hand, should be sufficiently energetic to raise us from our prostrate and distressed situation, and, on the other, be perfectly consistent with the liberties of the people of every state. Like men to whom the experience of other ages and countries had taught wisdom, they not only determined that it should be erected by, and depend on, the people, but, remembering the many instances in which governments vested solely in one man, or one body of men, had degenerated into tyrannies, they judged it most prudent that the three great branches of power should be committed to different hands, and therefore that the executive should be separated from the legislative, and the judicial from both. Thus far the propriety of their work is easily seen and understood, and therefore is thus far almost universally approved; for no one man or thing under the sun ever yet pleased every body.

The next question was, what particular powers should be given to these three branches. Here the different views and interests of the different states, as well as the different abstract opinions of their members on such points, interposed many difficulties. Here the business became complicated, and presented a wide field for investigation--too wide for every eye to take a quick and comprehensive view of it.

It is said that "in a multitude of counsellors there is safety," because, in the first place, there is greater security for probity; and in the next, if every member cast in only his mite of information and argument, their joint stock of both will thereby become greater than the stock possessed by any one single man out of doors. Gentlemen out of doors, therefore, should not be hasty in condemning a system which probably rests on more good reasons than they are aware of, especially when formed under such advantages, and recommended by so many men of distinguished worth and abilities.

The difficulties before mentioned occupied the Convention a long time; and it was not without mutual concessions that they were at last surmounted. These concessions serve to explain to us the reason why some parts of the system please in some states which displease in others, and why many of the objections which have been made to it are so contradictory and inconsistent with one another. It does great credit to the temper and talents of the Convention, that they were able so to reconcile the different views and interests of the different states, and the clashing opinions of their members, as to unite with such singular and almost perfect unanimity in any plan whatever, on a subject so intricate and perplexed. It shows that it must have been thoroughly discussed and understood; and probably, if the community at large had the same lights and reasons before them, they would, if equally candid and uninfluenced, be equally unanimous.

It would be arduous, and indeed impossible, to comprise within the limits of this address a full discussion of every part of the plan. Such a task would require a volume; and few men have leisure or inclination to read volumes on any subject. The objections made to it are almost without number, and many of them without reason. Some of them are real and honest, and others merely ostensible. There are friends to union and a national government who have serious doubts, who wish to be informed, and to be convinced; and there are others, who, neither wishing for union nor any national government at all, will oppose and object to any plan that can be contrived.

We are told, among other strange things, that the liberty of the press is left insecure by the proposed Constitution; and yet that Constitution says neither more nor less about it than the Constitution of the state of New York does. We are told that it deprives us of trial by jury; whereas the fact is, that it expressly secures it in certain cases, and takes it away in none. It is absurd to construe the silence of this, or of our own Constitution, relative to a great number of our rights, into a total extinction of them. Silence and blank paper neither grant nor take away any thing. Complaints are also made that the proposed Constitution is not accompanied by a bill of rights; and yet they who make these complaints know, and are content, that no bill of rights accompanied the Constitution of this state. In days and countries where monarchs and their subjects were frequently disputing about prerogative and privileges, the latter then found it necessary, as it were, to run out the line between them, and oblige the former to admit, by solemn acts, called bills of rights, that certain enumerated rights belonged to the people, and were not comprehended in the royal prerogative. But, thank God, we have no such disputes; we have no monarchs to contend with, or demand admissions from. The proposed government is to be the government of the people: all its officers are to be their officers, and to exercise no rights but such as the people commit to them. The Constitution only serves to point out that part of the people's business, which they think proper by it to refer to the management of the persons therein designated: those persons are to receive that business to manage, not for themselves, and as their own, but as agents and overseers for the people, to whom they are constantly responsible, and by whom only they are to be appointed.

But the design of this address is not to investigate the merits of the plan, nor of the objections made to it. They who seriously contemplate the present state of our affairs, will be convinced that other considerations, of at least equal importance, demand their attention. Let it be admitted that this plan, like every thing else devised by man, has its imperfections. That it does not please every body, is certain; and there is little reason to expect one that will. It is a question of great moment to you, whether the probability of our being able seasonably to obtain a better, is such as to render it prudent and advisable to reject this, and run the risk. Candidly to consider this question, is the design of this address.

As the importance of this question must be obvious to every man, whatever his private opinions respecting it may be, it becomes us all to treat it in that calm and temperate manner which a subject so deeply interesting to the future welfare of our country, and prosperity, requires. Let us, therefore, as much as possible, repress and compose that irritation in our minds which too warm disputes about it may have excited. Let us endeavor to forget that this or that man is on this or that side; and that we ourselves, perhaps without sufficient reflection, have classed ourself with one or the other party. Let us remember that this is not to be regarded as a matter that only touches our local parties, but as one so great, so general, and so extensive, in its future consequence to America, that, for our deciding upon it according to the best of our unbiased judgment, we must be highly responsible both here and hereafter.

The question now before us naturally leads to three inquiries:--

1. Whether it is probable that a better plan can be obtained.
2. Whether, if attainable, it is likely to be in season.
3. What would be our situation if, after rejecting this, all our efforts to obtain a better should prove fruitless.

The men who formed this plan are Americans, who had long deserved and enjoyed our confidence, and who are as much interested in having a good government as any of us are or can be. They were appointed to that business at a time when the states had become very sensible of the derangement of our national affairs, and of the impossibility of retrieving them under the existing Confederation. Although well persuaded that nothing but a good national government could oppose and divert the tide of evils that was flowing in upon us, yet those gentlemen met in Convention with minds perfectly unprejudiced in favor of any particular plan. The minds of their constituents were at that time equally cool and dispassionate. All agreed in the necessity of doing something; but no one ventured to say decidedly what precisely ought to be done. Opinions were then fluctuating and unfixed; and whatever might have been the wishes of a few individuals, yet while the Convention deliberated, the people remained in silent suspense. Neither wedded to favorite systems of their own, nor influenced by popular ones abroad, the members were more desirous to receive light from, than to impress their private sentiments on, one another.
These circumstances naturally opened the door to that spirit of candor, of calm inquiry, of mutual accommodation, and mutual respect, which entered into the Convention with them, and regulated their debates and proceedings.

The impossibility of agreeing upon any plan, that would exactly quadrate with the local policy and objects of every state, soon became evident; and they wisely thought it better mutually to coincide and accommodate, and in that way to fashion their system as much as possible by the circumstances and wishes of the different states, than, by pertinaciously adhering each to his own ideas, oblige the Convention to rise without doing any thing. They were sensible that obstacles, arising from local circumstances, would not cease while those circumstances continued to exist; and, so far as those circumstances depended on differences of climate, productions, and commerce, that no change was to be expected. They were likewise sensible that, on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion. The same proposition seldom strikes many minds exactly in the same point of light. Different habits of thinking, different degrees and modes of education, different prejudices and opinions, early formed and long entertained, conspire, with a multitude of other circumstances, to produce among men a diversity and contrariety of opinions on questions of difficulty. Liberality, therefore, as well as prudence, induced them to treat each other's opinions with tenderness; to argue without asperity; and to endeavor to convince the judgment, without hurting the feelings, of each other. Although many weeks were passed in these discussions, some points remained on which a unison of opinions could not be effected. Here, again, that same happy disposition to unite and conciliate induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that, too, with a degree of unanimity which, considering the variety of discordant views and ideas they had to reconcile, is really astonishing.

They tell us, very honestly, that this plan is the result of accommodation. They do not hold it up as the best of all possible ones, but only as the best which they could unite in and agree to. If such men, appointed and meeting under such auspicious circumstances, and so sincerely disposed to conciliation, could go no farther in their endeavors to please every state and every body, what reason have we, at present, to expect any system that would give more general satisfaction?

Suppose this plan to be rejected; what measures would you propose for obtaining a better? Some will answer, "Let us appoint another convention; and, as every thing has been said and written that can well be said and written on the subject, they will be better informed than the former one was, and consequently be better able to make and agree upon a more eligible one."

This reasoning is fair, and, as far as it goes, has weight; but it nevertheless takes one thing for granted which appears very doubtful; for, although the new convention might have more information, and perhaps equal abilities, yet it does not from thence follow that they would be equally disposed to agree. The contrary of this position is most probable. You must have observed that the same temper and equanimity which prevailed among the people on former occasions, no longer exist. We have unhappily become divided into parties; and this important subject has been handled with such indiscreet and offensive acrimony, and with so many little, unhandsome artifices and misrepresentations, that pernicious heats and animosities have been kindled, and spread their flames far and wide among us. When, therefore, it becomes a question who shall be deputed to the new convention, we cannot flatter ourselves that the talents and integrity of the candidates will determine who shall be elected. Federal electors will vote for federal deputies, and anti-federal electors for anti-federal ones. Nor will either party prefer the most moderate of their adherents; for, as the most stanch and active partisans will be the most popular, so the men most willing and able to carry points, to oppose and divide, and embarrass their opponents, will be chosen. A convention formed at such a season, and of such men, would be but too exact an epitome of the great body that named them. The same party views, the same propensity to opposition, the same distrusts and jealousies, and the same unaccommodating spirit, which prevail without, would be concentred and ferment with still greater violence within. Each deputy would recollect who sent him, and why he was sent, and be too apt to consider himself bound in honor to contend and act vigorously under the standard of his party, and not hazard their displeasure by preferring compromise to victory. As vice does not sow the seed of virtue, so neither does passion cultivate the fruits of reason. Suspicions and resentments create no disposition to conciliate; nor do they infuse a desire of making partial and personal objects bend to general union and the common good. The utmost efforts of that excellent disposition were necessary to enable the late Convention to perform their task; and although contrary causes sometimes operate similar effects, yet to expect that discord and animosity should produce the fruits of confidence and agreement, is to expect "grapes from thorns, and figs from thistles."

The states of Georgia, Delaware, Jersey, and Connecticut, have adopted the present plan with unexampled unanimity. They are content with it as it is; and consequently their deputies, being apprized of the sentiments of their constituents, will be little inclined to make alternations, and cannot be otherwise than averse to changes, which they have no reason to think would be agreeable to their people. Some other states, though less unanimous, have nevertheless adopted it by very respectable majorities--and for reasons so evidently cogent, that even the minority in one of them have nobly pledged themselves for its promotion and support. From these circumstances, the new convention would derive and experience difficulties unknown to the former. Nor are these the only additional difficulties they would have to encounter. Few are ignorant that there has lately sprung up a sect of politicians who teach, and profess to believe, that the extent of our nation is too great for the superintendence of one national government, and on that principle argue that it ought to be divided into two or three. This doctrine, however mischievous in its tendency and consequences, has its advocates; and, should any of them be sent to the convention, it will naturally be their policy rather to cherish than to prevent divisions; for, well knowing that the institution of any national government would blast their favorite system, no measures that lead to it can meet with their aid or approbation.

Nor can we be certain whether or not any, and what, foreign influence would, on such an occasion, be indirectly exerted, nor for what purposes. Delicacy forbids an ample discussion of this question. Thus much may be said without error or offence, viz.: that such foreign nations as desire the prosperity of America, and would rejoice to see her become great and powerful, under the auspices of a government wisely calculated to extend her commerce, to encourage her navigation and marine, and to direct the whole weight of her power and resources as her interest and honor may require, will doubtless be friendly to the union of states, and to the establishment of a government able to perpetuate, protect, and dignify it. Such other foreign nations, if any such there be, who, jealous of our growing importance, and fearful that our commerce and navigation should impair their own, behold our rapid population with regret, and apprehend that the enterprising spirit of our people, when seconded by power and probability of success, may be directed to objects not consistent with their policy or interests, cannot fail to wish that we may continue a weak and a divided people.

These considerations merit much attention; and candid men will judge how far they render it probable that a new convention would be able either to agree in a better plan, or, with tolerable unanimity, in any plan at all. Any plan, forcibly carried, by a slender majority, must expect numerous opponents among the people, who, especially in their present temper, would be more inclined to reject than adopt any system so made and carried. We should, in such a case, again see the press teeming with publications for and against it; for, as the minority would take pains to justify their dissent, so would the majority be industrious to display the wisdom of their proceedings. Hence new divisions, new parties, and new distractions, would ensue; and no one can foresee or conjecture when or how they would terminate.

Let those who are sanguine in their expectations of a better plan from a new convention, also reflect on the delays and risks to which it would expose us. Let them consider whether we ought, by continuing much longer in our present humiliating condition, to give other nations further time to perfect their restrictive systems of commerce, reconcile their own people to them, and to fence, and guard, and strengthen them by all those regulations and contrivances in which a jealous policy is ever fruitful. Let them consider whether we ought to give further opportunities to discord to alienate the hearts of our citizens from one another, and thereby encourage new Cromwells to bold exploits. Are we certain that our foreign creditors will continue patient, and ready to proportion their forbearance to our delays? Are we sure that our distresses, dissensions, and weakness, will neither invite hostility nor insult? If they should, how ill prepared shall we be for defence, without union, without government, without money, and without credit!

It seems necessary to remind you that some time must yet elapse before all the states will have decided on the present plan. If they reject it, some time must also pass before the measure of a new convention can be brought about and generally agreed to. A further space of time will then be requisite to elect their deputies, and send them on to convention. What time they may expend, when met, cannot be divined; and it is equally uncertain how much time the several states may take to deliberate and decide on any plan they may recommend. If adopted, still a further space of time will be necessary to organize and set it in motion. In the mean time, our affairs are daily going on from bad to worse; and it is not rash to say that our distresses are accumulating like compound interest.

But if, for the reasons already mentioned, and others that we cannot now perceive, the new convention, instead of producing a better plan, should give us only a history of their disputes, or should offer us one still less pleasing than the present, where should we be then? The old Confederation has done its best, and cannot help us; and is now so relaxed and feeble, that, in all probability, it would not survive so violent a shock. Then, "To your tents, O Israel!" would be the word. Then, every band of union would be severed. Then, every state would be a little nation, jealous of its neighbors, and anxious to strengthen itself, by foreign alliances, against its former friends. Then farewell to fraternal affection, unsuspecting intercourse, and mutual participation in commerce, navigation, and citizenship. Then would arise mutual restrictions and fears, mutual garrisons and standing armies, and all those dreadful evils which for so many ages plagued England, Scotland, Wales, and Ireland, while they continued disunited, and were played off against each other.

Consider, then, how weighty and how many considerations advise and persuade the people of America to remain in the safe and easy path of union; to continue to move and act, as they hitherto have done, as a band of brothers; and to have confidence in themselves and in one another; and, since all cannot see with the same eyes, at least to give the proposed Constitution a fair trial, and to mend it as time, occasion, and experience, may dictate. It would little become us to verify the predictions of those who ventured to prophesy that peace, instead of blessing us with happiness and tranquillity, would serve only as the signal for factions, discord, and civil contentions, to rage in our land, and overwhelm it with misery and distress.

Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for, if the event should prove that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems which, however charming in theory and prospect, are not reducible to practice? If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion, reign over them, the minds of men every where will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in governments which, though less friendly to liberty, afford more peace and security.

Receive this address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.

JOHN JAY, a Citizen of New York. [Mr. Jay was later the first Chief Justice of the United States Supreme Court].

"Hereafter when peace and independency shall be established, temptations to disaffection, the preservation of property and office, or the expectation of them will cease, and united truly like a band of brothers, we may bid defiance to the world."
- William Ellery to William Whipple, May 31st 1778 [Letters of Delegates to Congress: Volume 9 February 1, 1778 - May 31, 1778]

"The Law"

2008-06-30T16:00:00.000-07:00

"We hold from God the gift which includes all others. This gift is life — physical, intellectual, and moral life.
"But life cannot maintain itself alone. The Creator of life has entrusted us with the responsibility of preserving, developing, and perfecting it. In order that we may accomplish this, He has provided us with a collection of marvelous faculties. And He has put us in the midst of a variety of natural resources. By the application of our faculties to these natural resources we convert them into products, and use them. This process is necessary in order that life may run its appointed course.
"Life, faculties, production — in other words, individuality, liberty, property — this is man. And in spite of the cunning of artful political leaders, these three gifts from God precede all human legislation, and are superior to it. Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.
"What, then, is law? It is the collective organization of the individual right to lawful defense.
"Each of us has a natural right — from God — to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties? If every person has the right to defend even by force — his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right — its reason for existing, its lawfulness — is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force — for the same reason — cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.
"Such a perversion of force would be, in both cases, contrary to our premise. Force has been given to us to defend our own individual rights. Who will dare to say that force has been given to us to destroy the equal rights of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?
"If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all."
- Frederic Bastiat, (1801-1850), "The Law": [This translation of The Law was done by Dean Russell of The Foundation staff. The Foundation for Economic Education, Inc. Irvington-on-Hudson, New York]

This says ALL that is needed to be said:

2008-06-10T22:24:00.000-07:00

"From among the rights retained by our policy, we have selected those of self defence or bearing arms, of conscience, and of free inquiry, for two purposes; one, to shew the vast superiority of our policy, in being able to keep natural rights necessary for liberty and happiness, out of the hands of governments; the other, to shew that this ability is the effect of its principles, and beyond the reach of Mr. Adams’s system, or of any other, unable to reserve to the people, and to withhold from governments, a variety of rights."
- John Taylor, Revolutionary Soldier and U.S. Senator, (1792 – 94, 1803, 1822 – 24). [An Inquiry into the Principles and Policy of the Government of the United States: Section the Sixth; THE GOOD MORAL PRINCIPLES OF THE GOVERNMENT OF THE UNITED STATES, (1814).]
"TAYLOR, John, a Senator from Virginia known as ‘John Taylor of Caroline’ to distinguish him from others of the same name; born in either Orange or Caroline County, Va., probably on December 19, 1753; educated by private tutors; studied at the College of William and Mary, Williamsburg, Va., 1770-1772; studied law; admitted to the bar and commenced practice in Caroline County in 1774; served in the Revolutionary War as major and colonel; member, State house of delegates 1779-1785, with the exception of 1782, and 1796-1800; retired from the practice of law and engaged in agricultural pursuits; elected in 1792 to the United States Senate to fill the vacancy caused by the resignation of Richard Henry Lee; reelected in 1793 and served from October 18, 1792, until his resignation on May 11, 1794; presidential elector in 1797; appointed to the United States Senate as a Democratic Republican to fill the vacancy caused by the death of Stevens T. Mason and served from June 4 to December 7, 1803, when a successor was elected; was not a candidate for election to fill the vacancy; elected in 1822 to the United States Senate to fill the vacancy caused by the resignation of James Pleasants; reelected as a Crawford Republican in 1823, and served from December 18, 1822, until his death in Caroline County, Va., August 21, 1824; interment on Hazelwood farm, near Port Royal, Caroline County, Va."
- Biographical Directory of the United States Congress

Dissertations on First Principles of Government, By Thomas Paine

2008-06-07T13:47:00.000-07:00

There is no subject more interesting to every man than the subject of government. His security, be he rich or poor, and in a great measure his prosperity, are connected therewith; it is therefore his interest as well as his duty to make himself acquainted with its principles, and what the practise ought to be.

Every art and science, however imperfectly known at first, has been studied, improved and brought to what we call perfection by the progressive labors of succeeding generations; but the science of government has stood still. No improvement has been made in the principle and scarcely any in the practise till the American Revolution began. In all the countries of Europe (except in France) the same forms and systems that were erected in the remote ages of ignorance still continue, and their antiquity is put in the place of principle; it is forbidden to investigate their orgin, or by what right they exist. If it be asked how has this happened, the answer is easy: they are established on a principle that is false, and they employ their power to prevent detection.

Notwithstanding the mystery with which the science of government has been enveloped, for the purpose of enslaving, plundering and imposing upon mankind, it is of all things the least mysterious and the most easy to be understood. The meanest capacity cannot be at a loss, if it begins its inquiries at the right point. Every art and science has some point, or alphabet, at which the study of that art or science begins, and by the assistance of which the progress is facilitated. The same method ought to be observed with respect to the science of government.

Instead then of embarrassing the subject in the outset with the numerous subdivisions under which different forms of government have been classed, such as aristocracy, democracy, oligarchy, monarchy, etc., the better method will be to begin with what may be called primary divisions, or those under which all the several subdivisions will be comprehended.

The primary divisions are but two:
First, government by election and representation.
Secondly, government by hereditary succession.

All the several forms and systems of government, however numerous or diversified, class themselves under one or other of those primary divisions; for either they are on the system of representation, or on that of hereditary succession. As to that equivocal thing called mixed government, such as the late Government of Holland, and the present Government of England, it does not make an exception to the general rule, because the parts separately considered are either representative or hereditary.

Beginning then our inquiries at this point, we have first to examine into the nature of those two primary divisions. If they are equally right in principle, it is mere matter of opinion which we prefer. If the one be demonstratively better than the other that difference directs our choice; but if one of them should be so absolutely false as not to have a right of existence the matter settles itself at once; because a negative proved on one thing, where two only are offered, and one must be accepted, amounts to an affirmative on the other.

The revolutions that are now spreading themselves in the world have their origin in this state of the case, and the present war is a conflict between the representative system founded on the rights of the people, and the hereditary system founded in usurpation. As to what are called monarchy, royalty and aristocracy, they do not, either as things or as terms, sufficiently describe the hereditary system; they are but secondary things or signs of the hereditary system, and which fall of themselves if that system has not a right to exist.

Were there no such terms as monarchy, royalty and aristocracy, or were others terms substituted in their place, the hereditary system, if it continued, would not be altered thereby. It would be the same system under any other titulary name as it is now.

The character therefore of the revolutions of the present day distinguishes itself most definitively by grounding itself on the system of representative government, in opposition to the hereditary. No other distinction reaches the whole of the principle.

Having thus opened the case generally, I proceed, in the first place, to examine the hereditary system because it has the priority in point of time. The representative system is the invention of the modern world; and, that no doubt may arise as to my own opinion, I declare it beforehand, which is, that there is not a problem in Euclid more mathematically true than that hereditary government has not a right to exist. When therefore we take from any man the exercise of hereditary power we take away that which he never had the right to possess, and which no law or custom could, or ever can, give him a title to.

The arguments that have hitherto been employed against the hereditary system have been chiefly founded upon the absurdity of it, and its incompetency to the purpose of good government. Nothing can present to our judgment, or to our imagination, a figure of greater absurdity, than that of seeing the government of a nation fall, as it frequently does, into the hands of a lad necessarily destitute of experience, and often little better than a fool. It is an insult to every man of years, of character, and of talents, in a country.

The moment we begin to reason upon the hereditary system, it falls into derision; let but a single idea begin and a thousand will soon follow. Insignificance, imbecility, childhood, dotage, want of moral character; in fine, every defect, serious or laughable, unite to hold up the hereditary system as a figure of ridicule. Leaving, however, the ridiculousness of the thing to the reflections of the reader, I proceed to the more important part of the question, namely, whether such a system has a right to exist.

To be satisfied of the right of a thing to exist, we must be satisfied that it had a right to begin. If it had not a right to begin, it has not the right to continue. By what right then did the hereditary system begin? Let a man but ask himself this question, and he will find that he cannot satisfy himself with an answer.

The right which any man or any family had to set itself up at first to govern a nation, and to establish itself hereditarily, was no other than the right which Robespierre had to do the same thing in France. If he had none, they had none. If they had any, he has as much; for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin. The Capets, the Guelphs, the Robespierres, the Marats, are all on the same standing as to the question of right. It belongs exclusively to none.

It is one step toward liberty to perceive that hereditary government could not begin as an exclusive right in any family. The next point will be whether, having once begun, it could grow into a right by the influence of time.

This would be supposing an absurdity; for either it is putting time in the place of principle, or making it superior to principle; whereas time has no more connection with, or influence upon principle, than principle has upon time. The wrong which began a thousand years ago is as much a wrong as if it began to- day; and the right which originates to-day is as much a right as if it had the sanction of a thousand years.

Time with respect to principles is an eternal NOW: it has no operation upon them: it changes nothing of their nature and qualities. But what have we to do with a thousand years? Our lifetime is but a short portion of that period, and if we find the wrong in existence as soon as we begin to live, that is the point of time at which it begins to us; and our right to resist it is the same as if it never existed before.

As hereditary government could not begin as a natural right in any family, nor derive after its commencement any right from time, we have only to examine whether there exist in a nation a right to set it up, and establish it by what is called law, as has been done in England. I answer NO; and that any law or any constitution made for that purpose is an act of treason against the right of every minor in the nation, at the time it is made, and against the rights of all succeeding generations.

I shall speak upon each of those cases. First, of the minor at the time such law is made. Secondly, of the generations that are to follow.

A nation, in a collective sense, comprehends all the individuals of whatever age, from just born to just dying. Of these, one part will be minors and the other aged. The average of life is not exactly the same in every climate and country, but in general the minority in years are the majority in numbers; that is, the number of persons under twenty- one years, is greater than the number of persons above that age.

This difference in number is not necessary to the establishment of the principle I mean to lay down, but it serves to show the justice of it more strongly. The principle would be equally as good if the majority in years were also the majority in numbers.

The rights of minors are as sacred as the rights of the aged. The difference is altogether in the different age of the two parties, and nothing in the nature of the rights; the rights are the same rights; and are to be preserved inviolate for the inheritance of the minors when they shall come of age. During the minority of minors their rights are under the sacred guardianship of the aged.

The minor cannot surrender them; the guardian cannot dispossess him; consequently, the aged part of a nation, who are the law- makers for the time being, and who, in the march of life are but a few years ahead of those who are yet minors, and to whom they must shortly give place, have not and cannot have the right to make a law to set up and establish hereditary government, or, to speak more distinctly, an hereditary succession of governors; because it is an attempt to deprive every minor in the nation, at the time such a law is made, of his inheritance of rights when he shall come of age, and to subjugate him to a system of government to which, during his minority, he could neither consent nor object.

If a person who is a minor at the time such a law is proposed, had happened to have been born a few years sooner, so as to be of the age of twenty-one years at the time of proposing it, his right to have objected against it, to have exposed the injustice and tyrannical principles of it and to have voted against it, will be admitted on all sides.

If, therefore, the law operates to prevent his exercising the same rights after he comes of age as he would have had a right to exercise had he been of age at the time, it is undeniably a law to take away and annul the rights of every person in the nation who shall be a minor at the time of making such a law, and consequently the right to make it cannot exist.

I come now to speak of government by hereditary succession, as it applies to succeeding generations; and to show that in this case, as in the case of minors, there does not exist in a nation a right to set it up.

A nation, though continually existing, is continually in a state of renewal and succession. It is never stationary. Every day produces new births, carries minors forward to maturity, and old persons from the stage. In this ever running flood of generations there is no part superior in authority to another. Could we conceive an idea of superiority in any, at what point of time, or in what century of the world, are we to fix it? To what cause are we to ascribe it? By what evidence are we to prove it? By what criterion are we to know it?

A single reflection will teach us that our ancestors, like ourselves, were but tenants for life in the great freehold of rights. The fee- absolute was not in them, it is not in us, it belongs to the whole family of man through all ages. If we think otherwise than this we think either as slaves or as tyrants. As slaves, if we think that any former generation had a right to bind us; as tyrants, if we think that we have authority to bind the generations that are to follow.

It may not be inapplicable to the subject, to endeavor to define what is to be understood by a generation in the sense the word is here used.

As a natural term its meaning is sufficiently clear. The father, the son, the grandson, are so many distinct generations. But when we speak of a generation as describing the persons in whom legal authority resides, as distinct from another generation of the same description who are to succeed them, it comprehends all those who are above the age of twenty-one years, at the time that we count from; and a generation of this kind will continue in authority between fourteen and twenty-one years, that is, until the number of minors, who shall have arrived at age, shall be greater than the number of persons remaining of the former stock.

For example: If France, at this or any other moment, contains twenty-four millions of souls, twelve millions will be males, and twelve females. Of the twelve millions of males, six millions will be of the age of twenty-one years, and six will be under, and the authority to govern will reside in the first six.

But every day will make some alteration, and in twenty-one years every one of those minors who survives will have arrived at age, and the greater part of the former stock will be gone: the majority of persons then living, in whom the legal authority resides, will be composed of those who, twenty-one years before, had no legal existence. Those will be fathers and grandfathers in their turn, and, in the next twenty-one years (or less) another race of minors, arrived at age, will succeed them, and so on.

As this is ever the case, and as every generation is equal in rights to another, it consequently follows, that there cannot be a right in any to establish government by hereditary succession, because it would be supposing itself possessed of a right superior to the rest, namely, that of commanding by its own authority how the world shall be hereafter governed, and who shall govern it.

Every age and generation is, and must be (as a matter of right), as free to act for itself in all cases, as the age and generation that preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man, neither has one generation a property in the generations that are to follow.

In the first part of the "Rights of Man" I have spoken of government by hereditary succession; and I will here close the subject with an extract from that work, which states it under the two following heads.

First, The right of a particular family to establish itself.

Secondly, The right of a nation to establish a particular family.

"With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority, and independent of the consent of a nation, all men will concur in calling it despotism; and it would be trespassing on their understanding to attempt to prove it.

But the second head, that of a nation establishing a particular family with hereditary powers, does not present itself as despotism on the first reflection; but if men will permit a second reflection to take place, and carry that reflection forward but one remove out of their own persons to that of their offspring, they will then see that hereditary succession becomes in its consequences the same despotism to others, which they reprobated for themselves. It operates to preclude the consent of the succeeding generations; and the preclusion of consent is despotism.

When the person who at any time shall be in possession of a government, or those who stand in succession to him, shall say to a nation, I hold this power in 'contempt' of you, it signifies not on what authority he pretends to say it. It is no relief, but an aggravation to a person in slavery, to reflect that he was sold by his parent; and as that which heightens the criminality of an act cannot be produced to prove the legality of it, hereditary succession cannot be established as a legal thing.

In order to arrive to a more perfect decision on this head, it will be proper to consider the generation which undertakes to establish a family with hereditary powers, apart and separate from the generations which are to follow; and also to consider the character in which the first generation acts with respect to succeeding generations.

The generation which first selects a person, and puts him at the head of its government, either with the title of king, or any other distinction, acts its own choice, be it wise or foolish, as a free agent for itself. The person so set up is not hereditary, but selected and appointed; and the generation who sets him up, does not live under an hereditary government, but under a government of its own choice and establishment. Were the generation who sets him up, and the person so set up, to live for ever, it never could become hereditary succession; and of consequence, hereditary succession can only follow on the death of the first parties.

As therefore hereditary succession is out of the question with respect to the first generation, we have now to consider the character in which that generation acts with respect to the commencing generation, and to all succeeding ones.

It assumes a character, to which it has neither right nor title. It changes itself from a legislator to a testator, and affects to make its will, which is to have operation after the demise of the makers, to bequeath the government; and it not only attempts to bequeath, but to establish on the succeeding generation, a new and different form of government under which itself lived
Itself, as is already observed, lived not under an hereditary government, but under a government of its own choice and establishment; and it now attempts, by virtue of a will and testament, (which it has not authority to make), to take from the commencing generation, and all future ones, the rights and free agency by which itself acted.

But, exclusive of the right which any generation has to act collectively as a testator, the objects to which it applies itself in this case, are not within the compass of any law, or of any will or testament.

The rights of men in society are neither devisable, nor transferable, nor annihilable, but are descendible only; and it is not in the power of any generation to intercept finally and cut off the descent. If the present generation, or any other, are disposed to be slaves, it does not lessen the right of the succeeding generation to be free: wrongs cannot have a legal descent. When Mr. Burke attempts to maintain, that the English nation did at the Revolution of 1688, most solemnly renounce and abdicate their rights for themselves, and for all their posterity for ever; he speaks a language that merits not reply, and which can only excite contempt for his prostitute principles, or pity for his ignorance.

In whatever light hereditary succession, as growing out of the will and testament of some former generation, presents itself, it is an absurdity. A cannot make a will to take from B the property of B, and give it to C; yet this is the manner in which (what is called) hereditary succession by law operates.

A certain former generation made a will, to take away the rights of the commencing generation, and all future ones, and to convey those rights to a third person, who afterwards comes forward, and tells them, in Mr. Burke's language, that they have no rights, that their rights are already bequeathed to him, and that he will govern in contempt of them. From such principles, and such ignorance, Good Lord deliver the world!"

The history of the English Parliament furnishes an example of this kind; and which merits to be recorded as being the greatest instance of legislative ignorance and want of principle that is to be found in any country. The case is as follows:

The English Parliament of 1688, imported a man and his wife from Holland, William and Mary, and made them King and Queen of England. Having done this, the said Parliament made a law to convey the government of the country to the heirs of William and Mary, in the following words:

"We, the Lords Spiritual and Temporal, and Commons, do, in the name of the people of England, most humbly and faithfully submit ourselves, our heirs and posterities, to William and Mary, their heirs and posterities, forever." And in a subsequent law, as quoted by Edmund Burke, the said Parliament, in the name of the people of England then living, binds the said people, their heirs and posterities, to William and Mary, their heirs and posterities, to the end of time.

It is not sufficient that we laugh at the ignorance of such law-makers; it is necessary that we reprobate their want of principle. The Constituent Assembly of France, 1789, fell into the same vice as the Parliament of England had done, and assumed to establish an hereditary succession in the family of the Capets as an act of the Constitution of that year.

That every nation, for the time being, has a right to govern itself as it pleases, must always be admitted; but government by hereditary succession is government for another race of people, and not for itself; and as those on whom it is to operate are not yet in existence, or are minors, so neither is the right in existence to set up for them, and to assume such a right is treason against the right of posterity.

I here close the arguments on the first head, that of government by hereditary succession; and proceed to the second, that of government by election and representation; or, as it may be concisely expressed, representative government, in contradistinction to hereditary government.
Reasoning by exclusion, if hereditary government has not a right to exist, and that it has not is provable, representative government is admitted of course. In contemplating government by election and representation, we amuse not ourselves in inquiring when or how, or by what right, it began. Its origin is ever in view. Man is himself the origin and the evidence of the right. It appertains to him in right of his existence, and his person is the title deed.

Alexander Hamilton wrote, in 1775: "The sacred rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam in the whole volume of human nature by the hand of Divinity itself, and can never be erased or obscured by mortal power."

The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives. The rich have no more right to exclude the poor from the right of voting, or of electing and being elected, than the poor have to exclude the rich; and wherever it is attempted, or proposed, on either side, it is a question of force and not of right. Who is he that would exclude another? That other has a right to exclude him.

That which is now called aristocracy implies an inequality of rights; but who are the persons that have a right to establish this inequality? Will the rich exclude themselves? No. Will the poor exclude themselves? No. By what right then can any be excluded? It would be a question, if any man or class of men have a right to exclude themselves; but, be this as it may, they cannot have the right to exclude another. The poor will not delegate such a right to the rich, nor the rich to the poor, and to assume it is not only to assume arbitrary power, but to assume a right to commit robbery.

Personal rights, of which the right of voting for representatives is one, are a species of property of the most sacred kind: and he that would employ his pecuniary property, or presume upon the influence it gives him, to dispossess or rob another of his property or rights, uses that pecuniary property as he would use fire-arms, and merits to have it taken from him.

Inequality of rights is created by a combination in one part of the community to exclude another part from its rights. Whenever it be made an article of a constitution, or a law, that the right of voting, or of electing and being elected, shall appertain exclusively to persons possessing a certain quantity of property, be it little or much, it is a combination of the persons possessing that quantity to exclude those who do not possess the same quantity. It is investing themselves with powers as a self-created part of society, to the exclusion of the rest.

It is always to be taken for granted, that those who oppose an equality of rights never mean the exclusion should take place on themselves; and in this view of the case, pardoning the vanity of the thing, aristocracy is a subject of laughter. This self-soothing vanity is encouraged by another idea not less selfish, which is that the opposers conceive they are playing a safe game, in which there is a chance to gain and none to lose; that at any rate the doctrine of equality includes them, and that if they cannot get more rights than those whom they oppose and would exclude they shall not have less.

This opinion has already been fatal to thousands, who, not contented with equal rights, have sought more till they lost all, and experienced in themselves the degrading inequality they endeavored to fix upon others.

In any view of the case it is dangerous and impolitic, sometimes ridiculous, and always unjust to make property the criterion of the right of voting. If the sum or value of the property upon which the right is to take place be considerable it will exclude a majority of the people and unite them in a common interest against the government and against those who support it; and as the power is always with the majority, they can overturn such a government and its supporters whenever they please.

If, in order to avoid this danger, a small quantity of property be fixed, as the criterion of the right, it exhibits liberty in disgrace, by putting it in competition with accident and insignificance. When a brood-mare shall fortunately produce a foal or a mule that, by being worth the sum in question, shall convey to its owner the right of voting, or by its death take it from him, in whom does the origin of such a right exist? Is it in the man, or in the mule? When we consider how many ways property may be acquired without merit, and lost without crime, we ought to spurn the idea of making it a criterion of rights.

But the offensive part of the case is that this exclusion from the right of voting implies a stigma on the moral character of the persons excluded; and this is what no part of the community has a right to pronounce upon another part. No external circumstance can justify it: wealth is no proof of moral character; nor poverty of the want of it.

On the contrary, wealth is often the presumptive evidence of dishonesty; and poverty the negative evidence of innocence. If therefore property, whether little or much, be made a criterion, the means by which that property has been acquired ought to be made a criterion also.
The only ground upon which exclusion from the right of voting is consistent with justice would be to inflict it as a punishment for a certain time upon those who should propose to take away that right from others. The right of voting for representatives is the primary right by which other rights are protected.

To take away this right is to reduce a man to slavery, for slavery consists in being subject to the will of another, and he that has not a vote in the election of representatives is in this case. The proposal therefore to disfranchise any class of men is as criminal as the proposal to take away property.

When we speak of right we ought always to unite with it the idea of duties: rights become duties by reciprocity. The right which I enjoy becomes my duty to guarantee it to another, and he to me; and those who violate the duty justly incur a forfeiture of the right.

In a political view of the case, the strength and permanent security of government is in proportion to the number of people interested in supporting it. The true policy therefore is to interest the whole by an equality of rights, for the danger arises from exclusions. It is possible to exclude men from the right of voting, but it is impossible to exclude them from the right of rebelling against that exclusion; and when all other rights are taken away the right of rebellion is made perfect.

While men could be persuaded they had no rights, or that rights appertained only to a certain class of men, or that government was a thing existing in right of itself, it was not difficult to govern them authoritatively. The ignorance in which they were held, and the superstition in which they were instructed, furnished the means of doing it.

But when the ignorance is gone, and the superstition with it; when they perceive the imposition that has been acted upon them; when they reflect that the cultivator and the manufacturer are the primary means of all the wealth that exists in the world, beyond what nature spontaneously produces; when they begin to feel their consequence by their usefulness, and their right as members of society, it is then no longer possible to govern them as before. The fraud once detected cannot be re-acted. To attempt it is to provoke derision, or invite destruction.

That property will ever be unequal is certain. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.

In institutions that are purely pecuniary, such as that of a bank or a commercial company, the rights of the members composing that company are wholly created by the property they invest therein; and no other rights are represented in the government of that company than what arise out of that property; neither has that government cognizance of anything but property.

But the case is totally different with respect to the institution of civil government, organized on the system of representation. Such a government has cognizance of everything, and of every man as a member of the national society, whether he has property or not; and, therefore, the principle requires that every man, and every kind of right, be represented, of which the right to acquire and to hold property is but one, and that not of the most essential kind.

The protection of a man's person is more sacred than the protection of property; and besides this, the faculty of performing any kind of work or services by which he acquires a livelihood, or maintaining his family, is of the nature of property. It is property to him; he has acquired it; and it is as much the object of his protection as exterior property, possessed without that faculty, can be the object of protection in another person.

I have always believed that the best security for property, be it much or little, is to remove from every part of the community, as far as can possibly be done, every cause of complaint, and every motive to violence; and this can only be done by an equality of rights. When rights are secure, property is secure in consequence. But when property is made a pretense for unequal or exclusive rights, it weakens the right to hold the property, and provokes indignation and tumult; for it is unnatural to believe that property can be secure under the guarantee of a society injured in its rights by the influence of that property.

Next to the injustice and ill-policy of making property a pretense for exclusive rights, is the unaccountable absurdity of giving to mere sound the idea of property, and annexing to it certain rights; for what else is a title but sound? Nature is often giving to the world some extraordinary men who arrive at fame by merit and universal consent, such as Aristotle, Socrates, Plato, etc. They were truly great or noble. But when government sets up a manufactory of nobles, it is as absurd as if she undertook to manufacture wise men. Her nobles are all counterfeits.

This wax-work order has assumed the name of aristocracy; and the disgrace of it would be lessened if it could be considered only as childish imbecility. We pardon foppery because of its insignificance, and on the same ground we might pardon the foppery of titles. But the origin of aristocracy was worse than foppery. It was robbery. The first aristocrats in all countries were brigands. Those of later times, sycophants.

It is very well known that in England (and the same will be found in other countries), the great landed estates now held in descent were plundered from the quiet inhabitants at the Conquest. The possibility did not exist of acquiring such estates honestly. If it be asked how they could have been acquired, no answer but that of robbery can be given. That they were not acquired by trade, by commerce, by manufactures, by agriculture, or by any reputable employment, is certain.

How then were they acquired? Blush, aristocracy, to hear your origin, for your progenitors were thieves. They were the Robespierres and the Jacobins of that day. When they had committed the robbery, they endeavored to lose the disgrace of it by sinking their real names under fictitious ones, which they called titles. It is ever the practise of felons to act in this manner. They never pass by their real names.

As property, honestly obtained, is best secured by an equality of rights, so ill-gotten property depends for protection on a monopoly of rights. He who has robbed another of his property, will next endeavor to disarm him of his rights, to secure that property; for when the robber becomes the legislator he believes himself secure. That part of the Government of England that is called the House of Lords, was originally composed of persons who had committed the robberies of which I have been speaking. It was an association for the protection of the property they had stolen.

But besides the criminality of the origin of aristocracy, it has an injurious effect on the moral and physical character of man. Like slavery it debilitates the human faculties; for as the mind bowed down by slavery loses in silence its elastic powers, so, in the contrary extreme, when it is buoyed up by folly, it becomes incapable of exerting them, and dwindles into imbecility. It is impossible that a mind employed upon ribands and titles can ever be great. The childishness of the objects consumes the man.

It is at all times necessary, and more particularly so during the progress of a revolution, and until right ideas confirm themselves by habit, that we frequently refresh our patriotism by reference to first principles. It is by tracing things to their origin that we learn to understand them: and it is by keeping that line and that origin always in view that we never forget them.

An inquiry into the origin of rights will demonstrate to us that rights are not gifts from one man to another, nor from one class of men to another; for who is he who could be the first giver, or by what principle, or on what authority, could he possess the right of giving?

A declaration of rights is not a creation of them, nor a donation of them. It is a manifest of the principle by which they exist, followed by a detail of what the rights are; for every civil right has a natural right for its foundation, and it includes the principle of a reciprocal guarantee of those rights from man to man. As, therefore, it is impossible to discover any origin of rights otherwise than in the origin of man, it consequently follows, that rights appertain to man in right of his existence only, and must therefore be equal to every man.

The principle of an equality of rights is clear and simple. Every man can understand it, and it is by understanding his rights that he learns his duties; for where the rights of men are equal, every man must finally see the necessity of protecting the rights of others as the most effectual security for his own.

But if, in the formation of a constitution, we depart from the principle of equal rights, or attempt any modification of it, we plunge into a labyrinth of difficulties from which there is no way out but by retreating. Where are we to stop? Or by what principle are we to find out the point to stop at, that shall discriminate between men of the same country, part of whom shall be free, and the rest not?

If property is to be made the criterion, it is a total departure from every moral principle of liberty, because it is attaching rights to mere matter, and making man the agent of that matter. It is, moreover, holding up property as an apple of discord, and not only exciting but justifying war against it; for I maintain the principle, that when property is used as an instrument to take away the rights of those who may happen not to possess property, it is used to an unlawful purpose, as fire-arms would be in a similar case.

In a state of nature all men are equal in rights, but they are not equal in power; the weak cannot protect themselves against the strong. This being the case, the institution of civil society is for the purpose of making an equalization of powers that shall be parallel to, and a guarantee of, the equality of rights. The laws of a country, when properly constructed, apply to this purpose. Every man takes the arm of the law for his protection as more effectual than his own; and therefore every man has an equal right in the formation of the government, and of the laws by which he is to be governed and judged. In extensive countries and societies, such as America and France, this right in the individual can only be exercised by delegation, that is, by election and representation; and hence it is that the institution of representative government arises.

Hitherto, I have confined myself to matters of principle only. First, that hereditary government has not a right to exist; that it cannot be established on any principle of right; and that it is a violation of all principle. Secondly, that government by election and representation has its origin in the natural and eternal rights of man; for whether a man be his own lawgiver, as he would be in a state of nature; or whether he exercises his portion of legislative sovereignty in his own person, as might be the case in small democracies where all could assemble for the formation of the laws by which they were to be governed; or whether he exercises it in the choice of persons to represent him in a national assembly of representatives, the origin of the right is the same in all cases. The first, as is before observed, is defective in power; the second, is practicable only in democracies of small extent; the third, is the greatest scale upon which human government can be instituted.

Next to matters of principle are matters of opinion, and it is necessary to distinguish between the two. Whether the rights of men shall be equal is not a matter of opinion but of right, and consequently of principle; for men do not hold their rights as grants from each other, but each one in right of himself. Society is the guardian but not the giver. And as in extensive societies, such as America and France, the right of the individual in matters of government cannot be exercised but by election and representation, it consequently follows that the only system of government consistent with principle, where simple democracy is impracticable, is the representative system.

But as to the organical part, or the manner in which the several parts of government shall be arranged and composed, it is altogether matter of opinion. It is necessary that all the parts be conformable with the principle of equal rights; and so long as this principle be religiously adhered to, no very material error can take place, neither can any error continue long in that part which falls within the province of opinion.

In all matters of opinion, the social compact, or the principle by which society is held together, requires that the majority of opinions becomes the rule for the whole, and that the minority yields practical obedience thereto. This is perfectly conformable to the principle of equal rights: for, in the first place, every man has a right to give an opinion but no man has a right that his opinion should govern the rest. In the second place, it is not supposed to be known beforehand on which side of any question, whether for or against, any man's opinion will fall. He may happen to be in a majority upon some questions, and in a minority upon others; and by the same rule that he expects obedience in the one case, he must yield it in the other.

All the disorders that have arisen in France during the progress of the Revolution have had their origin, not in the principle of equal rights, but in the violation of that principle. The principle of equal rights has been repeatedly violated, and that not by the majority but by the minority, and that minority has been composed of men possessing property, as well as of men without property; property, therefore, even upon the experience already had, is no more a criterion of character than it is of rights.
It will sometimes happen that the minority are right, and the majority are wrong, but as soon as experience proves this to be the case, the minority will increase to a majority, and the error will reform itself by the tranquil operation of freedom of opinion and equality of rights. Nothing, therefore, can justify an insurrection, neither can it ever be necessary where rights are equal and opinions free.

Taking then the principle of equal rights as the foundation of the Revolution, and consequently of the Constitution, the organical part, or the manner in which the several parts of the Government shall be arranged in the Constitution, will, as is already said, fall within the province of opinion.

Various methods will present themselves upon a question of this kind, and though experience is yet wanting to determine which is the best, it has, I think, sufficiently decided which is the worst.
That is the worst, which in its deliberations and decisions is subject to the precipitancy and passion of an individual; and when the whole legislature is crowded into one body it is an individual in mass. In all cases of deliberation it is necessary to have a corps of reserve, and it would be better to divide the representation by lot into two parts, and let them revise and correct each other, than that the whole should sit together, and debate at once.

Representative government is not necessarily confined to any one particular form. The principle is the same in all the forms under which it can be arranged. The equal rights of the people is the root from which the whole springs, and the branches may be arranged as present opinion or future experience shall best direct. As to that hospital of incurables (as Chesterfield calls it), the British House of Peers, it is an excrescence growing out of corruption; and there is no more affinity or resemblance between any of the branches of a legislative body originating from the right of the people, and the aforesaid House of Peers, than between a regular member of the human body and an ulcerated wen.

As to that part of government that is called the executive, it is necessary in the first place to fix a precise meaning to the word. There are but two divisions into which power can be arranged. First, that of willing or decreeing the laws; secondly, that of executing or putting them in practise. The former corresponds to the intellectual faculties of the human mind which reasons and determines what shall be done; the second, to the mechanical powers of the human body that puts that determination into practise.

If the former decides, and the latter does not perform, it is a state of imbecility; and if the latter acts without the predetermination of the former, it is a state of lunacy. The executive department therefore is official, and is subordinate to the legislative, as the body is to the mind in a state of health; for it is impossible to conceive the idea of two sovereignties, a sovereignty to will and a sovereignty to act.

The executive is not invested with the power of deliberating whether it shall act or not; it has no discretionary authority in the case; for it can act no other thing than what the laws decree, and it is obliged to act conformably thereto; and in this view of the case the executive is made up of all the official departments that execute the laws, of which that which is called the judiciary is the chief.

But mankind have conceived an idea that some kind of authority is necessary to superintend the execution of the laws and to see that they are faithfully performed; and it is by confounding this superintending authority with the official execution that we get embarrassed about the term executive power. All the parts in the governments of the United States of America that are called the executive, are no other than authorities to superintend the execution of the laws; and they are so far independent of the legislative that they know the legislative only through the laws, and cannot be controlled or directed by it through any other medium.

In what manner this superintending authority shall be appointed, or composed, is a matter that falls within the province of opinion. Some may prefer one method and some another; and in all cases, where opinion only and not principle is concerned, the majority of opinions forms the rule for all.

There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.

I shall conclude this discourse with offering some observations on the means of preserving liberty; for it is not only necessary that we establish it, but that we preserve it.

It is, in the first place, necessary that we distinguish between the means made use of to overthrow despotism, in order to prepare the way for the establishment of liberty, and the means to be used after the despotism is overthrown.

The means made use of in the first case are justified by necessity. Those means are, in general, insurrections; for while the established government of despotism continues in any country it is scarcely possible that any other means can be used. It is also certain that in the commencement of a revolution, the revolutionary party permit to themselves a discretionary exercise of power regulated more by circumstances than by principle, which, were the practise to continue, liberty would never be established, or if established would soon be overthrown. It is never to be expected in a revolution that every man is to change his opinion at the same moment.

There never yet was any truth or any principle so irresistibly obvious that all men believed it at once. Time and reason must cooperate with each other to the final establishment of any principle; and therefore those who may happen to be first convinced have not a right to persecute others, on whom conviction operates more slowly. The moral principle of revolutions it to instruct, not to destroy.

Had a constitution been established two years ago (as ought to have been done), the violences that have since desolated France and injured the character of the Revolution, would, in my opinion, have been prevented. The nation would then have had a bond of union, and every individual would have known the line of conduct he was to follow. But, instead of this, a revolutionary government, a thing without either principle or authority, was substituted in its place; virtue and crime depended upon accident; and that which was patriotism one day became treason the next.

All these things have followed from the want of a constitution; for it is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, thus far shalt thou go and no further. But in the absence of a constitution, men look entirely to party; and instead of principle governing party, party governs principle.

An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.

- Thomas Paine, Paris: July, 1795.

"...few freemen died by the rope when they had arms in their hands..."

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"...Mr. Foote considered it an insult to place Mississipi on such a disgraceful position, as calling on her sons to make war on the General Government. When such a time did arise, he would deliberate and decide the question. When his State was assaulted--when she called to arms--when his fireside was invaded, he would have no difficulty in deciding where his allegiance was due. He would not in such a case pause to chop logic upon where his allegiance called him; his heart told him where that allegiance was due. He knew there were a great many persons in Mississipi who would be found to support her ordinances, and he would not consider them traitors for so doing. They might be called traitors, and the General Government might prepare the rope wherewith to hang them; but at this day it ought to be known that but a few freemen died by the rope when they had arms in their hands...."
- "Latest Intelligence", By Telegraph to The New-York Daily Times, XXXIId Congress....First Session, Senate, Washington, Dec. 16th. [The New York Times, Published: December 16, 1851]

"...As the Constitutions, generally, say..."

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Shooting In Sport

[Excerpt from an article titled "Shooting In Sport", in the Archives of the New York Times]

"...As the Constitutions, generally, say that the right of the people to bear arms shall not be infringed, it seems to be established that laws cannot be passed to forbid men from carrying fire-arms. But most of the States, probably, have laws declaring that these weapons shall not be carried concealed; whoever wears a pistol must wear it openly, so that his neighbors can see that he goes armed and may take care accordingly. Alabama has a stringent law of this kind. One man lately attempted to evade it by carrying in his pocket a pistol which could be taken apart and put together; the cylinder would unscrew from the barrel. He carried the pieces seperate, but they were all in readiness, and could be screwed together and put in order for use at short notice. He said the pieces of the pistol were not a weapon. But the court decided against him. An unloaded pistol cannot be fired, but would any one say that carrying an unloaded pistol in the pocket was not carrying a concealed weapn? Unless some essential part of the pistol is wholly wanting, so that it cannot be made useful, it is a weapon.

The courts continue to take the utmost pains to discourage the pernicious practice of brandishing pistols or pointing guns, whether loaded or unloaded. In Mississippi two men "loafing" in a country store were drawn into a petty quarrel arising from the rudeness of one, who was eating nuts, in scattering the shells about so that they hit the other. When the quarrel grew somewhat serious, the other ran forth from the store into the street. The shell-thrower followed, and, in the race, discharged a pistol. It was quite plain from all circumstances that he did not intend to hurt the runaway, or even to hit him; but meant only to alarm him, or demonstrate his own prowess, Therefore his lawyers argued that there was no criminal assault, for, they said, an intent to hurt is part of the very idea of an assault. The Judges said that this is a difficult question: Shall shooting in sport be judges by the intention of the "shootist" or by the apprehension of the "shootee"? The true rule is that no assault is commmitted when the person at whom the gun or pistol is aimed knows that is empty, and that the assailant does not intend to injure him, but is acting only in fun. But when he does not know these facts--when the circumstances are such as may reasonably lead him to believe that he is in danger--his rights are just as truly violated as if the intent were serious and the danger actual. Also the effect of such conduct to disturb the public peace is equally objectionable. Therefore they pronounced the make-believe shooter guilty.

The New York Times

Published: May 22, 1881

"The Sale Of Pistols." - Published: June 22, 1874

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The Sale Of Pistols.

(From the Archives of the New York Times)

Commenting, in our issue of Saturday. on the murder of Sullivan by Gill, we briefly suggested, as we have frequently done before, the propriety of including pistols in the law against carrying concealed weapons. It is certainly an anomaly that the weapon with which more than half the homicides and deadly assaults in this City are perpetrated should be exempted from the operations of a provision expressly intended to lessen the chances by limiting the facilities of murder. It is of no use to say that men shall not carry knives or slung-shots, if you permit them to carry indiscriminately and freely a weapon more deadly, and, at the same time, more popular, than either knife or slung-shot. Yet it would be useless to deny the existence of a general feeling in the commmunity that a law against carrying pistols would be a virtual disarmament of the law-abiding citizen, who would obey the statute, for the benefit of the lawless, who would persistently disregard it. That opinion was even expressed by a Magistrate on the bench, and is, no doubt, largely shared by the better portion of the community. Theoretically, the citizen has no occasion for weapons of self-defense. Practically we all know he has, and must at times, in any city however well governed and well policed.

The objection that such a law as that suggested would be disregarded by the very persons whom it was chiefly designed to reach, is not, of course, logically speaking, a valid objection. The disorderly and dangerous classes defy all laws, and their opposition is not only to be expected, but constitutes one of the chief necessities for making laws at all. Nevertheless, the objection will have weight with many, and may tend to the continuance of a practice which all good men must deprecate, if they do not condemn. The way to meet this argument has already been indicated in these columns. If it is impracticable to forbid the carrying of pistols outright, their sale should at least be so restricted as to furnish a partial guarantee against their getting into improper hands. This very murder is a striking instance of the danger resulting from the present looseness of the traffic in firearms. Gill quarreled with Sullivan, when by all the testimony, he was more than half drunk. In that condition he went directly from the dram-shop to a neighboring gun-shop, bought a revolver, which the clerk who sold it loaded at his request, and with the weapon so procured, went directly back and shot his victim dead. It is only necessary to state the facts to show the preposterousness of permitting every irresponsible shopkeeper to sell loaded pistols to every drunken and murderous ruffian who applies for them. Our druggists are not allowed thus to vend poison to every applicant, and somewhat the same restrictions should certainly be applied to the sale of firearms, at least to the sale of pistols. Shot-gunsand rifles are not yet here favorite implements of assassination, as in the South-west, and there is little danger that a man who buys them does so with a sinister intent. But pistols cannot safely be committed to every irresponsible hand, and in someway their sale should be regulated and subjected to Police supervision.

Nor need there be any apprehension that the just freedom of the citizen would thereby be infringed. The constitutional right to carry arms does not imply the right of every drunken loafer to bear about in his pocket the implements of murder. It is license, not liberty, that we seek to check, and we are sure that neither any reputable gunsmith, nor any reputable citizen, would object to such a restriction as that we propose. Men whom it was safe to trust with firearms could, without unnecessay trouble, prove that fact to the proper authorities, and obtain a suitable license. The other sort would then evade the regulation at their own peril. Our Police Magistrates would have no difficulty in deciding when a pistol was a"concealed weapon," in the full sense of the present statute, and when a legitimate weapon of
defense.

The New York Times
Published: June 22, 1874
Copyright The New York Times

And thus we see how that the individual Constitutional Right was PUBLICLY and NATIONALLY ADMITTED, as well as how the subversion started....

Now, let us examine the Constitutional FACTS concerning the aforementioned right, shall we?

"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, Federalist #28.

"The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation -- of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice."

- James Wilson, 'Of the Natural Rights of Individuals', 1790-1792 (Signed the Declaration of Independence and U.S. Constitution, Congressman, Delegate to the Constitutional Convention and U.S. Supreme Court Justice).

"Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers."

- Chief Justice John Marshall, U.S. Supreme Court. [As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]

"For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."

- Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822).

"Two propositions in our constitutional jurisprudence are no longer debatable. One is that the national government is one of enumerated powers; and the other, that a power enumerated and delegated by the Constitution to Congress is comprehensive and complete, without other limitations than those found in the Constitution itself.

"The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, [Page 199 U.S. 437, 449] while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them; and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Scott v. Sandford, 19 How. 393, 426, 15 L. ed. 691, 709:
"'It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.'
"It must also be remembered that the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them; putting into form the government they were creating, and prescribing, in language clear and intelligible, the powers that government was to take. Mr. Chief Justice Marshall, in Gobbons v. Ogden, 9 Wheat. 1, 188, 6 L. ed. 23, 68, well declared:
"'As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.'"
- Mr. Justice Brewer deliver[ing] the opinion of the court, U.S. Supreme Court, [South Carolina v. US, 199 U.S. 437 (1905)]

Indiana Politics. [N.Y. Times, Aug. 19, 1864]

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Indiana Politics.
___

Gov. Morton's Reply to a Treasonable Democratic Address.

The Indianapolis papers publish a paper issued by Gov. Morton of Indiana, in reply to an address put forth by the Democratic State General Committee as an electioneering document.

The Governor says:

"The assumption that there is a well-founded apprehension that those in authority in this State will interfere by military power with the freedom of elections is absolutely and wickedly false. There is not one fact upon which suchan apprehension can be based; not a circumstance can be referred to in the political or military history of the State, during the existence of this war, justifying or suggesting the charge. It is true that this charge has been made before,but always without an element of truth, for the simple purpose of exciting and goading the people into illegal, disloyal and dangerous organizations, and demonstrations against Federal and State authority.

So far as my administration is concerned, I can safely defy the authors of this document to point out a single act giving color to this wicked and infamous charge, or to show a single instance in which I have failed to exercise the executive power for the protection of persons and property and social and civil rights, without regard to parties or politics. While serving as the Governor of Indiana I have endeavored to act for the whole people, and not for a party, and shall so continue, regardless of all assaults or asperations. At the same time I shall not hesitate to vindicate legitimate authority, no difference under what pretence or by what method it may be assailed. So far as the approaching elections are concerned, they shall, to the extent of the power vested in me, be open and free, and every legitimate voter be protected in the unrestrained and deliberate exercise of the elective franchise. This is my purpose, nor has there ever been any reason to doubt it, and I cannot, under the pretence that I am about to violate my duty, tolerate the formation of any dangerous or illegal military organizations, the true purpose of which is to resist the State and Federal authority, overawe the people, control the elections, and thus accomplish the very thing against which it is hypocritically pretended they are to guard. It is true that phrases about "open lawful organizations," "defense against invasions," &c., are introduced in the second clause of the address, but they do not in the least disguise its effect and purpose. It assumes that those in authority are about to violate the law, and urges the formation of military organizations to prevent such violation, they being the judges of the existence, extent and remedy for such violations. Such has been the history of all revolutions and civic troubles. The people have been arrayed against the Government upon the real or assumed pretext that acts of tyranny had been or are about to be perpetrated, justifying and demanding military resistance.

Need I argue to an intelligent people that the state of things recommended by this document would inevitably lead to collisions and civil war, the end and consequences of which no man can predict. While it purports to be addressed to the people of the State generally, it is intended for those only who belong to the political organization which its authors assume to represent. Should its recommendations be followed, men belonging to other political organizations will feel their personal and political safety endangered, and would be driven for purposes of self-defense to resort to similar measures Thus we should have two or more political parties in the State, armed and organized into military bodies, and all hopes of preventing collisions and preserving peace and order would be lost. Military organizations must be under the supervision and control of the constituted authorities of the State. All others are illegal, unauthorized and dangerous to the public peace. The constitutional right of the people to bear arms for their own defense has not been and will not be infringed. But this does not cover the case or justify the formation of military organizations to hold the constituted authorities in check under the pretence that they are about to commit illegal or unconstitutional acts*.....

...Given at the Executive Department, this 16th day of August, A.D. 1864.
O.P Morton, Governor of Indiana.

The New York Times [Archives]

Published: August 19, 1864
Copyright The New York Times

Also See:

Oliver P. Morton to Edwin M. Stanton, "10.000 stand of good arms be furnished as early as possible for the use of our loyal citizens", June 25, 1862

* - REALLY? Care to explain the following then? -

"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, Federalist #28.

"...Self defence is a primary law of nature, which no subsequent law of society can abolish; this primæval principle, the immediate gift of the Creator, obliges every one to remonstrate against the strides of ambition, and a wanton lust of domination, and to resist the first approaches of tyranny, which at this day threaten to sweep away the rights for which the brave sons of America have fought with an heroism scarcely paralleled even in ancient republicks...."

- Elbridge Gerry, Observations On the new Constitution, and on the Federal and State Conventions. By a Columbian Patriot. Sic transit gloria Americana. [Boston: 1788.]

"That no man should scruple, or hesitate a moment to use arms in defense of so valuable a blessing [as liberty], on which all the good and evil of life depends; is clearly my opinion; yet Arms...should be the last resort."

- George Washington, 1789 letter to George Mason. [The True George Washington, 10th Ed. By Paul Leicester Ford.]

"The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation -- of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice."

- James Wilson, 'Of the Natural Rights of Individuals', 1790-1792 (Signed the Declaration of Independence and U.S. Constitution, Congressman, Delegate to the Constitutional Convention and U.S. Supreme Court Justice).

"Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers."

- Chief Justice John Marshall, U.S. Supreme Court. [As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]

"No, surely, No! they meant to drive us into what they termed rebellion, that they might be furnished with a pretext to disarm and then strip us of the rights and privileges of Englishmen and Citizens."

- George Washington, March 1, 1778 letter to Bryan Fairfax, Valley forge.

IMPORTANT FROM KANSAS. [N.Y. Times July 12, 1859.]

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IMPORTANT FROM KANSAS.
_______

The Constitutional Convention.
_______

BILL OF RIGHTS.
_______

Correspondence of the New York Times.
Wyandot, Tuesday, July 12, 1859.

The Committee appointed by the Constitutional Convention to prepare and report a Preamble and Bill of Rights, have submitted the following:

PREAMBLE.

Existence was the first gift of Omnipotence to man. It is the end of the institution and administration of Government to secure to every individual perfect freedom to enjoy in safety and tranquility the rights and blessings of that existence; and whenever these great objects are not obtained, the people have a right to institute a new government, and take measures necessary for their protection and happiness.

The body politic is formed by a voluntary association of indiviuals; it is a community in covenant, where the whole people treats with each citizen, and each citizen treats with the whole people, that all shall be governed by certain laws for the common good. It is therefore, the duty of the people, in framing their Organic Law, to provide for an equitable mode of making laws, as well as an impartial interpretation and a faithful execution of them, that every citizen may at all times find security in them.

We, therefore, the people of Kansas, acknowleging, with grateful hearts, the goodness of the Great Legislator and Preserver of the Universe in affording us an opportunity, peaceably and without fraud or violence, of entering into an original. explicitand solemn compact with each other, and of forming a Constitution of civil government for ourselves and our posterity; having the right of admission into the union as one of the American States consistent with the Federal Constitution and by virtue of the treaty of cession by France to the United States of the province of Louisiana; believing that the right of self=governmentis inherent, and should be asserted in accordance with the popular will and Federal Constitution, do ordain and establish the following Constitution as the fundamental law of a free and independent State, by the name and style of the State of Kansas, bounded as follows, to wit: Beginning at a point on the western boundry of the State of Missouri where the thirty-seventh parallel of north latitude crosses the same, thence westward on said parallel to the twenty-fifth parallel of longitude west from Washington, thence north on said parallel to the fortieth parallel of latitude, thence cast on said parallel to the western boundry of the State of Missouri, thence south with the western boundry of said State to the place of beginning.

ARTICLE I.

BILL OF RIGHTS.

Section 1. All men are by nature equally free and independent, and have certain inalienable rights, among which are those of enjoying and defending their lives and liberties, acquiring. possessing, and protecting property, and of seeking and obtaining happiness and safety, and the right of all men to the control of their persons, exists prior to law and is inalienable.

Sec. 2. All political power is inherent in the People, and all free Governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the General Assembly which may not be altered, revoked or repealed by a two thirds vote of the same body, and this power shall be exercised by no other tribunal or agency.

Sec. 3 The people have the right to assemble, in a peaceable manner, to consult for their common good, to instruct their Representatives and to petititon the General Assembly for redress of the grievances.

Sec. 4. The people have the right to bear arms for their defense and security, but standing armies, in times of peace, aredangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.

Sec. 5. The right of trial by jury shall be inviolate, and extend to persons of every condition; but a jury trial may bewaived by the parties in all cases, in the manner prescribed by law.

Sec. 6. There shall be no Slavery in this State, and no involuntary servitude, unless for the punishment of crime, whereofthe parties shall have been duly convicted.

Sec. 7. The right of every man to worship God according to the dictates of his own conscience shall never be infringed...."

The New York Times [Archives]

Published: July 20, 1859

__________

Also See:

Letter from Gov. Grimes To President Pierce, N.Y. Times, Oct. 14, 1856

The New Kansas Bill - Speech of William H. Seward, U.S. Senate, July 2, 1856

The New Kansas Bill

Letter from Gov. Grimes To President Pierce, N.Y. Times, Oct. 14, 1856

2008-05-06T18:27:00.000-07:00

Letter from Gov. Grimes To President Pierce.

Executive Office, Iowa.

Burlington, Wednesday, Aug. 20, 1856.

(From the Archives of The New York Times)

To His Excellency, Franklin Pierce, President of theUnited States:

SIR: During the last twelve months I have been constantly receiving letters, memorials and affidavits from former citizens of Iowa, now residents of the Territory of Kansas, alleging that they are not protected by the United States' officers in that Territory, in the enjoyment of their liberty and property.

They charge, and the evidence fully supports the charge, that at the first, and at each subsequent Territorial election, armed bodies of men from an adjacent State invaded the Territory, took possession of the polls, deprived the actual settlers of the right of sufferage, and perpetrated gross outrages upon such citizens as professed political sentiments disagreeable to the invaders. By threats and lawless violence, they secured the election of a majority of the members of the Legislative Assembly,--many of whom were then, and are now, citizens of another State. By this Assembly a code of laws was enacted, unparalleled in the history of legislation; laws plainly unconstitutional, and which no man with the spirit of a freeman could obey without personal dishonor and a violation of his conscience.

In this condition of things, and without any attempt tp repel violence by violence, the people of Kansas sought apeaceful remedy for the wrongs that had been perpetrated, by forming a State Constitution, electing State officers, and asking admission into the Union as a sovereign State.

Although the Constitution of the United States declares that treason "shall consist only in levying war," yet a man holding a commission under the seal of the United States, and exercising the office of Chief Justice in that Territory, has declared that the persons who accepted offices under the State Constitution, are guilty of treason.

Under his instructions the State officers have been indicted, arrested and bail denied them, under the pretence ofjudicial proceedings, but without a trial or hearing of any kind. An armed posse has invaded the town of Lawrence, and destroyed printing presses, private buildings, and a hotel. Human lives have been sacrificed, property, to a large amount, has been destroyed, citizens have been driven from the Territory by violence, and anarchy and disorder every-where prevail.

Among the sufferers have been former citizens of Iowa, who went to Kansas in no spirit of propgandism, but with the intention of becoming permanent residents of that Territory. Three of them have been slain by arms said to have been placed by a Federal officer in the hands of a band of outlaws from a remote State. Some have been compelled to flee from the Territory for no offense save that of having emigrated from a Free State; whilst others remain there, stripped of their property, and appeal to their fellow-citizens of Iowa for sympathy and protection.

In my conviction, their appeals should not be in vain. They went to Kansas, relying upon and has a right to expect the protection of the General Government. In this expectation they have been disappointed. Citizenship has been virtually denied them. Their right to defend themselves and "to keep and bear arms" has been infringed by the act of the Territorial officers, who have wrested from them the means of defense, while putting weapons of offence into the hands of their enemies. They have been oppressed by a code of laws unequaled in atrocity in modern times. The character and conduct of theTerritorial judges have shown that an appeal to the judicial tribunal is worse than useless.

The General Government having failed to perform its duty by protecting the people of Kansas in the enjoyment of their rights, it is manifestly the right of the States to adopt measures to protect its former citizens. If the people of Iowa are not permitted to enjoy the rights of citizenship in that Territory, they retain their former citizenship in this State, and are as much entitled to protection from the State while upon the public domain, as they would be if the General Government failed to protect them in a foreign country.

While I write, an army, raised in the State of Missouri, is marching into Kansas with the avowed purpose of driving out all those citizens of the Territory who emigrated from the Free States, and who express a preference for a Free State Constitution. Another armed body of men have placed themselves on the emigrant route from the State of Iowa to prevent, at the point of the bayonet, any further emigration from this State.

The State of Iowa cannot be an indifferent spectator of these acts of lawless violence. She demands that her citizens shallbe protected in Kansas, and stand upon on equality there with the citizens of other States. She will not submit to the closing of the immigrant route through her domain into that Territory.

As the Executive of Iowa, I demand for her citizens in Kansas protection in the enjoyment of their property, their liberty, and their political rights. I ask that the military forces on the line of emigration into the Territory be dispersed.

A compliance with these reasonable requests will tend to restore peace in Kansas and quiet the public mind of this State.In the event of a non-compliance in my view a case will have arisen clearly within the principle laid down by Mr. Madisonin the Virginia resolutions of 1798, when it will be the duty of the States "to interpose to arrest the progress of theevils" in that Territory. I am respectfully,

Your obedient servant,

James W. Grimes, Governor of Iowa.

Published: October 14, 1856

Also See:

The New Kansas Bill - Speech of William H. Seward, U.S. Senate, July 2, 1856

The New Kansas Bill - Speech of William H. Seward, U.S. Senate, July 2, 1856

2008-05-06T10:21:00.000-07:00

The New Kansas Bill.

_____

(From the Archives of The New York Times)

"...I stand now by my own bill, which I maintain to be preferable to the last bill of the Committee, as it was to the first. Some honor Senators seem to think that it is unreasonable that I do not give up my own bill, and come down and accept the new one, which they are inclined to treat as a compromise between my own bill for the immediate admission of Kansas, under the Topeka Constitution, and the first bill of the Committee on Territories. Why should I surrender my own bill? If it was wise, just, and necessary, when I presented it to the Senate, it is as just, wise, and necessary now. It was wise, just, and necessary then, if the circumstances under which the Constitution of Kansas was adopted were then truly stated and set forth by me, in my argument delivered in the Senate. In making that argument, I had to rely on probable evidence, for no other evidence then existed. Now, a Committee of the House of Representatives, after having diligently inquired on oath, have ascertained and confirmed the truth of the circumstances of Kansas which Ithen assumed. I state those circumstances anew, on the present occasion, in the moderate and guarded conclusions of the Committee of the House of Representatives:

"Spurious and pretended Legislative, Judicial, and Executive officers have been set over them, by whose usurped authority, sustained by the military power of the Government, tyrannical and unconstitutional laws have been enacted and enforced:

The rights of the people to keep and bear arms have been infringed;

Test oaths, of an extraordinary and entangling nature have been imposed as a condition of exercising the right of sufferage and holding office;

The right of an an accused person to a speedy and public trial by an impartial Jury has been denied;

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, has been violated;

They have been deprived of life, liberty, and property, without due process of law;

The freedom of speech and of the press has been abridged;

The right to choose their Representatives has been made of no effect;

Murders, robberies, and arsons, have been instigated and encouraged, and the offenders have been allowed to go unpunished;

All these things have been done with the knowledge, sanction, and procurement, of the present Administration." ..."

"....Published July 14, 1856

Would highly recommend reading the whole speech of Mr. Seward. As it covers quite a bit of ground as to how a Constitutional Republic can, and has been, subverted....

Also See:

The New Kansas Bill, The New York Times, Published July 4, 1856.

Journal of the House of Representatives of the United States, "And the people of said Territory shall be entitled to the right to keep and bear arms...", June 28, 1856.

Journal of the Senate of the United States of America, "...nor shall the rights of the people to keep and bear arms be infringed...", July 8, 1856.

As well as the following from the United States Supreme Court during the same year as all of the above:

"...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...."

- U.S. Supreme Court decision of 1856 in Dred Scott v.Sandford.

Oh, and before I forget, please take notice how that there is not one mention of the word "militia" in ANY of the above LEGAL historical documents....

The New Kansas Bill.

2008-05-05T22:34:00.000-07:00

(From the Archives of The New York Times)

The New Kansas Bill.

______

The New Bill Reported by Senator Douglas for the Government of Kansas. In The Senate Of The United States June 30, 1856.

Mr. Douglas, from the Committee on Territories, to whom was re-committed the bill (S. 172) "to authorize the people of the Territory of Kansas to form a Constitution and State Government, preparatory to their admission into the Union, when they have the requisite population," and several amendments proposed thereto, submitted a report, accompanied by the following bill, which was read twice, considered as in Committe of the whole, and postponed until to-morrow: ..."

"...SEC. 18. And be it further enacted, That inasmuch as the Constitution of the United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and petition for the redress of grievances; the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant 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; nor shall the rights of the people to keep and bear arms be infringed. No person shall beheld to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation. In all criminal prosecution the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process of obtaining witnesses in his favor, and to have the assistance of counsel for his defence. The privilege of habeas corpus shall not be suspended unless when in case of rebellion or invasion, the public safety may require it. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by jury shall be otherwise reexamined in any Court of the United States than according to the rules of the common law. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusualpunishment inflicted.

"SEC. 19. And be it further enacted, That the following propostions be, and the same are hereby, offered to the said convention of the people of Kansas for their free acceptance or rejection, which, if accepted by the convention, shall be obligatory on the United States and upon the said State of Kansas, to wit: ...."

- The New York Times, Published July 4, 1856.

Hmmmm, that seems quite a bit like the earlier versions of the bill:

Journal of the House of Representatives of the United States, "And the people of said Territory shall be entitled to the right to keep and bear arms...", June 28, 1856.

Journal of the Senate of the United States of America, "...nor shall the rights of the people to keep and bear arms be infringed...", July 8, 1856.

Although, the excerpt above was entered into the PUBLIC RECORD for ALL to see at that time. Strange, but there isn't one mention of the word "militia".....

The "Right To Bear Arms.", N.Y. Times article of Dec. 5, 1903:

2008-05-04T09:33:00.001-07:00

The New York Time Archives

The New York Times, Published: December 5, 1903

The drastic municipal ordinance recommended by Mayor Harrison of Chicago for the suppression of crimes against the person by discouraging and penalizing the ownership and carrying of deadly weapons of offense or defense does not seem to have evoked a chorus of enthusiastic popular approval. It is proposed to license both the seller and the buyer of firearms. Dealers who sell such implements are to be required to give a bond in $500 for a selling license, and every sale must be reported to the police. No person is allowed to own a gun or pistol without a license, and such license to own is not to confer the right to carry. This will be permitted only in the case of persons of attested good character upon a written application giving all the particulars needed for immediate and absolute police identification and upon the showing of a sufficient reason for asking such permission. The pattern and number of every registered weapon is to be recorded, also date of purchase, name of person making the sale, and the name of the buyer. All firearms licenses are to be revocable at the pleasure of the Mayor. There is more in the proposed ordinance to the same general effect, much of which is in apparent contravention of the Federal Constitution, but that is not the aspect in which it assumes popular interest and excites unfavorable discussion.

The objection to local legislation of this character is that it is futile. Persons who want weapons and cannot buy them in Chicago will buy them anywhere in the United States outside the municipal limits. They can keep them indefinitely without making themselves amenable to the penalties prescribed prescribed, since the fact of having them cannot be ascertained by the police without a house-to-house vistitation with search warrants. The most serious aspect of the matter, however, is found in the fact that persons desiring firearms for improper purposes will pay no attention to the ordinance, and law-abiding citizens who voluntarily comply with it will find themselves at a disadvantage in defending their lives and their property against thugs and burglars. That such irresponsible young desperadoes as the car-barn bandits would be deterred from procuring or using firearms by such an ordinance as Mayor Harrison approves and desires to have enacted no one can seriously believe. It is much more probable, indeed, that they would be emboldened by the assurance that those most likely to be selected as victims in their career of mercenary murder would be in all probability defenseless. The reorganization of the Chicago police force would seem to promise much more important results than can be expected to follow action along the lines of Mayor Harrison's suggestion.

PATERSON'S MAYOR ISSUES PROCLAMATION

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(Excerpted from the N.Y. Times Archives Monday June 23, 1902)

PATERSON'S MAYOR ISSUES PROCLAMATION
____________________________________
Citizens Reminded of the City Ordinances Against Firearms.
__________________________
All Quiet Throughout the Streets -- The Military in Control -- Weavers Divided as to Question of Returning to the Mills.
________________
PATERSON, N.J., June 22. -- This has been an excedingly quiet day. The fine weather caused a large portion of the citizens to take trips to resorts, and, although there were many visitors from out of town attracted to see the soldiers on duty, there was nothing like a crowd gathered at any point during the day. When there was any manifistation on the part of the curious to stop and watch the soldiers, the police on patrol were quickly on hand with requests to move on.
During the early morning hours the police searched two buildings on Straight Street for arms. During the last week the supply of firearms in all the stores handling such goods in this city has been cleaned out. Almost anything in the shape of a pocket firearm has commanded a ready sale. Probably the greater part of the purchasers have been men bent on protecting themselves in case of trouble in the city, but still it is reasonable to suppose that the disorderly element has also been preparing for a possible collision with the authorities.
A frequent source of annoyance to the police during the last few days has been the setting off of firecrackers and similar noise-producing agencies in the streets. These, when set off out of sight of a policeman, cannot be told from a pistol shot, and there have been several scares caused by the too early celebration of the coming Fourth of July.
THE MAYOR'S PROCLAMATION.
With these facts and others in view, the city to-night was placarded with the following proclamation:
A PROCLAMATION
TO WHOM IT MAY CONCERN.
Whereas, In consequence of the conditions at present existing in our city, and of the efforts that are being made by the authorities of the Municipal, County and State Governments to establish and to preserve law and order in this city, it is deemed advisable that the citizens and residents of this city should co-operate and render every assistance: and
Whereas, At this season of the year the explosion of firearms and fireworks is more frequent than at any other time: and
Whereas, The frequent explosion fireworks, firearms, firecrackers, torpedoes, and other explosives in the streets and public places of our city is likely to cause persons to assemble together in crowds and create public disorder: and
Whereas, Under the ordinances of the City of Patterson, all persons are prohibited from firing or discharging any cannon, gun, fowling piece, revolver, pistol, or fireworks of any description, in the streets or public places of said city: and
Whereas, It is also provided by ordinance that it is unlawful to manufacture or store gunpowder, nitroglycerin, or other explosive material within the limits of said city: and
Whereas, also, It is provided by statute that it is unlawful for any person not a police officer or other peace officer to carry concealed upon his person any offensive or dangerous weapon, without permission of the police authorities of said city.
Now, therefore, I, John Hinchliffe, Mayor of the said City of Paterson, do hereby command that all persons within the limits of the said City of Paterson do observe and do refrain from violating the provisions of the ordinances and laws above mentioned: and I do hereby further direct and order that all police officers, constables, and other peace officers shall be vigilant and active in enforcing the said ordinances and laws, and in apprehending all persons guilty of violating the same, that they may be dealy with according to law.
Given under my hand and seal, this twenty-first day of June, A.D. 1902.
JOHN HINCHLIFFE,
Mayor.
There has been considerable fear expressed that, under the guise of an early celebration of the Nation's birthday, a crowd might be gathered and trouble started.
POLICE SEARCH FOR ARMS. ...

Hmmmm, reminds me of similar scenario along the same lines from the early 1800's:

A PROCLAMATION, Mayor's Office, Washington, Dec. 23, 1828

James Madison Expounds on the Constitution....

2008-04-14T11:18:00.002-07:00

"A Constitution, being derived from a superior authority, is to be expounded and obeyed, not controlled or varied by the subordinate authority of a legislature. A law, on the other hand, resting on no higher authority than that possesses by every successive legislature, its expediency, as well as its meaning, is within the scope of the letter...."
"...Can it be of less consequence that the meaning of a Constitution should be fixed and known, than that the meaning of a law should be so? Can, indeed, a law be so fixed in its meaning and operation, unless the Constitution be so? On the contrary, if a particular legislature, differing, in the construction of the Constitution, from a series of preceeding constructions, proceed to act on that difference, they not only introduce uncertainty and instability in the Constitution, but in the laws themselves; inasmuch as all laws preceding the new construction, and inconsistent with it, are not only annulled for the future, but virtually pronounced nullities from the beginning."
- James Madison, "Madison's Letter On The Constitutionality Of The Bank Of The United States", June 25, 1831. [Elliot's Debates, Volume 4. Appendix.--Madison on Banks, Pg. 615.]
"If it be asked why the terms "common defense and general welfare," if not meant to convey the comprehensive power which, taken literally, they express, were not qualified and explained by some reference to the particular power subjoined, the answer is at hand -- that, although it might easily have been done, and experience shows it might be well if it had been done, yet the omission is accounted for by an inattention to the phraseology, occasioned, doubtless, by the identity with the harmless character attached to it in the instrument from which it was borrowed [Articles of Confederation].
"But may it not be asked, with infinitely more propriety, and without the possibility of a satisfactory answer, why, if the terms were meant to embrace, not only all the powers particularly expressed, but the indefinite power which has been claimed under them, the intention was not so declared; why, on that supposition, so much critical labor was employed in enumerating the particular powers, and in defining and limiting their extent?
"The variations and vicissitudes in the modification of the clause in which the terms "common defense and general welfare" appear, are remarkable, and to be no otherwise explained than by differences of opinion concerning the necessity or the form of a constitutional provision for the debts of the revolution; some of the members apprehending improper claims for losses, by depreciated bills of credit; others, an evasion of proper claims, if not positively brought within the authorized functions of the new government; and others again, considering the past debts of the United States as sufficiently secured by the principle that no change in the government could change the obligations of the nation. Besides the indications in the Journal, the history sanctions this explanation.
"But it is to be emphatically remarked, that, in the multitude of motions, propostions, and amendments, there is not a single one having reference to the terms "common defense and general welfare," unless we were so to undewrstand the proposition containing them, made on August 25th, which was disagreed to by all the states except one."The obvious conclusion to which we are brought is, that these terms, copied from the Articles of Confederation, were regarded in the new, as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therfore requiring no critical attention or studied precaution...."
"...Mr. Wilson, justly distinguished for his intellectual powers, being deeply impressed with the importance of a bank at such a crisis, published a small pamphlet, entitled "Considerations on the Bank of North America," in which he endeavored ro derive the power from the nature of the Union, in which the colonies were declared and became independent states, and also from the tenor of the "Articles of Confederation" themselves. But what is particularly worthy of notice is, that, with all his anxious search in those Articles for such a power, he never glanced at the terms "common defense and general welfare" as a source of it. He rather chose to rest the claim on a recital in the text, "that, for the more convenient management of the general interests of the United States, delegates shall be annually appointed to meet in Congress," which, he said, implied that the United States had general rights, general powers, and general obligations, not derived from any particular state, nor from all the particular states, taken seperately, but resulting from the Union of the whole;" these general powers not being controlled by the article declaring that each state retained all powers not granted by the Articles, because "the individual states never possessed, and could not retain, a general power over the others."
"The authority and argument here resorted to, if proving the ingenuity and patriotic anxiety of the author, on one hand, show sufficiently, on the other, that the term "common defence and general welfare" could not, according to the known acceptation of them, avail his object.
"That the terms in question were not suspected, in the Convention which formed the Constitution, of any such meaning as has been constructively applied to them, may be pronounced with entire confidence; for it exceeds the possibility of belief, that the known advocates, in the Convention, for a jealous grant ans cautious definition of federal powers, should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and definitions elaborated by them.
"Consider, for a moment, the immeasurable difference between the Constitution, limited in its powers to the enumerated objects, and expanded as it would be by the import claimed for the phraseology in question. The difference is equivalent to two constitutions, of characters essentially contrasted with each other; the one possessing powers confined to certain specified cases, the other extended to all cases whatsoever. For what is the case that would not be embraced by a general power to raise money, a power to provide for the general welfare, and a power to pass all laws necessary and proper to carry these powers into execution -- all such provisions and laws superseding, at the same time, all local laws and constitutions at variance with them? Can less be said, with the evidence before us furnished by the Journal of the Convention itself, than that it is impossible that such a constitution as the latter would have been recommended to the states by all the members of that body whose names were subscribed to the instrument?
"Passing from this view of the sense in which the terms "common defence and general welfare" were used by the framers of the Constitution, let us look for that in which they must have been understood by the conventions, or rather by the people, who, through their conventions, accepted and ratified it. And here the evidence is, if possible, still more irresistible, that the terms could not have been regarded as giving a scope to federal legislation infinitely more objectionable than any of the specified powers which produced such strenuous opposition, and calls for amendments which might be safeguards against the dangers apprehended from them.
"Without recurring to the published debates of those conventions, which, as far as they can be relied on for accuracy, would, it is believed, not impair the evidence furnished by their recorded proceedings, it will suffice to consult the list of amendments proposed by such of the conventions as considered the powers granted to the government too extensive, or not safely defined.
"Besides the restrictive and explanatory amendments to the text of the Constitution, it may be observed, that a long list was premised under the name and in the nature of "Declarations of Rights;" all of them indicating a jealousy of the federal powers, and an anxiety to multiply securities against a constructive enlargement of them. But the appeal is more particularly made to the number and nature of the amendments proposed to be made specific and integral parts of the constitutional text.
"No less than seven states, it appears, concurred in adding to their ratifications a series of amendments, which they deemed requisite. Of these amendments, nine were proposed by the Convention of Massachusetts, five by that of South Carolina, twelve by that of New Hampshire, twenty by that of Virginia, thirty-three by that of New York, twenty-six by that of North Carolina, and twenty-one by that of Rhode
Island.
"Here are a majority of the states proposing amendments, in one instance thirty-three by a singe state, all of them intended to circumscribe the power granted by them to the general government, by explanations, restrictions, or prohibitions, without including a single proposition from a single state referring to the terms "common defense an general welfare;" which, if understood to convey the asserted power, could not have failed to be the power most strentuously aimed at, because evidently more alarming in its range than all the powers objected to put together. And that the terms should have passed altogether unnoticed by the many eyes which saw danger in terms and phrases employed in some of the most minute and limited of the enumerated, must be regarded as a demonstration that it was taken for granted that the terms were harmless, because explained and limited, as in the "Articles of Confederation," by the enumerated powers which followed them.
"A like demonstration that these terms were not understood in any sense that could invest Congress with powers not otherwise bestowed by the constitutional charter, may be found in what passed in the first session of Congress, when the subjects of amendment were taken up, with the conciliatory view of freeing the Constitution from objections which had been made to the extent of its powers, or to the unguarded terms employed in describing them. Not only were the terms "common defence and general welfare" unnoticed in the long list of amendments brought forward in the outset, but the Journals of Congress show that, in the progress of the discussions, not a single proposition was made, in either branch of the legislature, which referred to the phrase as admitting a constructive enlargement of the granted powers, and requiring an amendment guarding against it. Such a forbearance and silence on such an occasion, and among so many members who belonged to the part of the nation which called for explanatory and restrictive amendments, and who had been elected as known advocates for them, cannot be accounted for without supposing that the terms "common defence and general welfare" were not, at that time, deemed susceptible of any such construction as has been applied to them.
"It may be thought, perhaps, due to the subject, to advert to a letter of October 5, 1787, to Samuel Adams, and another, of October 16, of the same year, to the governor of Virginia, from R.H. Lee, in both of which it is seen that the terms had attracted his notice, and were apprehended by him "to submit to Congress every object of human legislation." But it is particularly worthy of remark that, although a member of the Senate of the United States, when amendments to the Constitution were before that house, and sundry additions and alterations were there made to the list sent from the other, no notice was taken of those terms as pregnant with danger. It must be inferred that the opinion formed by the distinguished member, at the first view of the Constitution, and before it had been fully discussed and elucidated, had been changed into a conviction that the terms did not fairly admit the construction he had originally put on them, and therefore needed no explanatory precaution against it."
- James Madison, Nov. 27, 1830 letter to Mr. Stevenson. [Elliot's Debates, Volume 4. Appendix.--Madison Letter on Debts, Pg. 612 - 615.]

Interesting reading, isn't it? Now let's examine what Mr. Madison, and the people he referenced above, had to state about our Natural Right:

“[Tyranny cannot be safe] without a standing army, an enslaved press, and a disarmed populace.”
- James Madison, autobiography.
"The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation -- of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice."
- James Wilson, 'Of the Natural Rights of Individuals', 1790-1792 (Signed the Declaration of Independence and U.S. Constitution, Congressman, Delegate to the Constitutional Convention and U.S. Supreme Court Justice).
"Natural Rights of the Colonists as Men.
"Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature...."
"...When men enter into society, it is by voluntary consent; and they have a right to demand and insist upon the performance of such conditions and previous limitations as form an equitable original compact. Every natural right not expressly given up, or, from the nature of a social compact, necessarily ceded, remains...."
"...In the state of nature every man is, under God, judge and sole judge of his own rights and of the injuries done him. By entering into society he agrees to an arbiter or indifferent judge between him and his neighbors; but he no more renounces his original right than by taking a cause out of the ordinary course of law, and leaving the decision to referees or indifferent arbitrators..."
"...The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but only to have the law of nature for his rule...."
"...In short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defence of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave..."
- Samuel Adams, in a collaborative work with Benjamin Franklin, titled 'The Rights of the Colonists', (actual title; 'The Report of the Committee of Correspondence to the Boston Town Meeting'), dated Nov. 20, 1772.

"[W]hereas, to preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them; nor does it follow from this, that all promiscuously must go into actual service on every occasion. The mind that aims at a select militia, must be influenced by a truly anti-republican principle; and when we see many men disposed to practice upon it, whenever they can prevail, no wonder true republicans are for carefully guarding against it."
- Richard Henry Lee, The Pennsylvania Gazette, Feb. 20, 1788.

In all REALITY, instead of A.T.F., it should be: A.T.P.;

2008-03-26T16:01:00.000-07:00

Alcohol
Tobacco
& Pornography
For, "Firearms" are NOT a 'vice', but a Right....

D.C. v. Heller, U.S. Supreme Court Case 07-290, March 18, 2008 - With historical quotations and linked references provided

2008-03-22T01:46:00.019-07:00

IN THE SUPREME COURT OF THE UNITED STATES

- - - - - - - - - - - - - - - - -

DISTRICT OF COLUMBIA,

ET AL.,

Petitioners

DICK ANTHONY HELLER

- - - - - - - - - - - - - - - -

Washington, D.C.

Tuesday, March 18, 2008

The above-entitled matter came on for oral

argument before the Supreme Court of the United States

at 10:06 a.m.

(With historical quotations and linked references provided).

APPEARANCES

WALTER DELLINGER, ESQ., Washington, D.C.; on behalf of the Petitioners. GEN. PAUL D. CLEMENT, ESQ., Solicitor General, Department of Justice, Washington, D.C.; on behalf Of the United States, as amicus curiae, supporting the Petitioners. ALAN GURA, ESQ., Alexandria, Va.; on behalf of the Respondent.

(10:06 a.m.)

CHIEF JUSTICE ROBERTS: We will hear argument today in Case 07-290, District of Columbia versus Heller.

Mr. Dellinger.

ORAL ARGUMENT OF WALTER DELLINGER ON BEHALF OF THE PETITIONERS
MR. DELLINGER: Good morning, Mr. Chief Justice, and may it please the Court:
The Second Amendment was a direct response to concern over Article I, Section 8 of the Constitution, which gave the new national Congress the surprising, perhaps even the shocking, power to organize, arm, and presumably disarm the State militias.

What is at issue this morning is the scope and nature of the individual right protected by the resulting amendment and the first text to consider is the phrase protecting a right to keep and bear arms. In the debates over the Second Amendment, every person who used the phrase "bear arms" used it to refer to the use of arms in connection with militia service and when Madison introduced the amendment in the first Congress, he exactly equated the phrase "bearing arms" with, quote, "rendering military service." We know this from the inclusion in his draft of a clause exempting those with religious scruples. His clause says "The right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

And even if the language of keeping and bearing arms were ambiguous, the amendment's first clause confirms that the right is militia-related.

CHIEF JUSTICE ROBERTS: If you're right, Mr. Dellinger, it's certainly an odd way in the Second Amendment to phrase the operative provision. If it is limited to State militias, why would they say "the right of the people"? In other words, why wouldn't they say "state militias have the right to keep arms"?

MR. DELLINGER: Mr. Chief Justice, I believe that the phrase "the people" and the phrase "the militia" were really in -- in sync with each other. You will see references in the debates of, the Federalist Farmer uses the phrase "the people are the militia, the militia are the people."

CHIEF JUSTICE ROBERTS: But if that's right, doesn't that cut against you? If the militia included all the people, doesn't the preamble that you rely on not really restrict the right much at all? It includes all the people.

MR. DELLINGER: Yes, I do believe it includes all the people in the sense of Verdugo-Urquidez, all those who are part of the polity.

What -- what defines the amendment is the scope and nature of the right that the people have. It's, it is a right to participate in the common defense and you have a right invocable in court if a Federal regulation interferes with your right to train for or whatever the militia has established. So that --

JUSTICE KENNEDY: One of the concerns, Mr. Dellinger, of the framers, was not to establish a practice of amending the Constitution and its important provisions, and it seems to me that there is an interpretation of the Second Amendment differing from that of the district court and in Miller and not advanced particularly in the red brief, but that conforms the two clauses and in effect delinks them.

The first clause I submit can be read consistently with the purpose I've indicated of simply reaffirming the existence and the importance of the militia clause.

Those were very important clauses. As you've indicated, they're in Article I and Article II. And so in effect the amendment says we reaffirm the right to have a militia, we've established it, but in addition, there is a right to bear arms. Can you comment on that?

MR. DELLINGER: Yes.

JUSTICE KENNEDY: And this makes, it does -- I think you're write right in the brief to say that the preface shouldn't be extraneous. This means it's not extraneous. The Constitution reaffirms the rights, reaffirm several principles: The right of the people to peaceably assemble, the right to be secure in their homes, the Tenth Amendment reaffirms the rights, and this is simply a reaffirmation of the militia clause.

MR. DELLINGER: Justice Kennedy, I think any interpretation that delinks the two clauses as if they were dealing with related but nonetheless different subject matters has that to count against it, and what you don't see in the debates over the Second Amendment are references to, in those debates, the use of weapons for personal purposes. What you see is the clause that, that literally transposes to this: "Because a well regulated militia is necessary to the security of a free State, the right of the people to keep and bear arms shall not be" --

[Note: Not only do you see the personal use of weapons during the debates, but prior
to them as well.]

JUSTICE KENNEDY: Well the subject is "arms" in both clauses, as I've suggested is the common subject, and they're closely related.

MR. DELLINGER: I think, as this Court unanimously held in Miller, or at least noted in Miller -- I'll leave aside the debate. The court unanimously said in Miller that the Second Amendment must be interpreted in light of its obvious purpose to ensure the continuation and render possible the effectiveness of the military forces.

JUSTICE SCALIA: I don't see how there's any, any, any contradiction between reading the second clause as a -- as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State- managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons -- that was the way militias were destroyed.

The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.

MR. DELLINGER: Yes, but once you assume that the clause is designed to protect the militia, it -- surely it's the militia that decides whether personal possession is necessary. I mean, Miller -- what makes no sense is for Miller to require the arm to be militia-related if the right is not, and the key phrase is "bear arms." If people --

JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause, is related to something other than the militia?

MR. DELLINGER: No. I think --

JUSTICE KENNEDY: All right. Well, then

MR. DELLINGER: -- the second clause, the phrase "keep and bear arms," when "bear arms" is referred to -- is referred to in a military context, that is so that even if you left aside --

JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?

MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase "keep and bear arms" is a military phrase, and --

[Note: Most incorrect, to wit:

The Debates in the Federal Convention, "The power of self-defence was essential . . . Nature had given it to the smallest insect of the creation.", June 29, 1787
The Debates in the Federal Convention, "The people, who have been so lately in arms against Great Britain for their liberties, will not easily give them up", Aug. 14, 1787
Examination of the Leading Principles of the Federal Constitution, 1787, By Noah Webster, Oct. 10, 1787
"One of Four Thousand", Independent Gazetteer, "the citizens of Philadelphia appealed to the first of nature’s laws, viz. self-preservation.", Oct. 15, 1787
The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania, "That the people have a right to bear arms for the defence of themselves and their own state, or the United States", Dec. 12, 1787
The Federalist No. 28, Alexander Hamilton, "there is then no resource left but in the exertion of that original right of self-defense . . . The citizens must rush tumultuously to arms", Dec. 26, 1787
Addresses To The Citizens, "and using those arms which Providence has put into their hands, will make a solemn appeal to "the power above."", [1787]
James Madison to Tench Coxe, "Your arguments appear to me to place the subject to which they relate in its true light", Jan. 3, 1788
Nicholas Gilman to John Sullivan, "a number of the Citizens...without any other than a few side arms", April 19, 1788
Paine Wingate to John Sullivan, "who got sadly pelted by marching with those who were armed", April 23, 1788
The Debates in the Several State Conventions (Virginia), "My great objection to this government is, that it does not leave us the means of defending our rights, or of waging war against tyrants.", June 5, 1788
Virginia Ratifying Convention, "what divine Providence has given to every individual--the means of self-defence", June 14, 1788
Virginia Ratifying Convention, "...it was necessary that the great rights of human nature should be secure from the encroachments of the legislature...", June 16, 1788
The Debates in the Several State Conventions, (Virginia), "...and those privileges which are declared necessary to all free people, these rights are not encroached on by this government...", June 18, 1788
Virginia Ratifying Convention, "If the whole country be in arms", June 21, 1788
Virginia Ratifying Convention, "The people are not to be disarmed of their weapons. They are left in full possession of them.", June 25, 1788
State of VIRGINIA. IN CONVENTION, "That the people have a right to keep and bear arms", June, 25, 1788
State of Rhode-Island, and Providence-Plantations, "That the people have a right to keep and bear arms", Oct. Session, 1788
Journal of the Senate of the United States of America, “It passed in the affirmative...”, Sept. 9, 1789

JUSTICE SCALIA: Blackstone thought it was important. Blackstone thought it was important. He thought the right of self-defense was inherent, and the framers were devoted to Blackstone. Joseph Story, the first commentator on the Constitution and a member of this Court, thought it was a personal guarantee.

["This law of nature, being coeval [existing at the same time - ed.] with mankind, and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original."

"Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered [permitted] to contradict these."

"...The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression." - William Blackstone, Commentaries on the Laws of England, 1765–1769.]
["The militia is the natural defense of a free country against sudden foreign invasions, domestic insurrections, and domestic Usurpation of Power by rulers. The Right of the Citizens to Keep and Bear Arms has JUSTLY been considered, as the PALLADIUM of the LIBERTIES of The Republic; since it offers a strong moral check AGAINST the Usurpation and Arbitrary Power of rulers; and will generally...ENABLE the PEOPLE to RESIST and TRIUMPH OVER THEM." - Joseph Story, Supreme Court Justice, Commentaries on the Constitution of the United States, p. 3:746-7, 1833.]

MR. DELLINGER: When Blackstone speaks of the personal guarantee, he describes it as one of the use of weapons, a common law right. And if we're constitutionalizing the Blackstonian common law right, he speaks of a right that is subject to due restrictions and applies to, quote "such weapons, such as are allowed by law." So Blackstone builds in the kind of reasonableness of the regulation that the District of Columbia has. Now, the --

[Note: Only, according to a very respected early Constitutional scholar and U.S.
District court judge, those “ due restrictions” were removed by the new Constitution:

"The right of the people to keep and bear arms shall not be infringed, and this without any qualification as to their condition or degree, as is the case in the British government...."

"....This may be considered as the true palladium of liberty....The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Whenever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction." - St. George Tucker, United States District Court Judge, Blackstone's Commentaries, (1803).]

CHIEF JUSTICE ROBERTS: Well, that may be true, but that concedes your main point that there is an individual right and gets to the separate question of whether the regulations at issue here are reasonable.

MR. DELLINGER: I don't dispute, Mr. Chief Justice, that the Second Amendment is positive law that a litigant can invoke in court if a State were to decide after recent events that it couldn't rely upon the Federal Government in natural disasters and wanted to have a State-only militia and wanted to have everybody trained in the use of a weapon, a Federal law that interfered with that would be a law that could be challenged in court by, by an individual. I mean, I think the better --
JUSTICE GINSBURG: Mr. Dellinger --

MR. DELLINGER: Yes.

JUSTICE GINSBURG: -- short of that, just to get your position clear, short of reactivating State militias, on your reading does the Second Amendment have any effect today as a restraint on legislation?

["The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." - William Rawle, A View of the Constitution, 125-6 (2nd ed. 1829). (Appointed by President George Washington as U.S. District Attorney for Pennsylvania in 1791).]

MR. DELLINGER: It would, Justice Ginsburg, if the State had a militia and had attributes of the militia contrary to a Federal law. And if it didn't --

JUSTICE GINSBURG: But it doesn't, as far as I know.

MR. DELLINGER: As far as I know, today it doesn't. And I'm not -- and the Respondents make that, that argument that the amendment is without a use. But you don't make up a new use for an amendment whose prohibitions aren't being violated. I mean --

JUSTICE ALITO: Your argument is that its purpose was to prevent the disarming of the organized militia, isn't that correct?

MR. DELLINGER: That is correct.

JUSTICE ALITO: And if that was the purpose, then how could they -- how could the Framers of the Second Amendment have thought that it would achieve that person, because Congress has virtually plenary power over the militia under the militia clauses?

[The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Volume 5] Thursday, August 23. (1787).
"...In Convention. -- The report of the committee of eleven, made the 21st of August, being taken up, and the following clause being under consideration, to wit: --
"To make laws for organizing, arming, and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States; reserving to the states, respectively, the appointment of the officers, and authority of training the militia according to the discipline prescribed," --
Mr. SHERMAN moved to strike out the last member, "and authority of training,"
&c. He thought it unnecessary. The states will have this authority, of course, if not given up.
Mr. ELLSWORTH doubted the propriety of striking out the sentence. The reason
assigned applies as well to the other reservation, of the appointment to offices. He remarked, at the same time, that the term "discipline," was of vast extent, and might be so expounded as to include all power on the subject.
Mr. KING, by way of explanation, said, that by organizing, the committee meant, proportioning the officers and men -- by arming, specifying the kind, size, and calibre of arms -- and by disciplining, prescribing the manual exercise, evolutions, &c.
Mr. SHERMAN withdrew his motion...."]

MR. DELLINGER: That is because, I think, Justice Alito, that those who wanted to retake State authority over the militia didn't get everything they wanted. Madison actually did this somewhat reluctantly and wanted to maintain national control.

["Mr. MADISON thought the regulation of the militia naturally appertaining to the authority charged with the public defence...." - August 18. (1787), The Debates in the Several State Conventions on the Adoption of the Federal Constitution [Elliot's Debates, Vol. 5]]

JUSTICE SCALIA: They got nothing at all, not everything they wanted. They got nothing at all.
So long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could, could disband the State militias.

MR. DELLINGER: Yes, but if -- well --

JUSTICE SCALIA: So what, what was the function served by the Second Amendment as far as the militia is concerned?

[The preamble to the Bill of Rights itself:
"The Conventions of a number of the States having, at the time of adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further DECLARATORY and RESTRICTIVE clauses should be added, and as extending the ground of public confidence in the Government will best insure the beneficent ends of its institution;
"Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two-thirds of both Houses concurring, that the following articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States; all or any of which articles, when ratified by three-fourths of the said Legislatures, to be valid to all intents and purposes as part of the said Constitution, namely
...Amendment II
DECLARATORY; (Common Defense)
"A well regulated militia, being necessary to the security of a free state,"
RESTRICTIVE; (Self-Defense/Preservation, The First Law of Nature).
"the right of the people to keep and bear arms, shall not be infringed."]

MR. DELLINGER: It is by no means clear that the Federal Government could abolish the State militia.

It may be presupposed by the Article I, Section 8, clauses 15 and 16, and by the Second Amendment that the States may have a militia. That issue has been left open as to whether you could do that, and it can be called into Federal service but only in particular circumstances.
Now I think the better argument for the other side, if, if there is to be a militia relatedness aspect of the Second Amendment, as we think clear from all of its terms, then Heller's proposed use of a handgun has no connection of any kind to the preservation or efficiency of a militia and therefore the case is over.

CHIEF JUSTICE ROBERTS: Well, but your reading of the militia clause, the militia clause specifically reserves concern rights to the States by its terms. And as I understand your reading, you would be saying the Second Amendment was designed to take away or expand upon the rights that are reserved, rather than simply guaranteeing what rights were understood to be implicit in the Constitution itself.

MR. DELLINGER: I'm not sure I followed the, the question exactly, but --

CHIEF JUSTICE ROBERTS: Well, the militia clause, Article I, Section 8, says certain rights are reserved to the States with respect to the militia. And yet you're telling us now that this was a very important right that ensured that they kept arms, but it wasn't listed in the rights that were reserved in the militia clause.

MR. DELLINGER: The debate over the militia clause -- what is shocking about the militia clauses is that this is a, a new national government that for the first time has the power to create a standing army of professionals. The militia were people who came from the people themselves, put down their weapons of trade.

The States were devoted to the ides of their militia of volunteers, and of all the powers granted to the Federal Government one of the most surprising was to say that Congress shall have the power to organize, arm, and discipline the militia and to -- even though the officers could be appointed by the State, the discipline had to be according to Congress. And this was -- this caused a tremendous negative reaction to the proposed Constitution.

[Not quite: “Sec. 1. BE it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the militia of the United States shall consist of each and every free, able-bodied male citizen of the respective States, resident therein, who are or shall be of the age of eighteen years, and under the age of fifty years (except as is hereinafter excepted) who shall severally and respectively be enrolled by the captain or commanding officer of the company within whose bounds such citizen shall reside, and that within months after passing of this act: And it shall at all times hereafter be the duty of every such captain or commanding officer of a company, to enrol every such citizen as aforesaid, and also those who shall from time to time arrive at the age of eighteen years, or being of the age of eighteen years and under the fifty years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrolment by a proper non-commissioned officer of the company, by whom such notice may be proved--That every citizen so enrolled and notified, shall within month thereafter, provide himself with a good musket or firelock of a bore not smaller than seventeen balls to the pound, a sufficient bayonet and belt, a pouch with a box therein to contain not less than twenty-four cartridges suited to the bore of his mu[s]ket or firelock, each cartridge to contain a proper quantity of powder and ball, two spare flints, and a knapsack; and shall appear so armed, accountred and provided, when called out to exercise or into service as is herein directed, except that when called out on company days to exercise only, he may appear without a knapsack--That the commissioned officers shall severally be armed with a sword or hanger, and espontoon . . . . Sec. 4 . . .
Each dragoon to furnish himself, at his own expence, with a serviceable horse, at least fourteen hands high, a good saddle, bridle, housing, holsters, and a breast plate and crupper, a pair of boots and spurs, a pair of pistols, a sabre, and a cartouch box to contain twelve cartridges for pistols....” - A BILL more effectually to provide for the national Defence, [Philadelphia, 1790]]

JUSTICE KENNEDY: But the Second -- the Second Amendment doesn't repeal that. You don't take the position that Congress no longer has the power to organize, arm, and discipline the militia, do you?

MR. DELLINGER: No.

JUSTICE KENNEDY: So it was supplementing it. And my question is, the question before us, is how and to what extent did it supplement it. And in my view it supplemented it by saying there's a general right to bear arms quite without reference to the militia either way.

MR. DELLINGER: It restricted in our view the authority of the Federal Government to interfere with the arming of the militia by the States. And the word that caused the most focus was to "arm" and that is to disarm.

Now, what I think is happening is that two different rights are being put together. One was a textual right to protect the militia. I think the better argument for the -- for the other side, for Mr. Heller, is that the amendment's purpose is militia protective, but it was overinclusive in the way that several of you have suggested, and that is that, as the court below said, preserving the individual right, presumably to have guns for personal use, was the best way to ensure that the militia could serve when called.

But that right, this right of personal liberty, the Blackstonian right, is an unregulated right to whatever arm, wherever kept, however you want to store it, and for the purposes an individual decides, that is a libertarian ideal. It's not the text of the Second Amendment, which is expressly about the security of the State; it's about well-regulated militias, not unregulated individual license, as is --

["The power of the sword, say the minority of Pennsylvania, is in the hands of Congress. My friends and countrymen, it is not so, for THE POWERS OF THE SWORD ARE IN THE HANDS OF THE YEOMANRY OF AMERICA FROM SIXTEEN TO SIXTY. The militia of these free commonwealths, entitled and accustomed to their arms, when compared to any possible army must be tremendous and irresistible. Who are these militia? [A]re they not ourselves. Is it feared, then, that we shall turn our arms each against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American. . . . [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people." - Tenche Coxe, using the pseudonym "a Pennsylvanian", Feb. 20, 1788, Pennsylvania Gazette.
"Whereas civil-rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as military forces, which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tenche Coxe,'Remarks on the First Part of the Amendments to the Federal Constitution' using the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.
Mr. Coxe was a prominent Philadelphian and political economist who was named
assistant secretary of the treasury in 1790, commissioner of revenue in 1792,
and purveyor of public supplies in 1803. Whose series of newspaper articles were very much approved by both Mr. Hamilton and Mr. Madison.]

JUSTICE SOUTER: So what you are -- what you are saying is that the individual has a right to challenge a Federal law which in effect would disarm the militia and make it impossible for the militia to perform those functions that militias function. Isn't that the nub of what you're saying?

MR. DELLINGER: Yes. That is correct.

JUSTICE SOUTER: Okay.

MR. DELLINGER: And if the Court --

JUSTICE STEVENS: May ask this question, Mr. Dellinger? To what extent do you think the similar provisions in State constitutions that were adopted more or less at the same time are relevant to our inquiry?

MR. DELLINGER: I think they are highly relevant to your inquiry because now 42 States have adopted constitutional provisions.

JUSTICE STEVENS: I'm not talking about those.

MR. DELLINGER: You're talking about at the time.

JUSTICE STEVENS: I'm talking about the contemporaneous actions of the States, before or at the time of the adoption of the Second Amendment.

MR. DELLINGER: I think that the -- the State amendments are generally written in different -- in different terms. If you're going to protect the kind of right that is -- that is being spoken of here, different from the militia right, the plain language to do it would be "Congress or the States shall pass no law abridging the right of any person to possess weapons for personal use." And that's not the right that is created here.

One of the troublesome aspects of viewing this as a right of personal use is that that is the kind of fundamental liberty interest that would create a real potential for disruption. Once you unmoor it from -- or untether it from its connection to the protection of the State militia, you have the kind of right that could easily be restrictions on State and local governments and --

[Yeah, like that which the U.S. Supreme Court describes here:
"...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 ommitted 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...." - U.S. Supreme Court decision of 1856 in Dred Scott v. Sandford.]

JUSTICE KENNEDY: Well, there's no question that the English struggled with how to work this. You couldn't conceal a gun and you also couldn't carry it, but yet you had a right to have it.
Let me ask you this: Do you think the Second Amendment is more restrictive or more expansive of the right than the English Bill of Rights in 1689?

MR. DELLINGER: I think it doesn't address the same subject matter as the English Bill of Rights.
I think it's related to the use of weapons as part of the civic duty of participating in the common defense, and it's -- and it's -- it's --

JUSTICE KENNEDY: I think that would be more restrictive.

MR. DELLINGER: That -- that could well -- the answer then would be --

JUSTICE SOUTER: Well isn't it -- isn't it more restrictive in the sense that the English Bill of Rights was a guarantee against the crown, and it did not preclude Parliament from passing a statute that would regulate and perhaps limit --

MR. DELLINGER: Well --

JUSTICE SOUTER: Here there is some guarantee against what Congress can do.

[As outlined here:
"Sec. 16. And be it further enacted. . . . And in the just preservation of rights and property, it is understood and declared that no law ought ever to be made or be in force in said Territory that shall in any manner interfere with or affect private contracts or engagements bona fide and without fraud previously proved. And the people of said Territory shall be entitled to the right to keep and bear arms, to the liberty of speech and of the press, as defined in the constitution of the United States, and all other rights of person or property thereby declared and as thereby defined.
"Sec. 17. And be it further enacted, That the following propositions be, and the same are hereby, offered to the said convention of the people of Kansas, when formed, for their free acceptance or rejection, which, if accepted by the convention and ratified by the people at the election for the adoption of the constitution, shall be obligatory on the United States and upon the said State of Kansas, to wit:..." - Journal of the House of Representatives of the United States, SATURDAY, June 28, 1856.]

[And again here:
"That, for the purpose of making an enumeration of the inhabitants, authorized to vote under the provisions of this act, an apportionment and an election of members of a convention to form a State constitution for Kansas, as hereinafter provided, five competent persons shall be appointed by the President, by and with the advice and consent of the Senate, to be commissioners,a majority of whom shall constitute a quorum, for the purpose of carrying into effect the provisions of this act, each of whom, before entering upon the duties of his office, shall take and subscribe an oath or affirmation that he will support the Constitution of the United States, and faithfully and impartially exercise and discharge the duties enjoined on him by this act . . ."
"Sec. 18. And be it further enacted, That inasmuch as the Constitution of the United States and the organic act of said Territory has secured to the inhabitants thereof certain inalienable rights, of which they cannot be deprived by any legislative enactment, therefore no religious test shall ever be required as a qualification to any office or public trust; no law shall be in force or enforced in said Territory respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble and petition for the redress of grievances; the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized; nor shall the rights of the people to keep and bear arms be infringed...."
"...It was determined in the affirmative,
Yeas ... 32
Nays ... 13
- Journal of the Senate of the United States of America, TUESDAY, July 8, 1856.]

MR. DELLINGER: Parliament could regulate.

And Blackstone appears to approve of precisely the kinds of regulations here. Now --

JUSTICE STEVENS: The Bill of Rights only protected the rights of protestants.

MR. DELLINGER: This is correct.

JUSTICE STEVENS: And it was suitable to their conditions then as allowed by law, so it was -- it was a group right and much more limited.

MR. DELLINGER: I think that is -- that's correct.

JUSTICE SCALIA: And as I recall the legislation against Scottish highlanders and against -- against Roman Catholics did use the term -- forbade them to keep and bear arms, and they weren't just talking about their joining militias; they were talking about whether they could have arms.

[Note: "The English cabinet are resolved to send all the troops they can possibly collect, which they say will amount to eight or ten thousand, against you, and stand upon the defensive at home. Their situation, however, is not a little embarrassing. The Irish nation are so generally determined upon having a free trade, that the court was obliged to allow it to be inserted in the address of both houses that a free trade is their right and they must have it. To support this there are, besides the unanimous voice of the people, upwards of fifteen thousand men in volunteer companies actually in arms without the permission or control of government. To delay or refuse the granting of fee trade will endanger a general and most formidable insurrection in that kingdom; to grant it will produce commotions of no less magnitude in England, of which they have already had some fearful examples in and about Manchester. These insurrections, whenever they happen, will be exasperated by great and real distress; for the fact is that if it be refused to Ireland that country will be undone; and if it be granted the woolen and other manufactures of England will be ruined. In such a situation it is difficult to imagine a medium by which the violences will be prevented that must otherwise call for the troops at home which they have destined for us."
"In Scotland the discontent is such that a Highland regiment actually seized the castle of Edinburgh, and shut the gates against their officers. This mutiny has been quelled, but the spirit that produced it is not altered." - A. Lee to the Committee of Foreign Affairs, Nov. 6, 1779. [The Revolutionary Diplomatic Correspondence of the United States, Vol. 3]]

MR. DELLINGER: Well, the different kind of right that you're talking about, to take this to the question of -- of what the standard ought to be for applying this, even if this extended beyond a militia-based right, if it did, it sounds more like the part of an expansive public or personal -- an expansive personal liberty right, and if it -- if it is, I think you ought to consider the effect on the 42 States who have been getting along fine with State constitutional provisions that do expressly protect an individual right of -- of weapons for personal use, but in those States, they have adopted a reasonableness standard that has allowed them to sustain sensible regulation of dangerous weapons. And if you --

CHIEF JUSTICE ROBERTS: What is -- what is reasonable about a total ban on possession?

MR. DELLINGER: What is reasonable about a total ban on possession is that it's a ban only an the possession of one kind of weapon, of handguns, that's been considered especially -- especially dangerous. The

CHIEF JUSTICE ROBERTS: So if you have a law that prohibits the possession of books, it's all right if you allow the possession of newspapers?

MR. DELLINGER: No, it's not, and the difference is quite clear. If -- if you -- there is no limit to the public discourse. If there is an individual right to guns for personal use, it's to carry out a purpose, like protecting the home. You could not, for example, say that no one may have more than 50 books. But a law that said no one may possess more than 50 guns would -- would in fact be I think quite reasonable.

CHIEF JUSTICE ROBERTS: The regulation -- the regulation at issue here is not one that goes to the number of guns. It goes to the specific type. And I understood your argument to be in your brief that because rifles and shotguns are not banned to the staple extent as handguns, it's all right to ban handguns.

MR. DELLINGER: That is correct because there is no showing in this case that rifles and handguns are not fully satisfactory to carry out the purposes. And what -- and what the court below says about -- about the elimination of this --

[That is quite different from how the Supreme Court of Georgia viewed it:
"The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right. - Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251 (1846).]

JUSTICE KENNEDY: The purposes of what?

MR. DELLINGER: I'm sorry.

JUSTICE KENNEDY: You said there is no showing that rifles and handguns. I think you meant rifles and other guns.

MR. DELLINGER: Yes, I'm sorry. Rifles and handguns.

JUSTICE KENNEDY: Is necessary for the purpose of what? What is the purpose?

MR. DELLINGER: The purpose -- if the purpose -- if we are shifting and if we assume for a moment arguendo that you believe this is a right unconnected to the militia, then the purpose would be, say, defense of the home. And where the government here, where the -- where the correct standard has been applied, which is where a State or the district has carefully balanced the considerations of gun ownership and public safety, has eliminated one weapon, the court below has an absolutist standard that cannot be sustained. The court below says that once it is determined that handguns are, quote, "arms," unquote, referred to in the Second Amendment, it is not open to the District to ban them. And that doesn't promote the security of a free State.

JUSTICE GINSBURG: But wasn't there a leeway for some weapon prohibition? Let me ask you, in relation to the States that do have guarantees of the right to possess a weapon at home: Do some of those States say there are certain kinds of guns that you can't have, like machine guns?

MR. DELLINGER: Yes. And here what the opinion below would do instead -- would -- it's hard to see on the opinion below why machine guns or armor-piercing bullets or other dangerous weapons wouldn't be categorically protected --

JUSTICE BREYER: Could you go back to the --

MR. DELLINGER: -- in those States --

JUSTICE KENNEDY: If I could just have one follow-on on Justice Ginsburg real quick. Do those States -- Justice Ginsburg asked -- - that distinguish among weapons, State constitutional provisions do not do so?

MR. DELLINGER: No, it's not in the text of the State constitutional provision; it's in their --

JUSTICE GINSBURG: It's in interpretation.

MR. DELLINGER: -- reasonable application

And here, the question is how has the balance been struck? The District allows law-abiding citizens to have functioning firearms in the home. From the time it was introduced in 1976, it has been the consistent position that you're entitled to have a functioning firearm. At issue is the one type of weapon --

JUSTICE SCALIA: Mr. Dellinger, let's come back to your description of the opinion below as allowing armor-piercing bullets and machine guns. I didn't read it that way. I thought the opinion below said it had to be the kind of weapon that was common for the people --

MR. DELLINGER: That is

JUSTICE SCALIA: -- that is common for the people to have. And I don't know -- I don't know that a lot of people have machine guns or armor-piercing bullets. I think that's quite unusual. But having a pistol is not unusual.

MR. DELLINGER: The number of machine guns, I believe, is in excess of a hundred thousand that are out there now, that are --

JUSTICE SCALIA: How many people in the country?

MR. DELLINGER: Well, there are 300 million, but whether that's common or not, but the --

JUSTICE SCALIA: I don't think it's common.

MR. DELLINGER: But it's the -- the court protects weapons suitable for military use that are lineal descendants. I don't know why an improved bullet wouldn't be covered, unless you adopt the kind of reasonableness standard that we suggest, where you look to the fact that -- and I don't -- some people think machine guns are more dangerous than handguns -- they shoot a lot of people at once -- but a handgun is concealable and movable. It can be taken into schools, into buses, into government office buildings, and that is the particular danger it poses in a densely populated urban area.

[Concealed, eh?:
"The provision contained in this section, perhaps, is as well calculated to secure to the citizens the right to bear arms in defence of themselves and the state, as any that could have been adopted by the makers of the constitution. If the right be assailed, immaterial through what medium, whether by an act of the legislature or in any other form, it is equally opposed to the comprehensive import of the section. The legislature is no where expressly mentioned in the section; but the language employed is general, without containing any expression restricting its import to any particular department of government; and in the twenty eighth section of the same article of the constitution, it is expressly declared, "that every thing in that article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to the constitution, shall be void.
“It was not, however, contended by the attorney for the commonwealth, that it would be competent for the legislature, by the enactment of any law, to prevent the citizens from bearing arms either in defence of themselves or the state; but a distinction was taken between a law prohibiting the exercise of the right, and a law merely regulating the manner of exercising that right; and whilst the former was admitted to be incompatible with the constitution, it was insisted, that the latter is not so, and under that distinction, and by assigning the act in question a place in the latter description of laws, its consistency with the constitution was attempted to be maintained.
“3. That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form--it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.
“If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.
“And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise....”
“...Besides, by insisting on the previous act producing any effect on the latter, the argument implies that the previous one operates as a partial restraint on the right of the citizens to bear arms, and proceeds on the notion, that by prohibiting the exercise of the residue of right, not affected by the first act, the latter act comes in collision with the constitution. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution....” - Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822).]

CHIEF JUSTICE ROBERTS: Well, I'm not sure that it's accurate to say the opinion below allowed those. The law that the opinion, the court below, was confronted with was a total ban, so that was the only law they considered.

If the District passes a ban on machine guns or whatever, then that law -- that law would be considered by the court and perhaps would be upheld as reasonable. But the only law they had before them was a total ban.

JUSTICE SCALIA: Or a law on the carrying of concealed weapons, which would include pistols, of course.

MR. DELLINGER: Let me fight back on the notion that it's a -- it's a total ban. It's not as if every kind of weapon is useful.

CHIEF JUSTICE ROBERTS: Are you allowed to carry the weapons that are allowed? I read the "carry clause" to apply without qualification. So while you say you might be able to have a shotgun in the home, you can't carry it to get there.

MR. DELLINGER: No. You can -- you can with a proper license. The District has made it clear that there is no doubt that it interprets its laws to allow a functioning gun. And to say that something is a total ban when you own only one particular kind of weapon would apply to a machine gun if it were or came into common use and --

JUSTICE ALITO: But even if you have -- even if you have a rifle or a shotgun in your home, doesn't the code prevent you from loading it and unlocking it except when it's being used for lawful, recreational purposes within the District of Columbia? So even if you have the gun, under this code provision it doesn't seem as if you could use it for the defense of your home.

MR. DELLINGER: That is not the city's position, and we have no dispute with the other side on the point of what the right answer should be.

It is a universal or near universal rule of criminal law that there is a self-defense exception. It goes without saying. We have no argument whatsoever with the notion that you may load and have a weapon ready when you need to use it for self- defense.

[Indeed, the Right of Armed Self-Defense has long been recognized by the U.S.
Supreme Court:
Wiggins v. State Of Utah, Oct. Term, 1876.
Starr v. U.S., May 14, 1894.
Thompson v. U.S., Dec. 3, 1894.
Allen v. U.S., April 8, 1895.
Beard v. U.S., May 27, 1895.
Allison v. U.S., Dec. 16, 1895.
Smith v. U.S., March 2, 1896.
Brown v. Walker, March 23, 1896.
Stevenson v. U.S., April 13, 1896.
Wallace v. U.S., April 20, 1896.
Rowe v. U.S., Nov. 30, 1896.
Patsone v. Com. Of Pennsylvania, Jan. 19, 1914.
BROWN v. UNITED STATES, "if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence", 256 U.S. 335 (1921).
Missouri Pac. R. CO. v. David, U.S. Supreme Court, "He carried a pistol and sawed-off shot gun 'for the purpose of defending himself", Feb. 15, 1932.
Adamson v. People Of State Of California, June 23, 1947.
"It was demanded by a great and overruling necessity...... This great law of necessity-of defence of self, of home, and of country-never was designed to be abrogated by any statute, or by any constitution."- Mr.[(Formerly Major-General), Benjamin Franklin] Butler, ON THE SIDE OF THE UNITED STATES, EX PARTE MILLIGAN, U.S. Supreme Court, Dec. Term, 1866.]

I'm going to reserve the remainder of my time for rebuttal.

CHIEF JUSTICE ROBERTS: Why don't you remain, Mr. Dellinger. We'll make sure you have rebuttal.

JUSTICE KENNEDY: Because I did interrupt Justice Breyer.

JUSTICE BREYER: I just wondered if you could say in a minute. One possibility is that the amendment gives nothing more than a right to the State to raise a militia. A second possibility is that it gives an individual right to a person, but for the purpose of allowing people to have guns to form a militia. Assume the second. If you assume the second, I wanted you to respond if you -- unless you have done so fully already, to what was the Chief Justice's question of why, on the second assumption, this ban on handguns, not the other part, of the District of Columbia, a total ban, why is that a reasonable regulation viewed in terms of the purposes as I described them?

MR. DELLINGER: It's a reasonable regulation for two kinds of reasons.
First, in order -- the amendment speaks of a well-regulated militia. Perhaps it's the case that having everybody have whatever gun they want of whatever kind would advance a well- regulated militia, but perhaps not. But, in any event --

JUSTICE SCALIA: It means "well trained," doesn't it?

MR. DELLINGER: When you -- when you have one --

JUSTICE SCALIA: Doesn't "well regulated" mean "well trained"? It doesn't mean -- it doesn't mean "massively regulated." It means "well trained."

MR. DELLINGER: Well, every -- every phrase of the amendment, like "well regulated," "security of the State," is something different than a -- a libertarian right. Here you have, I think, a fully -- on this, particularly on a facial challenge, there is no showing that rifles and shotguns are not fully available for all of the purposes of defense.

There is no indication that the District militia is an entity that needs individuals to have their own handguns. You -- you -- there is a step that is -- that is missing here. The well-regulated militia is not necessarily about everyone having a gun. A militia may decide to organize -- be organized that way, in which case you would have a different notion.

But here, I think, when you come down to apply this case, if you look at about five factors, that other weapons are allowed, important regulatory interests of these particularly dangerous weapons are -- is clearly a significant regulatory, and important regulatory, interest. In two respects this is removed from the core of the amendment. Even if it is not limited to militia service, even in the court below, no one doubts that that was, as the court below said, the most salient objective.

So this is in the penumbra or the periphery, not the core. It was undoubtedly aimed principally, if not exclusively, at national legislation which displaced the laws in all of the States, rural as well as urban.

Here you've got local legislation responsive to local needs, and this is local legislation in the seat of the government where Congress, which was created in order to protect the security of the national government, and where it would be extraordinary to assume that this is the one place that you're not going to incorporate it, the one area in the United States where no government, free of restrictions of the Second Amendment, could control dangerous weapons.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Dellinger.

General Clement.

ORAL ARGUMENT OF GEN. PAUL D. CLEMENT. ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS

GENERAL CLEMENT: Mr. Chief Justice, and may it please the Court:

The Second Amendment to the Constitution, as its text indicates, guarantees an individual right that does not depend on eligibility for or service in the militia.

JUSTICE STEVENS: May I ask you a preliminary question. Do you think it has the same meaning that it would have if it omitted the introductory clause referring to militia?

GENERAL CLEMENT: I don't think so, Justice Stevens, because we don't take the position that the preamble plays no role in interpreting the amendment.

And we would point to this court's decision in Miller, for example, as an example of where the preamble can play a role in determining the scope --

JUSTICE STEVENS: So you think some weight should be given to the clause. And also, the other question I wanted to ask you is: Does the right to keep and bear arms define one or two rights?

GENERAL CLEMENT: Oh, I suppose it probably does define two rights that are closely related.

JUSTICE STEVENS: There's a right to keep arms and a right to bear arms?

GENERAL CLEMENT: I think that's the better view, and a number of State courts that have interpreted analogous provisions have distinguished between the two rights and looked at them differently.

And, obviously, the term "keep" is a word that I think is something of an embarrassment for an effort to try to imbue every term in the operative text with an exclusively military connotation because that is not one that really has an exclusive military connotation. As Justice Scalia pointed out, "keep" was precisely the word that authorities used in statutes designed specifically to disarm individuals.

JUSTICE GINSBURG: It doesn't means all. It doesn't mean -- "keep," on your reading, at least if it's consistent with Miller, keep and bear some arms, but not all arms.

GENERAL CLEMENT: Absolutely, Justice Ginsburg, and just -- I mean, to give you a clear example, we would take the position that the kind of plastic guns or guns that are specifically designed to evade metal detectors that are prohibited by Federal law are not "arms" within the meaning of the Second Amendment and are not protected at all.

And that would be the way we would say that you should analyze that provision of Federal law, as those are not even arms within the provisions of the Second Amendment.

I think to make the same argument about machine guns would be a much more difficult argument, to say the least, given that they are the standard-issue weapon for today's armed forces and the State-organized militia.

JUSTICE KENNEDY: So in your view this amendment has nothing to do with the right of people living in the wilderness to protect themselves, despite maybe an attempt by the Federal Government, which is what the Second Amendment applies to, to take away their weapons?

GENERAL CLEMENT: Well, Justice Kennedy, I wouldn't say that it has no application there. As I say, I think the term "arms," especially if Miller is going to continue to be the law, is influenced by the preamble. But the way we would look at it --

JUSTICE KENNEDY: I agree that Miller is consistent with what you've just said, but it seems to me Miller, which kind of ends abruptly as an opinion writing anyway, is just insufficient to subscribe -- to describe the interests that must have been foremost in the framers' minds when they were concerned about guns being taken away from the people who needed them for their defense.

GENERAL CLEMENT: Well, Justice Kennedy, we would analyze it this way, which is we would say that probably the thing that was foremost in the framers' minds was a concern that the militia not be disarmed such that it would be maintained as a viable option to the standing army. But especially when you remember, as Justice Alito pointed out, that the Constitution in Article I, Section 8, clauses 15 and 16, the militia clauses, as unamended, gave the Federal power -- the Federal authorities virtually plenary authority to deal with the organization and regulation of the militia.

The most obvious way that you could protect the militia

JUSTICE STEVENS: Not plenary authority.
Not plenary authority.

GENERAL CLEMENT: Except for that which is reserved in --

JUSTICE STEVENS: Who appoints the officers?

GENERAL CLEMENT: Yes -- no, absolutely.

There is something reserved in clause 16.

But let me just say, if the Second Amendment had the meaning that the District of Columbia ascribes to it, one would certainly think that James Madison, when he proposed the Second Amendment would have proposed it as an amendment to Article I, Section 8, clause 16.
He didn't. He proposed it as an amendment to Article I, Section 9, which encapsulates the individual rights to be free from bills of retainder and ex post facto clauses.

JUSTICE STEVENS: Do you think he was guided at all by the contemporaneous provisions in State constitutions?

MR. DELLINGER: I am sure he was influenced by that, although I think, honestly --

JUSTICE STEVENS: And how many of them protected an individual right? Just two, right?

GENERAL CLEMENT: I think -- I think Pennsylvania and Vermont are the ones that most obviously protected.

JUSTICE STEVENS: And the others quite clearly went in the other direction, did they not?

GENERAL CLEMENT: Well, I don't know about quite clearly. The textual indication in the State amendments that probably most obviously goes in the other direction is the phrase "keep and bear arms for the common defense." And, of course, there was a proposal during the debate over the Second Amendment to add exactly those words to the Second Amendment, and that proposal was defeated, which does --

JUSTICE STEVENS: There was also a proposal to make it clear there was an individual right, which was also rejected.

GENERAL CLEMENT: I'm sorry, Justice Stevens. Which aspect of that did you have in mind?

JUSTICE STEVENS: The Pennsylvania proposal.

GENERAL CLEMENT: Oh, but I don't think that ever made it to the floor of the House or the Senate that I'm aware of. And I think that this happened at the actual Senate floor. There was a proposal to add the words "in the common defense," and that was rejected. I mean, but --

JUSTICE KENNEDY: You think Madison was guided by the experience and the expressions of the right in English law, including the Bill of Rights of 1689?

GENERAL CLEMENT: I do, Justice Kennedy, and I think in that regard it is telling that -- I mean, there are a variety of provisions in our Bill of Rights that were borrowed from the English Bill of Rights. Two very principal ones are the right to petition the government and the right to keep and bear arms. I don't think it's an accident --

JUSTICE GINSBURG: If we're going back to the English Bill of Rights, it was always understood to be subject to the control and limitation and restriction of Parliament. And I don't think there's any doubt about that. And that's what we're talking about here, are legislative restrictions.

[Yes, that IS what is being talked about, isn't it? How is it the federal judicial and legislative branches BOTH dismiss "shall NOT be infringed"? Mr. Tucker makes it clear here:
"The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people; or of peaceable assemblies by them, for any purposes whatsoever, and in any number, whenever they may see occasion."
"...In America we may reasonably hope that the people will never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty...." - St. George Tucker, U.S. District Court Judge, Blackstone's Commentaries, (1803).]

GENERAL CLEMENT: Well, Justice Ginsburg, I think you could say the same thing for every provision of the English Bill of Rights. And obviously, when those were translated over to our system you had to make adjustment for --

JUSTICE SOUTER: But isn't there one difference? Not every provision of the English Bill of Rights had an express reference to permission by law, which is a reference to parliamentarian authority, so that there -- there -- there was a peculiar recognition of parliamentarian legislative authority on this subject.

GENERAL CLEMENT: That's exactly right, Justice Souter. And the way I counted it I only found three provisions in the English Bill of Rights that had a comparable reference to Parliament.

JUSTICE STEVENS: This provision has the additional limitation to suitable to their conditions, and a large number of people were not permitted to have arms.

GENERAL CLEMENT: Again that is also true and is also relatively unique in this amendment. And if I get to the point in the argument where I talk about why we think that something less than strict scrutiny is appropriate, I think I would point precisely to those elements of the English Bill of Rights as being relevant.

But what I was about to say is I think what is highly relevant in considering the threshold question of whether there is an individual right here at all is that the parallel provisions in the English Bill of Rights that were borrowed over included the right to petition and the right to keep and bear arms. Both of those appear with specific parallel references to the people. They are both rights that are given to the people.

And as this Court has made clear in Verdugo-Urquidez, that's a reference that appears throughout the Bill of Rights as a reference to the entire citizenry.

JUSTICE SOUTER: May I go back to another point, which is to the same point, and that is consistent with your emphasis on people, was your emphasis a moment ago on the distinction between keeping and bearing arms. The keep part sounds in your, in your mind, at least, to speak of an individual right not necessarily limited by, by the exigency of military service.

My question is if that is correct and "keep" should be read as, in effect, an independent guarantee, then what is served by the phrase "and bear"? In other words, if the people can keep them and they have them there for use in the militia as well as to hunt deer, why do we, why do we have to have a further reference in there to a right to bear as well as to keep arms? And my point is it sounds to me as though "keep and bear" forms one phrase rather than two. But I want to know what your answer is to that.

GENERAL CLEMENT: The way I would read it, Justice Souter, is that "keep" is really talking about private possession in the home. And the way that I would look at it is an order to exercise, for example, an opportunity to hunt, that you would need to bear the arms as well. And I would point you -- I think it's a useful point --

JUSTICE SOUTER: But wait a minute. You're not saying that if somebody goes hunting deer he is bearing arms, or are you?

GENERAL CLEMENT: I would say that and so would Madison and so would Jefferson, I would submit.

[Indeed: "Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they
would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the
supposition that they can ever reduce themselves to the necessity of making the
experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it." - James Madison, Federalist #46]
["We appealed to those of nature, and found them engraved on our hearts. Yet we did not avail ourselves of all the advantages of our position. We had never been permitted to exercise self-government. When forced to assume it, we were novices in its science. Its principles and forms had entered little into our former education. We established however some, although not all its important principles. The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed; that they are entitled to freedom of person, freedom of religion, freedom of property, and freedom of the press." - Thomas Jefferson, June 5, 1824 letter to Major John Cartwright. [The Writings of Thomas Jefferson,(Memorial Edition) Lipscomb and Bergh, editors.]]

They use --

JUSTICE SOUTER: Somebody going out to -- in the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?

GENERAL CLEMENT: Well, I will grant you this that bear arms in its unmodified form is most naturally understood to have a military context. But I think the burden of the argument on the other side is to make it have an exclusively military context. And as a number of the briefs have pointed out, that's not borne out by the framing sources.

In one place, although it's not bearing arms, it's bearing a gun, I think it's highly relevant that Madison and Jefferson with respect to this hunting bill that Jefferson wrote and Madison proposed, specifically used in the hunting context the phrase "bear a gun," and so I do think in that context

JUSTICE SOUTER: But it's "arms" that has the kind of the military -- the martial connotation, I would have thought.

JUSTICE SCALIA: Wasn't -- it wasn't it the case that the banning of arms on the part of the Scottish highlanders and of Catholics in England used the term forbade them to bear arms. It didn't mean they couldn't just join militias, it meant they couldn't carry arms.

GENERAL CLEMENT: And again, I think various phrases were used. I also think that some of the disarmament provisions specifically used the word "keep." And so, I think there is some independent meaning there, which is one point. And then I do think that even in the context of bearing arms, I will grant you that arms has a military connotation. And I think Miller would certainly support that. But I don't think it's an exclusively military connotation.

JUSTICE STEVENS: Not only Miller but the Massachusetts declaration, the right to keep and bear arms for the common defense is what is the normal reading of it.

GENERAL CLEMENT: Absolutely. And I grant you if this, if the Second Amendment said keep and bear arms for the common defense, this would be a different case.

JUSTICE STEVENS: The right to keep and bear -- I'm sorry. It's one right to keep and bear not two rights to keep and to bear.

GENERAL CLEMENT: Well, I mean it's -- it's my friends from the District that are emphasizing that no word in the Constitution is surplusage. So I would say in a context like this, you might want to focus both on keep and bear arms.

JUSTICE SOUTER: You want to talk about the standard and your light is on.

(Laughter.)

GENERAL CLEMENT: Okay. I would like to talk about the standard and my light is indeed on, so let me do that.

I think there are several reasons why a standard as we suggest in our brief rather than strict scrutiny is an appropriate standard to be applied in evaluating these laws. I think first and foremost, as our colloquy earlier indicated, there is the right to bear arms was a pre-existing right. The Second Amendment talks about the right to bear arms not just a right to bear arms. And that pre-existing always coexisted with reasonable regulations of firearms.

And as you pointed out, Justice Souter, to be sure when you're making the translation from the English Bill of Rights, you always have to deal with parliamentary supremacy. But it is very striking that as Justice Stevens said, the right was conditioned on the conditions, which I think meant what class you were, and also subject expressly to the laws of parliament.

JUSTICE SCALIA: The freedom of speech that was referred to in the Constitution was also "the" freedom of speech, which referred to the pre-existing freedom of speech. And there were indeed some restrictions on that such as libel that you were not allowed to do, and yet we've never held that simply because it was pre-existing and that there were some regulations upon it, that we would not use strict scrutiny. We certainly apply it to freedom of speech, don't we?

GENERAL CLEMENT: Justice Scalia, let me make two related points. One, even in the First Amendment context, this Court has recognized -- and I point you to the Court's opinion in Robertson against Baldwin, which makes its point as to both the First and the Second Amendment. This Court has recognized that there are certain pre-existing exceptions that are so well established that you don't really even view them as Second Amendment or First Amendment infringement.

[Such as the following for instance:
A CHARGE to the GRAND JURIES, "Thus the will of individuals is still left free; the abuse only of that free will is the subject of legal punishment", 1799]

JUSTICE SCALIA: Like libel.

GENERAL CLEMENT: Like libel, and I would say like laws barring felons from possessing handguns.

[NEGATIVE, To Wit:
The REAL ORIGINAL INTENT behind the Second Amendment:
The Shay's Insurrection, "These the Legislature could not infringe, without bringing upon themselves the detestation of mankind, and the frowns of Heaven", Jan. 12, 1787
Commonwealth of Massachusetts, "and shall obtain an order for the re-delivery of such arms", Feb. 16, 1787
Journals of the Continental Congress, "...impolitic and not to be reconciled with the genius of free Govts...", Feb. 19. 1787
Letters of Delegates to Congress, "...An Act to disarm and Disfranchise for three years...", Feb. 27th, 1787
Letters of Delegates to Congress, "...this act has created more universal disgust than any other of Government...", March 6, 1787
Journals of the Continental Congress, "That a large body of armed insurgents, did make their appearance...", March 13, 1787
James Madison to Thomas Jefferson, "a great proportion of the offenders chuse rather to risk the consequences of their treason, than submit to the conditions annexed to the amnesty", March 19 1787
A Proclamation, "and of being again renewed to the arms of their country, and once more enjoying the rights of free citizens of the Commonwealth", June 15, 1787
The Debates in the Federal Convention, "...let the citizens of Massachusetts be disarmed. . . . It would be regarded as a system of despotism.", Aug. 23, 1787
James Madison to Thomas Jefferson, "A constitutional negative on the laws of the States seems equally necessary to secure individuals agst. encroachments on their rights", Oct. 24, 1787
"The people cannot be all, & always, well informed. The part which is wrong will be discontented in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions it is a lethargy, the forerunner of death to the public liberty. We have had 13. states independent 11. years. There has been one rebellion. That comes to one rebellion in a century & a half for each state. What country before ever existed a century & half without a rebellion? & what country can
preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon & pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots & tyrants. It is it's natural manure. Our Convention
has been too much impressed by the insurrection of Massachusetts: and in the spur of the moment they are setting up a kite to keep the hen-yard in order. I hope in God this article will be rectified before the new constitution is accepted." - Thomas Jefferson, Nov. 13, 1787 letter to William S. Smith.
That's RIGHT people, it was intended to SECURE the God-given, Natural, Inherent and Inalienable Right of those that HAD transgressed the law.]

JUSTICE KENNEDY: Or would you say protecting yourself against intruders in the home?

GENERAL CLEMENT: Well, that gets to the self-defense component and I don't know that I ever got a chance to fully answer your question on that Justice Kennedy, which is we would say notwithstanding the fact that the preamble makes it clear that the preeminent motive was related to ensuring that the militia remained a viable option vis-a-vis the standing Army, the operative text is not so limited. And I think in that regard it's worth emphasizing that the Framers knew exactly how to condition a right on militia service, because they did it with respect to the grand jury clause, and they didn't do it with respect --

JUSTICE ALITO: -- at least in part to protect the right to self-defense in the home, how could the District code provision survive under any standard of review where they totally ban the possession of the type of weapon that's most commonly used for self-defense and even as to long guns and shotguns they require at least what the code says without adding a supposed loss that might be produced in a subsequent case that even as the long guns and shotguns they have to be unloaded and disassembled or locked at all times, even presumably if someone is breaking into the home?

GENERAL CLEMENT: Well, Justice Alito, let me answer the question in two parts if I can, because I think the analysis of the trigger lock provision may be well different than the analysis of the other provisions. With respect to the trigger lock provision we think that there is a substantial argument that once this Court clarifies what the constitutional standard is, that there ought to be an opportunity for the District of Columbia to urge its construction, which would allow for a relatively robust self-defense exception to the trigger lock provision, and this Court could very well apply Ashwan to prevent -- principles allowing for that kind of --

JUSTICE SCALIA: I don't understand that.

What would that be -- that you can, if you have time, when you hear somebody crawling in your -- your bedroom window, you can run to your gun, unlock it, load it and then fire? Is that going to be the etch exception?

GENERAL CLEMENT: If that's going to be the exception, it could clearly be inadequate, and I think that -- I mean the District of Columbia can speak to this, but it seems to me that if, for example, the police were executing a warrant at evening and had cause for doing it at evening and saw somebody with a loaded gun on their night stand with children present without a trigger lock, it seems to me that that would be a good test case to decide whether or not their construction would provide for an exception to the trigger lock provision in that case.

JUSTICE GINSBURG: Can I --

GENERAL CLEMENT: If it did, I think then the statute might well be constitutional. If it didn't in my view, it probably wouldn't be.

JUSTICE GINSBURG: There is a lot of talk about standards and stop words like strict scrutiny.

Does it make a practical difference whether we take your standard or the strict scrutiny that was in the D.C. Circuit's opinion? And specifically there is a whole panoply of Federal laws restricting gun possession.

[Let's take a look at another "Circuit" opinion, shall we? To Wit:
"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....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...” - CHARGE TO THE GRAND JURY BY THE COURT, United States Circuit Court, DISTRICT OF MISSOURI, SPECIAL
JULY TERM, PRESENT: HON. JOHN CATRON, An Associate Justice of Supreme Court of United States. 1861. JULY 10, 1861.]

Would any of them be jeopardized under your standard? And the same question with the district scrutiny, does it make any difference?

GENERAL CLEMENT: In our view it makes a world of difference, Justice Ginsburg, because we certainly take the position as we have since consistently since 2001 that the Federal firearm statutes can be defended as constitutional and that would be consistent with this kind of intermediate scrutiny standard that we propose. If you apply strict scrutiny I think that the result would be quite different, unfortunately

CHIEF JUSTICE ROBERTS: Well, these various phrases under the different standards that are proposed, "compelling interest," "significant interest," "narrowly tailored," none of them appear in the Constitution; and I wonder why in this case we have to articulate an all-encompassing standard. Isn't it enough to determine the scope of the existing right that the amendment refers to, look at the various regulations that were available at the time, including you can't take the gun to the marketplace and all that, and determine how these -- how this restriction and the scope of this right looks in relation to those? I'm not sure why we have to articulate some very intricate standard. I mean, these standards that apply in the First Amendment just kind of developed over the years as sort of baggage that the First Amendment picked up, but I don't know why when we are starting afresh, we would try to articulate a whole standard that would apply in every case?

GENERAL CLEMENT: Well, Mr. Chief Justice, let me say a couple of things about that, which is to say that if this Court were to decide this case and make conclusively clear that it really was focused very narrowly on this case and in some respects applying a sui generis test, we think that would be an improvement over the court of appeals opinion, which is subject to more than one reading, but as Justice Ginsburg's question just said, it's certainly susceptible to a reading that it embodies district scrutiny.

JUSTICE GINSBURG: Well, it is. It's just like the First Amendment -- Second Amendment has exceptions, but strict scrutiny applies. It says strict scrutiny applies here too.

GENERAL CLEMENT: I --

JUSTICE SCALIA: But that opinion also, it didn't use the militia prologue to say it's only the kind of weapons that would be useful in militia, and that are commonly -- commonly held today. Is there any Federal exclusion of weapons that applies to weapons that are commonly held today? I don't know what you're worried about. Machine guns, what else? Armored bullets, what else?

GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the Government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is.

CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns. It involved an absolute ban. It involved an absolute carry prohibition. Why would you think the opinion striking down an absolute ban would also apply to a narrow one -- narrower one directed solely to machine guns?

GENERAL CLEMENT: I think, Mr. Chief Justice, why one might worry about that is one might read the language of page 53a of the opinion of -- in the petition appendix that says once it is an arm, then it is open to the District to ban it. Now it seems to me that the District is not districtly a complete ban because it exempts pre-1976 handguns. The Federal ban on machine guns is not strictly speaking a ban, because it exempts pre -- pre-law machine guns, and there is something like 160,000 of those.

JUSTICE SCALIA: But that passage doesn't mean once it's an arm, in the dictionary definition of arms. Once it's an arm in the specialized accepts that the opinion referred to it, which is -- which is the type of a weapon that was used in militia, and it is -- it is nowadays commonly held.

GENERAL CLEMENT: Well --

JUSTICE SCALIA: If you read it that way, I don't see why you have a problem.

GENERAL CLEMENT: Well, I -- I hope that you read it that way, but I would also say that I think that whatever the definition that the lower court opinion employed, I do think it's going to be difficult over time to sustain the notion -- I mean, the Court of Appeals also talked about lineal descendants. And it does seem to me that just as this Court would apply the Fourth Amendment to something like heat imagery, I don't see why this Court wouldn't allow the Second Amendment to have the same kind of scope, and then I do think that reasonably machine guns come within the term arms.

Now if this Court wants to say that they don't -- I mean, I mean -- we'd obviously welcome that in our -- in our obligation to defend the constitutionality of acts of Congress. The one other thing I would say is that this is an opinion that is susceptible of different readings. It's interesting that Respondents' amici have different characterizations of it. The Goldwater Institute calls it strict scrutiny; the State of Texas calls it reasonable -- reasonableness review.

CHIEF JUSTICE ROBERTS: Thank you, General.

GENERAL CLEMENT: Thank you.

CHIEF JUSTICE ROBERTS: Mr. Gura.

ORAL ARGUMENT OF ALAN GURA, ON BEHALF OF THE RESPONDENTS

MR. GURA: Thank you, Mr. Chief Justice, and may it please the Court:

All 50 states allow law-abiding citizens to defend themselves and their families in their homes with ordinary functional firearms including handguns. Now I'd like to respond to one point that was raised related by the General --

[Defend? Oh yes, now I remember:
"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, Federalist #28.
"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).
The Chief Justice had the following to remark concerning "Defense":
"Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers." - Chief Justice John Marshall, U.S. Supreme Court. [As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]]

JUSTICE SCALIA: Talk a little slower; I'm not following you.

MR. GURA: Okay. I'd like to respond -- certainly, Justice Scalia. I'd like to respond to the point about the -- the District of Columbia's position over the years with respect to the functional firearms ban. The Petitioners have had two opportunities to urge courts to adopt this so-called self-defense exception construing the exception. The first option came in 1978 in McIntosh versus Washington where, the petitioners urged the Court of Appeals of the District of Columbia to uphold the law because it was irrational in their view to prohibit self-defense in the home with firearms.

They deemed it to be too dangerous, and this was a legitimate policy choice of the City Council and they actually prevailed in that view.

The second opportunity that the Petitioners had to urge this sort of self-defense construction was actually in this case in the district court. We had a motion for summary judgment and we made certain factual allegations in this motion and on page 70a of the joint appendix we see portions of our statement of undisputed material facts. Fact number 29, which was conceded by the District of Columbia, reads: The defendants prohibit the possession of lawfully owned firearms for self-defense within the home, even in instances when self-defense would be lawful by other means under District of Columbia law. The citation for that is functional firearms ban and that point was conceded.

[It didn't used to be a problem in D.C., other than "on Christmas and New Year's Day and Eve":
A PROCLAMATION.
Mayor's Office, Washington, Dec. 23, 1828.
WHEREAS it has been too much the habit of idle and inconsiderate persons, on Christmas and New Year's Day and Eve to indulge in firing off guns, pistols, squibs, and crackers, and burning of gun-powder in divers other ways, to the great annoyance of the peaceable inhabitants of this city, and to the manifest danger of their persons and property--all which practices, where they are not contrary to the express ordinances of the corporation, amount to "disorderly conduct," and as such are punishable by law:
Now, therefore, with a view to prevent such disorderly practices, I, Joseph
Gales, jr. Mayor of Washington, do enjoin upon all Police Constables, Ward Commissioners, and others, whose duty it is to preserve peace and good order, to be diligent in the execution of their several duties, and to apprehend and bring to justice all persons so offending against the laws.
Given under my hand, at the City of Washington, this 23d day of December, in the year of our Lord one thousand eight hundred and twenty-eight.
Dec 24--..........JO. GALES, jr. Mayor.]

Certainly the idea that people can guess as to when it is that they might render the firearm operational is -- is not a one that the Court should accept, because a person who hears a noise, a person who perhaps is living in a neighborhood where there has been a spate of violent crimes, has no idea of when the District of Columbia would permit her to render the firearm operational, and in fact there is a prosecution history not under this specific provision, but certainly other under gun prohibition -- uh -- laws that we are challenging here today to prosecute people for the possession or for the carrying of a prohibited firearm even when the police ruled the shooting has been lawful self-defense.

JUSTICE BREYER: You're saying that this is unreasonable, and that really is my question because I'd like you to assume two things with me, which you probably don't agree with, and I may not agree with them either.

(Laughter.)

JUSTICE BREYER: But I just want to you assume them for the purpose of the question. All right.

Assume that the -- there is an individual right, but the purpose of that right is to maintain a citizen army, call it a militia, that that's the basic purpose. So it informs what's reasonable and what isn't reasonable.

Assume -- and this is favorable to you but not as favorable as you'd like -- assume that we are going to decide whether something is proportionate or apply an intermediate standard in light of the purpose. All right? Now focus on the handgun ban. As I read these 80 briefs -- and they were very good, I mean really good and informative on both sides and I'm trying to boil down the statistics where there is disagreement -- and roughly what I get and don't quarrel with this too much, it's very rough, that 80,000 to 100,000 people every year in the United States are either killed or wounded in gun-related homicides or crimes or accidents or suicides, but suicide is more questionable. That's why I say 80,000 to 100,000. In the District, I guess the number is somewhere around 200 to 300 dead and maybe if it's similar 1500 to 2,000 people wounded. All right.

Now, in light of that, why isn't a ban on handguns, while allowing the use of rifles and muskets, a reasonable or a proportionate response on behalf of the District of Columbia?

MR. GURA: Because, Your Honor, for the same reason it was offered by numerous military officers at the highest levels of the U.S. military in all branches of service, writing in two briefs they agree with us that the handgun ban serves to weaken America's military preparedness because when people have handguns -- handguns are military arms, they are not just civilian arms -- they are better prepared and able to use them and certainly when they join the military forces, they are issued handguns. And so if we assume that the sort of military purpose to the Second Amendment is an individual right, then the handgun ban, as noted by our military amici, would impede that.

JUSTICE BREYER: Well I didn't read -- I read the two military briefs as focusing on the nature of the right which was quite -- pretty good argument there that the nature of the right is to maintain a citizen Army, and to maintain that potential today, the closest we come is to say that there is a right for people to understand weapons, to know how to use them, to practice with them. And they can do that, you see, with their rifles. They can go to gun ranges, I guess, in neighboring States. But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?

JUSTICE SCALIA: You want to say yes.

JUSTICE BREYER: Now, why?

JUSTICE SCALIA: That's your answer.

JUSTICE BREYER: Well, you want to say yes, that's correct, but I want to hear what the reasoning is because there is a big crime problem. I'm simply getting you to focus on that.

MR. GURA: The answer is yes, as Justice Scalia noted, and it's unreasonable and it actually fails any standard of review that might be offered under such a the construction of individual rights because proficiency with handguns, as recognized as a matter of judicial notice by the First Circuit in Costas back in 1942 -- that was a handgun case where the First Circuit examined the restriction on the carrying of the 30-caliber revolver. And the First Circuit accepted, as a matter of judicial notice, that proficiency in use and familiarity with the handgun at issue would be one that would further a militia purpose. And so --

JUSTICE STEVENS: Let me ask this question:

In answering yes, do you attach any significance to the reference to the militia in the Second Amendment?

MR. GURA: Yes, I do, Your Honor.

JUSTICE STEVENS: You think that is -- to understand the amendment, you must pay some attention to the militia requirement?

MR. GURA: Yes, Your Honor, we must --

CHIEF JUSTICE ROBERTS: So a conscientious objector who likes to hunt deer for food, you would say has no rights under the Second Amendment. He is not going to be part of the militia, he is not going to be part of the common defense, but he wants to bear arms.

You would say that he doesn't have any rights under this amendment?

MR. GURA: No, Your Honor. I think that the militia clause informs the purpose, informs a purpose.

It gives us some guide post as to how we look at the Second Amendment, but it's not the exclusive purpose of the Second Amendment. Certainly the Founders cared very much about --

JUSTICE GINSBURG: Is it a limitation -- is it any limitation on the legislature? Is the first clause any limitation on the legislature?

MR. GURA: It is a limitation to one extent, Your Honor, the extent recognized in Miller where the Miller Court asked whether or not a particular type of arm that's at issue is one that people may individually possess. It looked to the militia clause and therefore adopted a militia purpose as one of the two prongs of Miller. And so certainly if there were -- if the Court were to continue Miller -- and Miller was the only guidance that the lower court had certainly as to what arms are protected or unprotected by the Second Amendment. And yet --

JUSTICE STEVENS: If it limits the kind of arms to be appropriate to a militia, why does it not also limit the kind of people who may have arms?

MR. GURA: It does not eliminate the kind of people, Your Honor, because the Second Amendment is the right of the people. And it would certainly be an odd right that we would have against the Congress, if Congress could then redefine people out of that right.
Congress could tomorrow declare that nobody is in a militia, and then nobody would have the right against the government.

JUSTICE GINSBURG: If you were thinking of "the people," what those words meant when the Second Amendment was adopted, it was males between the ages of what -- 17 and 45? People who were over 45 had no -- they didn't serve in the militia.

MR. GURA: Well, certainly there were many people who were not eligible for militia duty or not subject to militia service who nevertheless were expected to, and oftentimes did in fact, have guns.

JUSTICE SCALIA: Which shows that maybe you're being unrealistic in thinking that the second clause is not broader than the first. It's not at all uncommon for a legislative provision or a constitutional provision to go further than is necessary for the principal purpose involved. The principal purpose here is the militia, but -- but the second clause goes beyond the militia and says the right of the people to keep and bear arms. Now, you may say the kind of arms is colored by the militia. But it speaks of the right of the people. So why not acknowledge that it's -- it's broader than the first clause?

MR. GURA: Well, we do acknowledge that, Your Honor.

JUSTICE SOUTER: Then why have the first clause? I mean what's it doing -- I mean what help is it going to be?

MR. GURA: Well, it was a way in which to remind us -- the Framers certainly felt that a militia was very important to the preservation of liberty. The Framers had just fought a revolutionary war that relied heavily on militia forces, and so they wanted to honor that and remind us as to the purpose, one purpose, not the exclusive purpose, but a purpose of preserving the right --

JUSTICE KENNEDY: Could it also be simply to reaffirm that the provisions in the main text of the Constitution remain intact?

MR. GURA: That's correct, Your Honor. In fact, that view was taken by William Raleigh in his 1828 treatise, view of the Constitution. Raleigh was, of course, a ratifier of the Second Amendment. He sat in the Pennsylvania Assembly in 1790. And look at his description of the Second Amendment. He bifurcates.

First he discusses the militia clause; then he lavishes some qualified praise on it; then

JUSTICE KENNEDY: But you were about to tell us before ae course of questioning began about the other purposes that the amendment served. I'm -- I want to know whether or not, in your view, the operative clause of the amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?

MR. GURA: Oh, yes. Yes, Justice Kennedy.

The right of the people to keep and bear arms was derived from Blackstone. It was derived from the common-law English right which the Founders wanted to expand. In fact, the chapter in which Blackstone discusses in this treatise, his fifth auxiliary right to arms is entitled --

[NEGATIVE. It was a personal Right that existed long before Blackstone entered the picture:
Biblical Quotes on Arms and Defense
"There exists a law, not written down anywhere, but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right. When weapons reduce them to silence, the laws no longer expect one to wait their pronouncements. For people who decide to wait for these will have to wait for justice, too--and meanwhile they must suffer injustice first. Indeed, even the wisdom of a law itself, by sort of tacit implication, permits self-defense, because it is not actually forbidden to kill; what it does, instead, is to forbid the bearing of a weapon with the intention to kill. When, therefore, inquiry passes on the mere question of the weapon and starts to consider the motive, a man who is used arms in self-defense is not regard is having carried with a homicidal aim." - Marcus Tulius
Cicero, (106-53 BC). In a prepared speech for the trial of T. Annius Milo in 52 B.C.
Theory of the Feudal Laws among the Franks in the Relation They Bear to the Establishment of the Monarchy.
18. Of the double Service.
It was a fundamental principle of the monarchy that whosoever was subject to the military power of another person was subject also to his civil jurisdiction. Thus the Capitulary of Louis the Debonnaire, [117] in the year 815, makes the military power of the count and his civil jurisdiction over the freemen keep always an equal pace. Thus the placita [118] of the count who carried the freemen against the enemy were called the placita of the freemen; [119] whence undoubtedly came this maxim, that the questions relating to liberty could be decided only in the count's placita, and not in those of his officers. Thus the count never led the vassals [120] belonging to the bishops, or to the abbots, against the enemy, because they were not subject to his civil jurisdiction. Thus he never commanded the rear-vassals belonging to the king's vassals. Thus the glossary of the English laws informs us [121] that those to whom the Saxons gave the name of Coples [122] were by the Normans called counts, or companions, because they shared the justiciary fines with the king. Thus we see that at all times the duty of a vassal towards his lord [123] was to bear arms [124] and to try his peers in his court.
[117] Art. 1, 2, and the council in verno palatio of the year 845, art. 8, edition of Baluzius, tome ii, p. 17.
[118] Or assizes.
[119] "Capitularies," book iv of the "Collection of Angezise," art. 57; and the fifth capitulary of Louis the Debonnaire, in the year 819, art. 14, edition of Baluzius, tome i, p. 615.
[120] See the 8th note of the preceding chapter.
[121] It is to be found in the "Collection of William Larabard," De Priscis Anglorum legibus.
[122] In the word Satrapia.
[123] This is well explained by the assizes of Jerusalem, chaps. 221, 222.
[124] The advowees of the church (advocati) were equally at the head of their placita and of their militia. - Baron de Montesquieu, The Spirit of the Laws, Book XXX. (1748).
1. Let every holder of a knight's fee have a hauberk, a helmet, a shield and a lance. And let every knight have as many hauberks, helmets, shields and lances, as he has knight's fees in his demise.
2. Also, let every free layman, who holds chattals or rent to the value of 16 marks, have hauberk, a helmet, a shield, and a lance. Also, let every free layman who holds chattals or rent worth 10 marks have an aubergel and a headpiece of iron and a lance....
4. Moreover, let each and every one of them swear before the feast of St. Hilary he will possess these arms and will bear allegiance to the lord king, Henry, namely the son of empress Maud, and that he will bear these arms in his service according to his order and in allegiance to the lord king and his realm..." - Assize of Arms, 1181.
"…a man's house is his Castle, and a person's own house is his ultimate refuge; for where shall a man be safe, if it be not in his house. And in this sense it truly said, and the laws permit the taking up of arms against armed persons." — Sir Edward Coke, "Institutes of the Laws Of England", 1628.]

JUSTICE BREYER: That brings me back to the question because Blackstone describes it as a right to keep and bear arms "under law." And since he uses the words "under law," he clearly foresees reasonable regulation of that right. And so, does the case not hinge on, even given all your views, on whether it is or is not a reasonable or slightly tougher standard thing to do to ban the handgun, while leaving you free to use other weapons? I mean, I notice that the militia statute, the first one, spoke of people coming to report, in 1790 or whenever, with their rifles, with their muskets, but only the officers were to bring pistols. So that to me suggests they didn't see pistols as that crucial even then, let alone now.

MR. GURA: Well, certainly they saw --

JUSTICE BREYER: What's your response to the question?

MR. GURA: Well my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.

JUSTICE KENNEDY: That are not appropriate to --

MR. GURA: That are not appropriate to civilian use.

JUSTICE GINSBURG: For example?

MR. GURA: For example, I think machine guns: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.

The fact is that this Court's Miller test was the only guidance that we had below, and I think it was applied faithfully. Once a weapon is, first of all, an "arm" under the dictionary definition -- and Webster has a very useful one -- then you look to see whether an arm is meant to be protected under the Second Amendment.

And we apply the two-pronged Miller test, and usually one would imagine if an arm fails the Miller test because it's not appropriate for common civilian applications --

JUSTICE GINSBURG: But why wouldn't the machine gun qualify? General Clement told us that that is standard issue in the military.

MR. GURA: But it's not an arm of the type that people might be expected to possess commonly in ordinary use. That's the other aspect of Miller.

Miller spoke about the militia as encompassing the notion that people would bring with them arms of the kind in common use supplied by themselves. And --

CHIEF JUSTICE ROBERTS: Is there any parallel --

JUSTICE GINSBURG: At this time -- I would just like to follow up on what you said. Because if you were right that it was at that time, yes; but that is not what Miller says. It says that the gun in question there was not one that at this time -- this time, the time of the Miller decision -- has a reasonable relationship to the preservation or efficiency of a well-regulated militia. So it's talking about this time.

MR. GURA: That's correct. The time frame that the Court must address is always the present. The Framers wished to preserve the right to keep and bear arms. They wished to preserve the ability of people to act as militia, and so there was certainly no plan for, say, a technical obsolescence.

However, the fact is that Miller spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at the time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of --

CHIEF JUSTICE ROBERTS: Is there any parallel at the time that the amendment was adopted to the machine gun? In other words, I understand your point to be that although that's useful in modern military service, it's not something civilians possessed.

Was there anything like that at the time of the adoption, or were the civilian arms exactly the same as the ones you'd use in the military?

MR. GURA: At the time that -- even at the time Miller was decided, the civilian arms were pretty much the sort that were used in the military. However, it's hard to imagine how a machine gun could be a "lineal descendent," to use the D.C. circuit's wording, of anything that existed back in 1791, if you want to look to the framing era.

JUSTICE KENNEDY: It seems to me that Miller, as we are discussing it now, and the whole idea that the militia clause has a major effect in interpreting the operative clause, is both overinclusive and underinclusive.

I would have to agree with Justice Ginsburg that a machine gun is probably more related to the militia now than a pistol is. But that seems to me to be allowing the militia clause to make no sense out of the operative clause in present-day circumstances.

MR. GURA: Your Honor, even within the "militia" understanding, the understanding of the "militia" was always that people would bring whatever they had with them in civilian life. So a machine gun, even though it may be a wonderful --

JUSTICE KENNEDY: My point is: Why is that of any real relevance to the situation that faces the homeowner today?

MR. GURA: It's only of relevance if the Court wishes to continue reading the militia clause as informing the type of weapon which is protected.

JUSTICE KENNEDY: Well, you are being faithful to Miller. I suggest that Miller may be deficient.

MR. GURA: I agree with Your Honor, and certainly in our brief we suggest that the militia emphasis of miller is not useful as a limiting principle for the type of arms that may be -- that may be permitted. Because, on the one hand, there is a great deal of weaponry that might be wonderful for military duty but is not appropriate for common civilian use, which would not be protected even under the Miller test's first prong.

And, on the other hand, everything that civilians today might wish to have in ordinary common use: Handguns, rifles, or shotguns, are militarily useful weapons.

So we de-emphasize the military aspects of Miller as being ultimately not very useful guidance for courts. And the better guidance would be to emphasize the common-sense rule that I think judges would have really no trouble applying. And we do this all the time in constitutional law: To simply make a decision as to whether or not whichever arm comes up at issue is an arm of the kind that you could really reasonably expect civilians to have.

JUSTICE BREYER: Why -- you know, when say "keep" and "bear," I mean you are -- I think you are on to something here. Because you say let's use our common sense and see what would be the equivalent today. Fine.

If we know that at the time, in 1789, Massachusetts had a law that said you cannot keep loaded firearms in the house, right, and you have to keep all of the bullets and everything and all of the powder upstairs, why did they have that law? To stop fires because it's dangerous? They didn't have fire departments. Now we do, or they weren't as good.

We now have police departments, and the crime wave might be said to be similar to what were fires then. And, therefore, applying the similar kind of thing, you say: Fine, just as you could keep pistols loaded but not -- not loaded. You had to keep powder upstairs because of the risk of fire. So today, roughly, you can say no handguns in the city because of the risk of crime.

Things change. But we give in both instances, then and now, leeway to the city and States to work out what's reasonable in light of their problems. Would that be a way of approaching it?
MR. GURA: The legislature has a great deal of leeway in regulating firearms. There is no dispute about that. However, I wouldn't draw a complete analogy between the Boston fire ordinances that Your Honor notes and the functional-firearms ban.

First, even the Boston fire ordinances did not include handguns actually. At the time the word "firearm" was not understood to include pistols.

Generally, the gauges inventory or weapons seized from the Americans in Boston included some 1800, or so, firearms and then 634 pistols. Nowhere in the Boston code do we see a prohibition on keeping loaded pistols in the home and certainly the idea that, that self-defense is a harm is one that is --

JUSTICE BREYER: Not self-defense being the harm. And I agree with you that this, the firearm analogy, floats up there but it isn't going to decide this case, the Massachusetts statute. I agree with you about that. What you've suddenly given me the idea of doing, which I'm testing, is to focus not just on what the kind of weapon is, don't just look to see whether it's a cannon or a machine gun, but look to see what the purpose of this regulation is. And does it make sense in terms of having the possibility of people trained in firearms? Let's look at those military briefs. Let's say that the generals have it right, there is some kind of right to keep trained in the use of firearms subject to regulation. We have regulation worried about crime, back to my first question.

MR. GURA: Well back to Your Honor's first question, we don't agree that the military purpose is the exclusive purpose of the Second Amendment. And we also don't agree that it could be a reasonable regulation or under any standard of review to prohibit people from having functional firearms in their own home for purposes of self defense.

JUSTICE SCALIA: You don't even agree that Massachusetts was subject to the Second Amendment.

MR. GURA: Well, originally it was not. But what we've seen with the Fourteenth Amendment --

JUSTICE SCALIA: The time we're talking about, the firearms in the home ordinance, when was that?

MR. GURA: 1783 I believe was the statute.

JUSTICE STEVENS: How do you explain the fact that you include self-defense, but only two States, Pennsylvania and Vermont, did refer to self-defense as a permissible justification and all of the others referred to common defense or defense of the State, and in the Articles of Confederation and the Constitution itself there is no reference to self-defense?

MR. GURA: Your Honor, the State courts interpreting those provisions that you reference had a different interpretation. For example, in 1895 Massachusetts --

JUSTICE STEVENS: 1895. I'm talking about contemporaneous with the adoption of the Second Amendment.

MR. GURA: Well, at the time we haven't seen State court decisions from exactly that era.

JUSTICE STEVENS: The text of the State constitutional provisions, two of them refer to self-defense. The rest refer only to common defense; is that not correct.

MR. GURA: On their literal text, yes. But judges did not interpret them that way, for example in North Carolina.

JUSTICE STEVENS: I understand that judicial interpretation sometimes is controlling and sometimes is not but the text itself does draw distinction just as the Second Amendment does. It doesn't mention self defense.

MR. GURA: While it might not mention self-defense, it was clear that the demands that the States made at the ratifying conventions were for an individual right, and Madison was interested in --

JUSTICE STEVENS: Well, if you look at the individual rights I suppose you start back in 1689 of the declaration of rights in England in the seventh provision that they talked about said that the subjects which are protestants may have arms for their defense suitable to their conditions and as allowed by law. Now do you think the term suitable to their conditions limited the number of people who had access to arms for self defense.

MR. GURA: It was in England but that was criticized by the Framers St. George Tucker's addition of Blackstone.

JUSTICE STEVENS: So you think that the Second Amendment is a departure from the provision of the declaration of rights in England.

MR. GURA: It's quite clearly an expansion upon it.

JUSTICE STEVENS: So that's not really your -- you would not confine the right the way the English did then.

MR. GURA: I think the common law of England is a guide and it's always a useful guide because that's where the -- where we -- where we look to, to interpret --

JUSTICE SCALIA: It's useful for such purposes as what keep and bear arms means and things of that sort.

MR. GURA: It certainly is, Your Honor. And it's also useful to see how --

JUSTICE SCALIA: They certainly didn't want to preserve the kind of militia that America had, which was a militia separate from the State, separate from the government, which enabled a revolt against the British.

MR. GURA: That's correct, Your Honor.

JUSTICE SOUTER: Is there any -- is there any record evidence that the anti-Federalists objections to the Constitution that ultimately resulted in the Second Amendment were premised on any failure to recognize an individual right of self-defense or hunting or whatnot as distinct from being premised on concern about the power of the national government and the militia clauses in Article 1?

MR. GURA: Yes, Justice Souter. If we look to, for example, the -- the demands of the Pennsylvania minority, the anti-Federalists there were extremely influential. They couched their demands in unmistakably self-defense terms. In fact, they added --

JUSTICE SOUTER: But they didn't -- they didn't limit it to self-defense. I mean, what provoked it, as I understand it, was concern about the militia clauses and here I mean you're certainly correct. I agree with you, Pennsylvania went beyond that. It was -- it was one of three states, as I understand, that did go beyond it. But the provocation for getting into the subject, as I understand it, was in each instance including Pennsylvania, concern over the national government's power over militias under Article 1.

MR. GURA: Justice Souter, we wouldn't see the history that way. Certainly there is agreement that the militia clauses in the Constitution were controversial. And there were separate amendments that were proposed and always rejected that would have addressed that explicitly. In fact, if we look at Virginia's proposals, it's agreed by the Petitioners that Virginia was the model for the Bill of Rights and specifically, of course, for the Second Amendment.

We saw one set of proposed amendments from Virginia entitled Bill of Rights, and the Second Amendment language comes from paragraph 17 of that Bill of Rights. And then we see a list of other amendments, and then we have the 11th proposed amendment which speaks exactly to the reverting control over the militia back to the, back to the states.

Now, there is no reason to suppose that Virginia would have made the same demand twice, that they would have, like all the other demands, it had separate keep and bear arms provisions and separate militia provisions that people were being duplicative for no reason. The fact is that the militia concerns were heard and they were voted down, and the Second Amendment concerns were the ones that the Federalists were easily agreeable to because the right to keep and bear arms by individuals was not controversial, it would not have altered the structure of our Constitution, and so those were agreed to quite readily.

CHIEF JUSTICE ROBERTS: Why isn't the trigger lock provisions that are at issue here, why aren't they similar to the various provisions that Justice Breyer mentioned like the gun powder restriction? In other words, for reasons of domestic safety, they said you can't store the gun powder anywhere but on the top floor. Why isn't the modern trigger lock provision similar to those?

MR. GURA: Well, it's not similar because the modern trigger lock provisions are aimed squarely at self-defense in the home. There is no risk today that the kind of powder we use --

CHIEF JUSTICE ROBERTS: Well, there is always a risk that the children will get up and grab the firearm and use it for some purpose other than what the Second Amendment was designed to protect.

MR. GURA: Oddly enough, a child can access a firearm stored consistently with the District's law, that is, a firearm that is disassemble and unloaded, nothing would prevent a child --

CHIEF JUSTICE ROBERTS: Well, right. But, I mean, you don't necessarily expect a young child to be able to reassemble a pistol.

MR. GURA: That's true, Your Honor.

However, better safe storage approach is the one used by the majority of jurisdictions, I believe, that do have such laws which is to require safe storage, for example, in a safe. And that is a reasonable limitation. It's a strict scrutiny limitation, whatever, standard of view we may wish to apply, I think, would encompass a safe storage provision.

But this is not a safe storage provision because we have specific exceptions that allow you to actually use the firearm in recreational shooting and also in a place of business. And we have litigation history from Washington, D.C., that tells us that we are not supposed to have inoperable firearm for purposes of self-defense because they simply do not trust people to defend themselves in our home. And -- and self-defense is the heart of the Second Amendment right. That is what Blackstone is getting at when he spoke of the fifth auxiliary right to arms, because it protected the right of personal preservation.

JUSTICE STEVENS: You say that the right of self-defense was the the heart of the Second Amendment, in your view. Strangely that some provisions suggested that and were not accepted by the authors of the Second Amendment.

MR. GURA: Which provisions were those, Justice Stevens?

JUSTICE STEVENS: Pennsylvania.

MR. GURA: Well, Pennsylvania's provision was certainly influential. Remember, Madison was trying to mollify the anti-Federalists' concerns. The Second Amendment is clearly addressed to Pennsylvania and New Hampshire and New York and all these other states that were demanding a right to keep and bear arms and there was always understood to be an individual right, because that is the way in which the right that was violated by the British in the war of revolution that occurred not too long ago. I'm finished.

JUSTICE BREYER: Thinking of your exchange with the Chief Justice and think of the trigger lock in your view and what the question was, do you want -- I don't know how well trigger locks work or not -- but do you want thousands of judges all over the United States to be deciding that kind of question rather than the city councils and the legislatures that have decided it in the context of passing laws? I mean, isn't there an issue here and a problem with respect to having courts make the kinds of decisions about who is right or not in that trigger lock argument?

MR. GURA: When a fundamental right is at stake, there is a role for judicial review, Your Honor.
We are not going to see a thousand judges review such laws because Washington, D.C.'s is the only example of it.

JUSTICE GINSBURG: If it's a fundamental right, what about licensing? One piece -- we've talked about trigger lock, we've talked about the ban on handguns, but there is also a requirement that there be a license for possession of a handgun. Assuming you're right on the first question that you couldn't flatly ban handguns, what about a requirement that you obtain a license to have a handgun?

MR. GURA: Justice Ginsburg, that would depend on the licensing law itself. We don't have a problem with the concept of licensing so long as it's done --

JUSTICE GINSBURG: What about this very law? If you take out the ban -- there is a law on the books.

It's one of the ones that you challenged. It's section 22-4504(a). Wouldn't that be okay -- would that be okay? It's just that you have to have a license to carry.

MR. GURA: So long as the licensing law is not enforced in an arbitrary and capricious manner, so long as there are some hopefully objective standards and hopefully some process for --

JUSTICE GINSBURG: It says you have to get a license if you want to possess a gun. What kind of standard? It just says you have to have a license.

MR. GURA: Well, the government could set reasonable standards for that, Your Honor. The government could require, for example, knowledge of the State's use of force laws. They can require some sort of vision test. They could require, perhaps, demonstrated competency. And those are the types of things that we sometimes see; background checks, of course. Those are going to be reasonable licensing requirements.

However, if the license requirement is we only wanted to give licenses to people who look a certain way or depends on how we feel or if the licensing office is only open Thursdays at 3:00 in the morning -- I mean, it all depends on the implementation.

CHIEF JUSTICE ROBERTS: What about -- what about age limits, got to be over 18 or you've got to be over 21 to get a license?

MR. GURA: Well, certainly the age of majority issue is -- is an appropriate one. I don't think there is a problem with requiring a majority age 18 and then 21 for --

CHIEF JUSTICE ROBERTS: Is the age limit necessarily the same nationwide? It may be 16 in Wyoming makes more sense but 21 in the District.

MR. GURA: Courts would have to examine those at some point. The government would have to look at the circumstances it confronted and enact up to some point an age limit. I think it would be very difficult to have an age limit that goes beyond 21, because that's the majority age for most things in the United States.

And, in fact, we have the voting rights cases from the late '60s where --

JUSTICE STEVENS: Let me ask a question are you, in effect, reading the amendment to say that the right shall not be unreasonably infringed instead of shall not be infringed?

MR. GURA: There is that inherent aspect to every right in the Constitution.

JUSTICE STEVENS: So we can -- consistent with your view, we can simply read this: "It shall not be reasonably infringed"?

MR. GURA: Well, yes, Your Honor, to some extent, except the word "unreasonable" is the one that troubles us, because we don't know what this unreasonable standard looks like.

JUSTICE SCALIA: You wouldn't put it that way. You would just say it is not being infringed if reasonable limitations are being placed upon it.

MR. GURA: That's another way to look at it, Your Honor. Certainly --

CHIEF JUSTICE ROBERTS: -- you would define reasonable in light of the restrictions that existed at the time the amendment was adopted.

MR. GURA: Those restrictions.

CHIEF JUSTICE ROBERTS: You know you can't take it into the marketplace was one restriction so that would be we are talking about lineal descendents of the arms but presumably there are lineal descendents of the restrictions as well.

MR. GURA: Framing our practices would inform the kind of restrictions that would be accepted, but even beyond that, they also form the contours of the right. In the Fifth Circuit, for example, we have the Emerson decision, Alpha Seven decision, and the way that court examines the Second Amendment, when they get these felon and possession bans and drug addict and possession challenges, what they say is, these people simply are outside the right, as historically understood in our country, and that's a very important aspect to remember, that the Second Amendment is part of our common law tradition, that we look to framing our practices in traditional understandings of that right, as to both the reasonableness of the restrictions that are available as well as the contours.

JUSTICE SOUTER: Can we also look to current conditions like current crime statistics?

[Speaking of which:
District of Columbia Murder Rate 1966 - 2006 ['gun ban'
takes effect in 1976]
Year Population Murder
1966 * 808000 * 141
1967 * 809000 * 178
1968 * 809000 * 195
1969 * 798000 * 287 (Pop. starts decline)
1970 * 756510 * 221
1971 * 741000 * 275
1972 * 748000 * 245
1973 * 746000 * 268
1974 * 723000 * 277
1975 * 716000 * 235
1976 * 702000 * 188 ('Gun ban' enacted)
1977 * 690000 * 192
1978 * 674000 * 189
1979 * 656000 * 180
1980 * 635233 * 200
1981 * 636000 * 223
1982 * 631000 * 194
1983 * 623000 * 183
1984 * 623000 * 175
1985 * 626000 * 147
1986 * 626000 * 194
1987 * 622000 * 225 (Murder rate starts rising sharply, while population
continues decline)
1988 * 620000 * 369
1989 * 604000 * 434
1990 * 606900 * 472
1991 * 598000 * 482
1992 * 589000 * 443
1993 * 578000 * 454 ("gentrification" in the projects starts - moving the
"problem" out of the city)
1994 * 570000 * 399
1995 * 554000 * 360
1996 * 543000 * 397
1997 * 529000 * 301
1998 * 523000 * 260
1999 * 519000 * 241
2000 * 572059 * 239
2001 * 573822 * 231
2002 * 569157 * 264
2003 * 557620 * 249
2004 * 554239 * 198
2005 * 582049 * 195
2006 * 581530 * 169
So, when COMPARING 1976 TO 2006, there were 19 less murders after the
population had FALLEN by 120,470. Some 'decline', eh? Not to mention all those
years when the murder rate had a HUGE spike....]

MR. GURA: To some extent, Your Honor, but we have certainly --

JUSTICE SOUTER: Well, can they consider the extent of the murder rate in Washington, D.C. using handguns

MR. GURA: If we were to consider the extent of the murder rate with handguns, the law would not survive any type of review, Your Honor.

JUSTICE SCALIA: All the more reason to allow a homeowner to have a handgun

MR. GURA: Absolutely, Your Honor.

JUSTICE BREYER: Whose judgment is that to consider?

MR. GURA: Well, those statistics might be considered in some way. The fact is that at some point there is a role for judicial review, and you can't just grab a statistic -- and some of the statistics that were used here are very weak, and studies that have been rejected by the National Academy of Sciences repeatedly.

We don't really have -- it's hard to say that those laws

JUSTICE SOUTER: But I think -- I don't want you to misunderstand my question. My question is that by looking at the the statistics, I'm not suggesting that there is only sort of one reasonable response to them. I want to know whether, whether the policymaker may look to them; and I take it your answer is yes.

MR. GURA: To some degree yes, policymakers have to be informed by what's going on in order to make policy. However, there are constitutional limitations enforced by courts that are going to limit those policies, and when you have a ban which bans 40 percent of all weapons that are the type of weapons used by civilians, 80 percent of all self-defense occurs with handguns; when you have that kind of ban, functional firearms ban, these are extreme measures.

JUSTICE SOUTER: They may be. I just want to make sure you're not making the argument that because there was not a comparable homicide rate, or for that matter a comparable need for self-defense from handgun use in 1792, that therefore -- 1790 -- that therefore the statistics of today may not be considered. You're not making that argument?

MR. GURA: No, Your Honor, the fact is that we can always debate these things, but the object of the Bill of Rights is to remove certain judgments from the legislature, because we can make policy arguments, normative arguments about many provisions of the Constitution, but to make those arguments and say well, we've decided as a matter of policy that the right to keep and bear arms is no longer a good idea and therefore we are going to have restrictions that violate that stricture in the Bill of Rights, that shouldn't pass judicial review. At some point we have to go to Article 5 if you think the Constitution matters

JUSTICE KENNEDY: Just to be clear -- and I don't want to misstate your position, but my understanding, I at least inferred that you would consider it reasonable to ban shipment of machine guns and sawed-off shotguns in interstate commerce?

MR. GURA: Yes, Your Honor.

JUSTICE STEVENS: And how about a State university wants to ban students having firearms in the dormitory?

MR. GURA: Certainly that creates some sort of an evidentiary record. Conceivably that --

JUSTICE STEVENS: That's the bare fact.

That's what - a State regulation prohibits students from having arms on campus.

MR. GURA: We would have to fact find --

JUSTICE STEVENS: You'd have to think about that.

MR. GURA: -- some fact finding. It's something that might be doable, but again that's something that's so far from what we have here. We have here a ban on all guns for all people in all homes at all times in the Nation's capital. That is too broad and too sweeping under any review. Thank you, Your Honor.

CHIEF JUSTICE ROBERTS: Thank you, Gura.

Mr. Dellinger, 10 minutes.

REBUTTAL ARGUMENT OF WALTER DELLINGER, ON BEHALF OF THE PETITIONERS
MR. DELLINGER: Mr. Chief Justice, I want to address first why this law is reasonable and should be sustained, and why the judgement below has to be reversed, however -- whatever position you take on the theories of the amendment. And in defending the eminent reasonableness and careful balance of this law, I need to start with the trigger law, about which Justice Alito asked.

CHIEF JUSTICE ROBERTS: Well, before you start with it, how many minutes does it take to remove a trigger lock and load a gun? Because both the gun has to be unloaded; it has to have a trigger lock under the District laws.

MR. DELLINGER: Those are alternatives, Mr.
Chief Justice.

CHIEF JUSTICE ROBERTS: If the assembly --

MR. DELLINGER: Just a trigger lock.

CHIEF JUSTICE ROBERTS: In either case it has to be unloaded, correct?
MR. DELLINGER: There are some versions of the trigger lock that allow you to put the trigger lock on and then load the gun. But the piece that goes in the trigger mechanism, even someone as clumsy as I could remove it in a second.

CHIEF JUSTICE ROBERTS: Well the law as I understand it says that the gun has to be unloaded. So under your hypothetical I assume that would violate the district's law if the gun is still loaded.

MR. DELLINGER: It's a question of where you put the parenthesis. I read that as disassembled and unloaded or under a trigger lock and that's the, that's the way the district.

CHIEF JUSTICE ROBERTS: So how long does it take if your interpretation is correct how long does it take to remove the trigger lock and make the gun operable.

MR. DELLINGER: You place a trigger lock on and it has the version I have a few that you can buy them at 17th Street hardware has a code like a three digit code. You turn to the code and you pull it apart.

That's all it takes. Even --

JUSTICE SCALIA: Turn on the lamp next to your bed so you can, you can turn the knob at 3-22-95 so

CHIEF JUSTICE ROBERTS: Is it like that is it a numerical code.

MR. DELLINGER: Yes.

CHIEF JUSTICE ROBERTS: So then you turn on -- many you pick up your reading --

MR. DELLINGER: That's right. Let me tell you why at the end of the day this doesn't, this doesn't matter. For two reasons. The lesson.

CHIEF JUSTICE ROBERTS: It may not matter but I'd like tomorrow idea about how long it takes.

MR. DELLINGER: It took me three seconds.

I'm not kidding. It's not that difficult to do it.

That was in daylight. The other version is just a loop that goes through the chamber with a simple key. I have the key I put it together now of course if you're going, if you want to have your weapon loaded and assembled, that's a different matter but here's where I want to address the trigger lock. Here's why it doesn't matter for the handgun law. The district believes that what is important here is the ban on handguns. And it also believes that you're entitled to have have a functional usable weapon for self defense in the home and that's why this is a very proportionate law.

CHIEF JUSTICE ROBERTS: If proportionate in other words you're saying your interest is allowing self defense in the home.

MR. DELLINGER: Yes.

CHIEF JUSTICE ROBERTS: Is it really make sense to say the best self defense arm is a rifle as opposed to a pistol.

MR. DELLINGER: It is -- there has been no showing here that a rifle or a shotgun is inadequate for the purposes of self defense in this facial challenge.

JUSTICE ALITO: Is there anything to show that the district council ever considered the issue of self defense that because they banned handguns and they had this provision on the trigger lock which and the issue my question with the trigger lock doesn't have to do with whether trigger locks are generally a good idea it's whether you're ever allowed to take it off for purposes of defense. There is no -- is there anything to show that the, that the council actually considered what sort of weapon is appropriate for self defense.

MR. DELLINGER: There are decisions in the District of Columbia about the right of self defense that apply to this. But here's the most important point. It cannot effect the validity of the handgun law if you disagree with us that my statements are not sufficient to say that we believe that the law should be read given the self defense compulsion to allow whatever use makes it functional if you don't agree with that and if you think there is a controversy on this point because we believe you should have a functional firearm available in the home of law-abiding citizens who wish one. If we are wrong about that and the trigger lock is invalid then it has no effect on the handgun ban. The trigger lock applies to all weapons if it's valid and it means what they say it does none of the weapons would work. We don't need a handgun it's unusable. If it's invalid or if it has the construction we believe it cannot possibly effect the handgun if you strike down the trigger lock law you're throwing us in the barn patch where we think it's where we are happy to be if all we have to do is to make clear in the trigger lock law what we have said here today that it's, it's available for self defense.

CHIEF JUSTICE ROBERTS: It's a related point. Do you understand the carry ban to apply if you carry the firearm from one room in the house to another.

MR. DELLINGER: That only applies if it's, in it's unregistered now you can't register a handgun, you can't carry a handgun but that's because it's possession is prohibited. That is to say you can't carry marijuana or hero in from one room to the other either because you can't use it at all.

CHIEF JUSTICE ROBERTS: Why does the D.C.
law phrase it in those words you can't carry it anywhere.

MR. DELLINGER: Well it's the carry provision you cannot carry unregistered firearms.
That's just a general requirement that firearms be registered. You're not allowed to register handguns is the mechanism by which they are prohibited. Now here is, to address your question about why a ban is unreasonable the one thing we know the Second Amendment is not about is it's not about the interest of collectors. Some people collect guns the way they do stamps and if that were what the amendment were about then prohibiting someone from having a particular type of gun would prevent them from completing the set but the notion --

CHIEF JUSTICE ROBERTS: Why isn't that covered by the provision that you have the right to keep arms?

MR. DELLINGER: Well, the word "keep" would encompass -- "keep" can encompass every use of an arm, and that's why it provides no limit at all, unless you read it in combination with "keep and bear" and that in combination with "well-regulated militia."

JUSTICE SCALIA: You mean you can't have any more arms than you would need to take with you to the militia? You can't have -- you can't have, you know, a turkey gun and a duck gun and a 30.06 and 270 and, you know, different hunting guns for different.

MR. DELLINGER: Well --

JUSTICE SCALIA: You can't do that? I mean a State could say you don't --

MR. DELLINGER: Of course you could do that.

JUSTICE SCALIA: You'd have to have a 12 gauge and that's it.

MR. DELLINGER: And like the District that allows that, as every State does. There are --

JUSTICE KENNEDY: I -- at least to me the question is, what would be the constitutional basis for insisting on Justice Scalia's suggestion that you need a number of guns? You have argued, it seems to me, that the District or a government could prohibit just what he said, unless you needed one to take to the militia.

MR. DELLINGER: I do not know why that would pass the reasonableness scrutiny that this law would because a powerful, overwhelming case could be made that you're eliminating the one type of weapon -- this law is -- is designed only for the weapon that is concealable and movable, that can be taken into schools and on to the Metro, can be easily stolen and transmitted among --

JUSTICE KENNEDY: I'm asking about the constitutional standard you apply to a hypothetical statute which would prohibit the guns Justice Scalia described. What is your position as to the validity of such a hypothetical law?

MR. DELLINGER: Would you apply this standard. You would ask whether the ban is one that's carefully balanced and considerations of gun ownership and public safety. I don't see how, once we are in the land where you -- where there is a right, there is a far weaker case if there is any need for public safety to limit the number of guns one has. Here there is an overwhelming case and we are talking about local legislation.

I know, Justice Kennedy, that you would be concerned about a national government which sets a single standard for rural and urban areas, for east and west, north and south. Here you have legislation that is adopted by a group of citizens in the District, operating under the authority of Congress, but it is local legislation. And if it's still good law that States and local governments across the country can strike these balances as they have, it would be deeply ironic to preclude the District of Columbia as being the only place that could enact legislation free of the strictures of the Second Amendment.

And when you ask about the statistics, what is critical here is not to apply the kind of categorical standard the court below did or a kind of strict scrutiny that would strike this law down. This is an area unlike areas where government regulation is presumively illegitimate. This text contemplates regulation of inherently dangerous weapons. And where the battle -- the great battle over methodology, to which Justice Breyer replied, in these briefs indicates that this is the kind of right -- where you have disputes among experts, it's a kind of right where even if you recognize it, deference needs to be given to the legislative resolution rather than have courts try to decide how best to resolve the statistical and methodological debates.

Thank you Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: Thank you, Mr. Dellinger.

The case is submitted.

Also See:

Right to Keep and Bear Arms -
Historical Directories:

Origins

Precedent

After The Fact

Amendment II and the Law

A Proclamation, "a good new Fire-lock . . . to be delivered to every man . . . to be his own for ever thereafter", May 9, 1709

2008-03-14T05:32:00.000-07:00

By the Honourable Col. FRANCIS NICHOLSON, and Col. SAMUEL VETCH.

A PROCLAMATION

WHEREAS Her Majesty hath been pleased to Intrust us with Her Royal Commands and Instructions to the Governours of Her several Provinces upon the Continent of America, who are to furnish their respective Quota's towards the present Expedition, which Her Majesty hath fitted out with so great Care and Expence, for the Relief and Safety of Her Good Subjects, upon the said North Continent of America; and that at a Juncture when both Men and Money are so much wanted in Her several Armies in Europe; and that there might remain no ground, either from the Surmises of Her Enemies, or the Doubts of Her Subjects, to Suggest any thing {Omitted text, 1w} might give the least shadow for a scruple, or binder Her Loyal Subjects from Joyning Unanimously and Cordially in {Omitted text, 2w} Expedition, which Her Majesty hath Intended wholly for the Safety of Her Subjects upon the North Continent of America.

WE do therefore in Her Majesty's Name, assure all such as shall go upon the said Expedition, that as they shall be under the Command of their own proper Officers during the said Expedition; so as soon as it is over, they shall all Return to their respective Homes. And further as a particular mark of Her Majesty's favour & Respect to all such of Her Subjects as shall Go as Volunteers on the said Expedition: She hath sent over by us a good new Fire-lock, Cartouch-box, Flints and Ammunition, to be delivered to every man, as soon as he shall Enlist himself in the Service, to be his own for ever thereafter; And that Her Majesty will moreover put distinguishing Marks of Her Favour up-on all Gentlemen and others, who shall go as Volunteers.

And Lastly, To Consummate all Her Majesty's Favours to Her Subjects in these Parts, She hath Impowred us, by a particular Instruction, under Her Royal Signature, to Assure all Her several Colony's, who shall Contribute towards the Reduction of the Places against which the present Expedition is designed; that when it shall please God by the Success of Her Arms, to Reduce them to Her Subjection and Obedience; (which Great Work seems by Heaven to be Reserved to be done by Her Majesty, to Crown all the Wondrous Actions of Her Glorious Reign) all those Persons and Provinces, who shall have Contributed towards the Reduction of the same; that they shall have a preference, both with regard to the Soil and Trade of the said Country, before all other Her Majesty's Subjects whatsoever; and when they shall Form any Reasonable proposals amongst themselves, for Securing the Trade of the said Country to their Respective Colony's, Her Majesty shall {Omitted text, 1w} to Give Her Royal Sanction to the fame.

Given under our Hands at Boston, May the Ninth, 1709. In the Eighth Year of Her Majesty's Reign.

Francis Nicholson.
Samuel Vetch.

GOD Save the QUEEN.

By His Excellency,

THE aforegoing Proclamation is agreeable to Her Majesty's Instructions; To Her Majesties Commands to my self, and for Her Service, Let it be made Publick.

J. DUDLEY

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Origins

Precedent

After The Fact

Amendment II and the Law

At a General Assembly, "and shall allow to the Owner of each Gun so hired", June 14, 1776

2008-03-13T22:48:00.000-07:00

At a General Assembly of the GOVERNOR and COMPANY of the Colony of Connecticut, holden at Hartford, by special Order of His Honor the GOVERNOR, the fourteenth Day of June, Anno Domini, 1776.

WHEREAS the Troops now Rasing in this Colony must be furnished with necessary Fire Arms, Accoutrements and Utensils for the Service. It is therefore

RESOLVED by this Assembly, that Captain Jeremiah Wadsworth and Colonel Jonathan Fitch, he, and they are hereby impowered and directed forthwith to purchase a sufficient Number of Tin Kettles, if be had in this Colony, for the Use of the two Battalions now raising, and defined to the Northern Department, and cause the same to be delivered to the Care of the Commissary, to be forwarded with the Baggage of said Battalions to the Northward, taking his Receipt therefor. They are also hereby directed to purchase suitable iron Hollow War, so far as Tin cannot be had, sufficient for the Use of the Battalions, now raising, and destined to New-York, and Toward the same to the Care of Commissary-General at New-York, by the cheapelt and moil convenient Carriage, taking his Receipt therefor.

That the Committee who have procured Fire Arms to be made in the several Counties, be, and they are hereby directed to make a Division of the whole Number of those Arms already procured, to and among the several Towns in this Colony, according to their respective Litts, and entity to the Select Men of each town, the number of Guns and Bayonets, allotted to them, and where they may be found, and give proper Orders to them to receive the same; and such Select-Men shall deliver such Arms as they shall so receive, to the chief Officers of the Troops now ?aifing in such Towns, taking their Receipts therefor, which Receipts shall be lodged in the Hands of the Treasurers of the respective Towns; and such Arms, when returned, shall be lodged with the same Treasures, to be by them kept in constant Repair, at the Colt of such Towns. And fully to equip said Troops.

It is further RESOLVED, That the Fire Arms taken from Persons, belonging to this Colony, who are Enemies to this Country, and in the Hands of the Committees of Inspection, or others shall be marked with the initial Letters of the Owner's Names, and appriled by two indifferent Men, under Oath, and a particular Account thereof taken by such Committee, and lodged with the Treasurers of the respective Towns where such Owners live, and shall also be repaired, if Need be, by Order of such Committee, at the Expence of the Colony, and when repaired, shall be delivered to the chief Officers of the Companies raising in the Towns where the Owners of such Arms belong, taking their Receipts therefor, which Receipts, together with the Marks and Prices of such Arms, and the Names of the Owners, shall be recorded by the Town Clerks of the Towns where such Owners lived when said Arms were taken from them; and a particular Account of the Repairs of those Arms shall, by such Committee, be laid before the Committee of Pay-Table for Adjustment; and they are directed to give Orders on the Treasurer for Payment; and when such Guns are returned, they shall be lodged with the Clerk of such Committee of Inspection. Here to be kept until further Orders from such Committee, or this Assembly; and in Case of Loss of any such Arms, of inimical Persons, the same may be laid before this Assembly, for their Orders thereon.

And it is further RESOLVED. That the Select-Men in the several Towns be, and they are hereby directed to purchase or here Arms to furnish such Soldiers of any of the Battalions aforesaid as cannot furnish themselves, or be furnished in any of the Ways aforesaid, and shall allow to the Owner of each Gun so hired, the Sum of Six {Omitted text, 1w} hugs and to the Owner of each Bayonet, Belt and Cartouch Box, so hired, the Sum of Four Shillings, and if such Arms are lost by inevitable Providence, the Owner thereof shall be paid for the same according to Appraisal to be made thereof by two indifferent Men under Oath: and a particular Account of all such Arms, purchased or hired, as aforesaid, shall be taken by the Select-Men, and laid before the Committee of Pay-Table, who shall give Orders on the Treasurer for Payment thereof, and of the Cost of purchasing or hiring such Arms. And in Case a sufficient Number of Arms cannot be obtained in the Ways aforesaid, the Number wanting shall be impressed from {Omitted text, 1w} or others, not in the Militia Roll, by Warrant for the Po pole, from Civil Authority, and the Owner or Owners of such impressed Arms, may demand a Receipt of the Officer who shall impress and receive {Omitted text, 1w} and be paid the same Sums for the Use thereof, as those from whom Arms are hired as aforesaid: and in Case of Loss, shall be paid for such Arms, according to Apprizal to be made as aforesaid.

And it is further RESOLVED, That the Captain, or chief Officer of each Company in the Battalions aforesaid, shall take a particular Account of all ARms used in his Comopany, distinguishing such as belong to the Colony, such as oldies provide for themselves, such as are purchased, such are hired, such as are impressed as aforesaid, and such as belong to persons inimical, and transmit the same, with the Prices and Repairs, to his Honor and Governor, that he may know the State thereof.

And it is further RESOLVED, That the Select Men and Committees aforesaid, who are to procure any Arms to be repaired, shalll keep a particular Account of the Repairs of such Arms, and enter the same distingctly, with the Prices of such Arms in their Accounts to be transmitted to the Committee of Pay-Table, for their Orders for Payment; and when such Arms shall be returned to the Owners, the Cost of Repairs shall be deducted out of the Premium or Hire thereof; and in Case of Loss of any of the Arms taken up in any of the Ways aforesaid, by inevitable Providence, the Value thereon, at the Apprizal aforesaid, together with said Premiums, or Hire shall be paid to the Owners of such Arms, upon proper Certificate thereof, made to the Satisfaction of the Committee of Pay-Table.

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Right to Keep and Bear Arms -
Historical Directories:

Origins

Precedent

After The Fact

Amendment II and the Law

Williamsburg, "and of the Number and Condition of their Arms", Aug. 20, 1776

2008-03-11T15:48:00.000-07:00

Williamsburg, August 20, 1776.

SIR,

As we have great Reason to believe that our Enemies will make a vigorous Attack on this Commonwealth if they should not succeed in their Attempts against New York, where they have at this Time a very large and formidable Force, which may be transported hither in a few Days: I have thought proper, by the Advice of the COUNCIL, to direct that the Militia of this State be immediately trained, armed, and prepared for Action, in the best Manner our Circumstances will permit. Remissness in this important Business may be attended with the most fatal Consequences. You are therefore, Sir, required forthwith to give the necessary Orders for arming and training the Officers and Men under your Command. Your Guns must be carefully examined, and necessary Repairs made. You must be particularly careful to procure good Powder Horns and Shot Bags, or Cartouch Boxes, with as much Powder, Lead, and Flints, as you can; and you are also immediately to make a full Return of the present Number of your Militia, and of the Number and Condition of their Arms, and the Quality of Ammunition, &c.

GIVEN, under my Hand, this 20th of August, 1776.

JOHN PAGE, President.

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"and that no Provisions, Arms, Ammunition, or other Necessaries whatsoever, be carried from hence to them"

2008-03-09T16:15:00.000-07:00

By His Excellency

Richard Earl of Bellomont, Captain General and Governour in Chief of His Majesties Province of New-York, and Territories depending thereon in America, and Vice Admiral of the same, &c.

A PROCLAMATION

WHereas His most Excellent Majesty hath received Advice, That several Ships of Force, fitted out of Scotland, were designed to settle themselves in some parts of America; and left the same should derogate from the Treaties his Majesty hath entered into with the Crown of Spain, or be otherwise prejudicial to any of his Majesties Colonies in America, His Majesty has been pleased to signifie his Royal Pleasure to Me, That I should strictly forbid all his Majesties Subjects, or others, inhabiting within the Districts of my Government, that they forbear holding any Correspondence with, or giving any and assistance to any of the said Persons, while they are engaged in the aforesaid Enterprize; and that no Provisions, Arms, Ammunition, or other Necessaries whatsoever, be carried from hence to them, nor be permitted to be carried, either in their own Vessels, or any other Ship or Vessel for their Use. In pursuance of his Majesties said Royal Will and Pleasure, I have thought fit, by and with the Advice of his Majesties Council of this Province, to publish and Declare his Majesties said Pleasure, and by these Presents do strictly Charge and Command all and every of his Majesties Subjects, and others within this Province and Territories depending thereon in America, That they forbear holding any Correspondence with, or giving any Assistance to such Person or Persons, who have been fitted out of Scotland in manner aforesaid, and are said to have settled in a certain place, which they have called Callidonia, That no Provisions, Arms, Ammunition, or other Necessaries whatsoever, be carried either in their own Vessels, or in any other Ship or Vessel for their Use, from this Province, or any part thereof. And his Majesties Collector and Receiver General, and all other Officers of his Majesties Custom-House, are hereby required to take Notice hereof accordingly.

And I do further strictly Charge, Command and Forbid (by and with the Consent of his Majesties Council, as aforesaid) all his Majesties said Subjects, and others within this Province, That they neither by themselves, nor by any other Persons, authorized by them, do, contrary to his Majesties Royal Pleasure as aforesaid, hold any Correspondence, or give any Assistance, or enter into any Traffick or Commerce with such Persons as are said to be settled in Callidonia aforesaid. And it any Person or Persons within this Province, by themselves, their Factors or Agents, shall, contrary to, and against the true intent and meaning of this his Majesties Royal Will and Pleasure signified unto me, as aforesaid, hold any Correspondence, or give any Assistance, or enter into any Traffick or Commerce, in manner aforesaid, then all such Person or Persons so acting, as aforesaid, shall incur such Pains, Penalties and Forfeitures, as by Law in such Cases are provided. And all his Majesties Subjects, and others, within this Province, are hereby Required to take due Notice hereof, and to observe his Majesties said Royal Will and Pleasure in all and every of the Premises, as they will answer the Contrary at their Peril.

Given at Fort William Henry in New-York the 15th Day of May, 1699. and in the Eleventh Year of his Majesties Reign.

By Order, B. Colens, Cl. Concilij...........Bellomont.

God Save the KING.

Printed by W. Bradford, Printer to the Kings most Excellent Majesty, in New-York, 1699.

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"who were obliged ' to take up arms in their defence"

2008-03-07T15:35:00.000-07:00

From the London Evening Post, 29th of April 1775.

To the THREE GENERALS, with Scotch Orders, on their Voyage to North-America.

Sigillum veritatis simplicitas est.

Critical and faithful Extracts from Colonel Cavallier's Memoirs of the Wars of the Cevennes, or Lower Languedoc, in his own hand writing, and in the French language.

THE Lower Languedoc, or Cevennes, is bounded to the East by the river Rhosne, and to the South by the Gulph of Lyons. Its extent is 30 French leagues from North to South, and 20 from East to West. The country throughout is very woody and mountainous. Cavallier was a baker's son, born at a village called Rebeaute, in the very center of the seat of war, which began in 1701, and ended in 1704.

The persecutions of that great tyrant, Lewis the XIVth, continuing against the Protestants with unremitted fury, from the revocation of the edict of Nantes in 1685, this country underwent the most shocking scenes of misery, neither sex nor age were spared; for unless they conformed, they were fined, imprisoned, put into dungeons, sent to the galleys, tortured, hanged or racked, till at last being drove to the utmost despair, they resolved to take up arms in their defence, chusing to run all hazards, even unto death, rather than be compelled by violence to give up their liberty of conscience, and every thing besides that was dear to them. By such resolute conduct, they soon obtained at Court the name of Rebels, as the Americans have at this crisis from the Scotch to a man, from all placemen, pensioners, and sycophants, and its feared, even from the -- himself. At first about twenty young men, well armed, associated together, with a view of rescuing their parents and relations out of jails and dungeons, in which they succeeded, as well as their force permitted. In consequence of this beginning, other young men joined them, and being in a short space encreased to one or two hundred, they thought it expedient to divide into parties, and to chuse a head, which fell to Cavallier's lot, then only 24 years old; to whose commands they engaged to pay the strictest obedience, and religiously kept to it to the very last.

First observation of the Memorialist.

' From this fatal period every thing went to ' wreck; the glory of the great Lewis begun to ' be eclipsed, and his laurels to wither; from ' his persecutions he saw all the scourges of God ' upon his kingdom, war, plague, and famine; ' his strong places taken, his armies destroyed in ' battle, & c.'

Count Broglio then commanded in this country, and having garrisons in several towns, as Montpellier, Beaucaire, Avignon, &c. he sent detachments, aided by the militia, to annihilate, as he termed it, the Rebels; but being generally worsted, he was forced to represent to the Court the impossibility of overcoming those infatuated desperadoes. The alarm was thereupon soon taken, and they immediately dispatched several regiments to his aid; but those not proving sufficient, Marshal Montrevel, at the end of 1702, arrived at Nimes, having first and last TEN THOUSAND reglulars to support him, which were supposed amply sufficient to extirpate the contemptuous banditti. The Marshal was so sure of performing this business effectually with the officers under him, that he seldom took the field, judging it below his dignity, and therefore spent most of his time in following the ladies.

Second observation of the Memorialist.

' After our defeat at Perpignan, our forces ' were so broken and scattered, that it was very ' probable we could never have rallied again; ' and really it would not have been at all surprising, ' considering we were entirely undisciplined. ' 'Tis true, I was absolute in my command, ' but had no more experience than my ' soldiers, wherefore we owed our success to Divine ' Providence, which sustained us in our ' greatest calamities, working continual miracles ' in our favour; and among the rest it is very remarkable, ' that sometimes we perceived our ' enemy so much disheartened, they could not ' resist us, though FOUR to ONE in number. ' This I can say, it was not by our valour we ' over came them, although their troops were well ' disciplined, and we but militia without order; ' but there was this difference between us, we ' fought for the Truth and our Liberties, they for ' a Tyrant, who had violated both human and divine ' laws against his subjects, who were obliged ' to take up arms in their defence, after a persecution ' of thirty years, contrary to his sacred ' oath, so often reiterated and recorded in Parliament.'

Notwithstanding the hectoring Marshal, after the defeat, had assured the Court, they would never hear more of the Rebels, for he had reduced them so effectually, that there remained but a few, who had made their escape, and never durst appear again; yet he was compelled soon after to write for more troops, for otherwise it would be impobssile for him to compleatly execute his commission.

At the end of 1703, the King's troops were TWENTY-FIVE THOUSAND strong, and all wintered in the midst of us; but early in the spring, they were reduced to TWELVE THOUSAND, by detachments to Spain and Italy. The King, however, being informed of succours from the Allies being intended for us Rebels, FOUR THOUSAND were ordered back from Savoy: about which time Marshal Villars arrived in the Province to take the command. His first step was to procure a conference with me through the Marquis La Lande, who being a man of good character, I readily accepted his invitation, wherein he told me, The King, by an effect of his clemency, wished to put an end to a war between his own subjects, which could produce nothing but the ruin of his kingdom; and that it was his own enemies had stirred it up, and fomented it; after which we parted. But this was the prelude to another with Villars himself, from whom I soon received an invitation, which I accepted, under a strong guard on both sides. Our discourse was much the same as with La Lande, with a deal of the King's clemency. He heard my demands very attentively, but said, there were some articles, although he was vested with full powers to treat with me, which he could not consent to, till he had an answer from the King, upon which we parted. After eight days he sent to me again, when I found some material points altered; but as I had gone so far, it was impossible for me to recede, without losing many powerful friends who had assisted us, and above all having no tidings of those succours with which we had been so long and so often flattered; I therefore resolved to conclude the treaty on the best terms I could, which Villars (in the King's name) and myself, signed at Nimes on the 17th of May 1704.
Shortly after, I was again sent for to go to the Marshal at Nimes, where I was informed our destination was changed, and that I was to go with my men to Brissac; and presently after we began our march to Lyons, and thence to Dijon, where I wrote to Monsieur Chamilard, the Prime Minister, that if I could be admitted to the King's presence, I had something to propose towards putting an end to the troubles in the Cevennes.

' Herein I had two views; the first was to ' know whether the King knew all that had ' passed between Villars and me, which I much ' doubted; and the second, to endeavour that ' the terms of the treaty might be strictly adhered ' to, as the Marshal had evaded many of the ' most material articles.'

Great pains were used at Dijon, for me to discover what I had to say to the King, but to no purpose; whereupon I was soon sent for to Versailles, where Chamilard told me, as he was first Minister, that opening myself to him would be the same as to the King; but I kept firm to my resolution, which immediately procured my introduction by Monsieur Chamilard to the King in his closet, who heard my story very patiently, and without interruption, until I implored his Majesty to confirm the promises made us by the Marshal de Villars. Here he interrupted me, and with an angry, low voice, he said, "I order you not to speak one word of that treaty, on pain of incurring my indignation."

BY the foregoing short extracts, we find a people oppressed, most in humanly butchered, and drove to take up arms to defend their lives and liberties against an execrable Tyrant; that the country where this war was carried on near four years, is not of greater extent than the county of Sussex; that the malcontents never exceeded TWO THOUSAND FIVE HUNDRED undisciplined young men; that Lewis the Fourteenth employed TWENTY FIVE THOUSAND regular forces, exclusive of the militia of the country, upon this shocking business, with two Marshals of France at their head, without being able to overcome them, such being the providential difference between fighting in a just or an unjust cause. That the great Marshal Villars, to put an end to the war, found himself compelled to invite Cavallier to a treaty, which they both signed, and which the Marshal soon broke in several of the most material points; and that Cavallier, through his firmness, obtained admittance the King, who heard him patiently, till he mentioned Villars's promises, when the mighty Monarch's pride was so wounded, that he charged him never to mention that treaty upon pain of his highest indignation.

When all these facts, true beyond contradiction, are well weighed, will Administration be so weak, or the officers they employ be so presumptuous to imagine, with TWELVE or FIFTEEN THOUSAND men, most of them averse to the cause they are sent to fight for, that they shall conquer TWO or THREE HUNDRED THOUSAND brave men, trained to arms, all united in defence of their liberties, in an abundant country, of unbounded extent, and where our army in a few months must moulder to nothing, if they attempt to attack them?--This History shows how cautious men should be, when they treat with the servants of a Tyrant on such important concerns, as the Liberties of Mankind.

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"Every instance of deficiency of arms or equipments should be forthwith supplied by the delinquent individual"

2008-03-07T01:01:00.000-07:00

COMMONWEALTH OF MASSACHUSETTS.

GENERAL ORDERS.

HEAD-QUARTERS, BOSTON,
SEPTEMBER 6th, 1814.

THE war between the United States and Great Britain, having lately become more destructive, in consequence of violations of our territory by the forces of the enemy, which continue to menace our cities and villages, the shipping in our harbours and private property on shore; His Excellency the Commander in Chief

ORDERS, The whole of the Militia to hold themselves in readiness to march at a moments warning; with arms, ammunition, and accoutrements, as the laws of the United States, and of this State, require. Every man must likewise be provided with a good knapsack and blanket. Captains of Companies must realize it to be one of their most solemn and imperious duties, to see the law respecting arms and equipments efficaciously executed. But the Commander in Chief relies on the concurring aid of all the General and Field Officers, in encouraging the Company Officers in the discharge of their duty. The Major-Generals and Commanding Officers of Divisions, will give the necessary orders for an immediate inspection of their several Regiments by Companies. Every instance of deficiency of arms or equipments should be forthwith supplied by the delinquent individual, or by the town to which he may belong, agreeably to the requirements of the Militia Law.

The Officers Commanding Regiments, Battalions and Companies of Artillery will pay special attention at this interesting moment to the state of their field pieces, their carriages, and tumbrils; and see that every thing appertaining to them is in the most perfect order for marching and for action; and particularly that suitable horses are always engaged and ready at any moment to be attached to their pieces, that they may be moved to any point required, with celerity. All the Companies of Artillery now to be called into immediate service, besides the requisite supplies of fixed and other ammunition, will be furnished by the Quarter-Master-General with prolonges and bricoles. The Legislature of this State, always proud of its Militia, has been particularly liberal in its Artillery Establishment. And the Commander in Chief promises himself, that, emulating the brilliant example of Knox and his heroic associates in the Artillery of the revolution, they will be equally distinguished for their discipline as soldiers, and for their gallantry in the field.

Under possible events, the Cavalry of the several Divisions, may be in requisition. Every motive, therefore, of love of country, of honor and sympathy for their fellow citizens who may be suffering the perils of war, will prompt them to maintain the most perfect state of preparation and to move, when called to the scene of action, with all the rapidity of which Cavalry is susceptible. The General Officers, and the Field Officers of Cavalry, as well as the Company Officers, will direct their attention to the quality of the horses, and suffer no man to be mounted but upon a horse sound and fit for actual service. A few bad horses may occasion irretrievable disaster.

The Commander in Chief having thus called the attention of all officers and soldiers of the Militia to the observance of their several duties at this eventful crisis, the more effectually to meet impending danger;--

ORDERS, That all the flank Companies, whether of Light Infantry, Grenadiers or Riflemen, of the 1st and 2d Brigades of the 1st Division; two Companies, viz. the one at Andover, and the other at Haverhill, of the 2d Division; all the Companies of the 3d Division, excepting the two Companies in Charlestown; four Companies of the 4th Division; five Companies of the 5th Division; 8 Companies of the 7th Division; and two Companies of the 9th Division, do immediately march to the town of Boston, unless (in the mean time) otherwise directed. Each Company will march to its place of destination by itself without waiting for any other corps.

These Companies when assembled, will be arranged into Regiments or otherwise, as circumstances may dictate, and with the addition of twelve Companies of Artillery, will form the elite, or advance Corps of the Massachusetts Militia. The Field Officers to command the Regiments, and a General Officer to command the whole, will hereafter be designated in general orders. The several Companies of Artillery to be annexed to the advance corps, will be furnished by the following divisions, viz.: Two Companies from the 1st Brigade, and one Company from the 2d Brigade of the 3d Division; four Companies from the 4th Dision; one Company from the 5th Division; and four Companies from the 7th Division.

Besides the above mentioned Companies, the Commander in Chief orders a detachment of sixteen Companies of Infantry to be immediately made from the 4th Division, properly Officered and arranged into two Regiments, which will march to Boston without the least unnecessary delay. Major-General Mattoon is charged with the arrangement of the Regiments.
From the 9th Division the Commander in Chief orders eight Companies of Infantry to be detached properly Officered, formed into a Regiment, and marched to Boston. Major-Generals Mattoon and Whiton will assign Field Officers for the troops to be detached from their respective Divisions; and the Commander in Chief relies on their experience and zeal to carry this order into the most prompt and energetic effect. As soon as the troops shall commence their march each Major-General will give notice of it to the Adjutant-General.

All the troops must be well armed, accoutred and equipped, and provided with ammunition, provisions, knapsacks and blankets as the law requires. The men will be supplied with rations when they arrive at the place of destination, and will receive pay from the time of their being embodied.

The security of the town and harbor of Boston being an object of primary importance, the Commander in Chief, while he wishes to direct the principal energies of the State to the attainment of this end, is solicitous to render the Militia of Boston itself as efficient as possible. With this view he

ORDERS, The Infantry of the 3d Brigade of the 1st Division, commanded by Brigadier General Welles, to be called out by Regiments in rotation, two days successively, for the purpose of improving their discipline already respectable, and of enabling them to practice the higher duties of the field. This order is committed to Brigadier General Welles, whose knowledge in tactics, and animated zeal in the service of his country, must ensure to his exertions the highest effect. The order will be continued in operation until revoked. The flank Companies of this Brigade will be reserved for other service.

The troops called into actual service by this order, will serve three months after they arrive at their ultimate rendezvous, unless sooner discharged.

By His Excellency's Command,
J. BROOKS, Adjutant General.

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"that would not lay down and deliver up their arms"

2008-03-06T14:43:00.000-07:00

An Express
Just arrived from
General WASHINGTON.

Camp at Cambridge, Oct. 24, 1775.

SIR,

THE inclosed information being of the highest importance, I thought it proper to transmit it to you with all dispatch,

I am Sir,
Your obedient servant,
GEORGE WASHINGTON.

"On the Service of the United Colonies.

To the Hon. Nic holas Cooke, Esq; Dep. Gov. of Rhode-Island, Providence.

(Inclosed.)

Falmouth, Monday, 16th Oct. 1775.

THE Canteaux ship of sixteen guns, commanded by Captain Mowat, a large ship, schooner, and a sloop armed, anchored below the town the 17th inst. At 3 o'clock P.M. they weighed and came up, and anchored within gun shot, and immediately Capt. Mowat sent a letter on shore to the town, giving them two hours to move their families out, as he had orders to fire the town. The town immediately chose a committee of three gentlemen, and sent them on board to know the reason of the town's being set on-fire. He returned for answer, that his orders were to set on fire all the sea-port towns between Boston and Halifax, and that he expected New-York was then burnt to ashes. He farther laid, that when he received orders from the Admiral, he desired that he might shew some lavour to the town of Falmouth, which the Admiral granted (I suppose as Capt. Mowat was under particular obligations to some-gentlemen at Falmouth for civilities shewn him when in captivity amongst them) and which savour was to spare the town till 9 o'clock, Wednesday morning, in case we would send him off eight small arms, which the town immediately did.

Wednesday morning being the 18th, the Committee went on board of Capt. Mowat again, in order to save the town; he said he would save the town till he heard from the Admiral, in case we would send off four carriage guns, deliver up all our small arms, ammunition, &c. and send four gentlemen of the town as hostages, which the town would not do. About half past nine in the morning he began to fire from the four armed vessels, and in five minutes set fire to several houses. He continued firing till after dark the same day, which destroyed the largest part of the town. He farther informed the Committee that he should proceed to Portsmouth, and destroy that place also. The foregoing is as near the facts as I am able to remember. Witness my hand.

PEARSON JONES.

Prospect-Hill, Octobet 24. 1775.

SIR,

BY an express that arrived from Falmouth last night,we learn the greatest part of the town is in ashes. The enemy fired about three thousand shot into it, and a large number of carcases and bombs, which set the town on fire, the enemy landed once or twice to set fire to the stores, they lost eight or ten men in the attempt, and had one taken prisoner, the inhabitants got out a very considerable part of their furniture, no person killed or wounded during the whole time of their firing; the enemy produced orders from admiral Graves, to burn all the towns from Boston to Halifax, Capt. Mowat informed the committee at Falmouth, there had arrived orders from England about ten days since, to burn all the sea port towns on the continent, that would not lay down and deliver up their arms, and give hostages for their future good behaviour; he also acquainted them that he expected the city of New-York was in ashes; by these accounts we may learn what we have to expect, I think Newport should be fortified in the best manner it can be, doubtless the enemy will make an attempt to get the stock off the island; provision should be made to defeat them; death and desolation seems to mark their foot steps, fight or be slaves is the American motto, the first is by far the most eligible. In haste I am with esteem, your most obedient humble servant.

NATHANIEL GREEN.

To the Hon. Nicholas Cooke, Esq; in Providence, (per Express.)

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"and private Men, now actually in Arms against His Majesty"

2008-03-06T13:34:00.000-07:00

By His EXCELLENCY Sir WILLIAM HOWE, K. B. General and Commander in Chief, &c. &c. &c.

DECLARATION.

SIR WILLIAM HOWE, regre? {Omitted text, 1w} the Calamities to which many of His Majesty's faithful Subjects are still exposed by the {Omitted text, w} of the Rebellion, and no less desirous of protecting the Innocent, than determined to pursue with the Rigors of War all those whom His Majesty's Forces, in the Course of their Progress, may find in Arms against the King, doth hereby assure the peaceable Inhabitants of the Province of Pennsylvania, the Lower Counties on Delaware, and the Counties of Maryland, on the Eastern Shore of Chesapeak-Bay, that in Order to remove any groundless Apprehensions which may have been raised of their Suffering by Depredations of the Army under His Command, he hath issued the strict Orders to the Troops for the Preservation of Regularity and good Discipline, and has signified that the most exemplary Punishment shall be inflicted upon Those who shall dare to plunder the Property, or molest the Persons of any of His Majesty's {Omitted text, 5w} . {Begin inserted text}will disposed of a subjects{End inserted text}

Security and Protection are likewise extended to all Persons, Inhabitants of the Province and Counties aforesaid, who, not guilty of having assumed legislative or judicial Authority, may have acted illegally in subordinate Stations, and, conscious of their Misconduct, been induced to leave their Dwellings, provided such Persons do forthwith return, and remain peaceably at their usual Places of Abode.

Considering moreover, that many Officers and private Men, now actually in Arms against His Majesty, may be willing to relinquish the Part they have taken in this Rebellion, and return to their due Allegiance: Sir WILLIAM HOWE doth therefore promise a free and general Pardon to all such Officers and private Men, {Omitted text, 1w} shall voluntarily come and Surrender themselves to any Detachment of His Majesty's Forces, before the Day on which it shall be notified that the said Indulgence is to be discontinued.

GIVEN under my Hand, at Head-Quarters of the Army, the 27th Day of August, 1777.

W. HOWE.

By His EXCELLENCY's Command, Robert Mackenzie, Sec'ry

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"Neither are the Inhabitants to be stopped or impeded . . . unless they are armed"

2008-03-05T16:43:00.000-07:00

ORDERS

To be observed during the Time of Fires by the Inhabints.

UPON the Discovery of a Fire, Notice is to be given as usual, by the Ringing of Bells, and the Cry of Fire in the Streets, at which Time the Regiments will immediately get under Arms on their regimental Parades, and wait there for further Orders, unless when a Fire may break out in the Quarters of a Regiment; and in that Case the Corps is to quit the Place, to make Room for the Inhabitants who are to repair to the Fire with all the Buckets in their Possession, to give their Assistance, every House-holder putting up a Light in a Front Window; a Caution to be observed upon all Alarms whatever.

All Persons failing so to do will be punished in a most examplary Manner.

The Bells are not to ring for the Alarm more than one Quarter of an Hour.

The Fire Wards, the Engine Masters, and Men acting under them, are not to be interrupted by any Officer, or Soldier in the Execution of their Duty--The Firewards, known by red painted Staffs with Heads of Brass, are to have the whole Management and Conduct of the Engines and People assembled to extinguish a Fire.

Neither are the Inhabitants to be stopped or impeded in Time of Fires by the Military unless they are armed, in which Case they are to be taken into Custody.

All the Associated Companies, from the essential Service they may be of, are to attend the Fires without Arms: the Royal North British Volunteers excepted, who have been already appointed to a particular Duty with Arms.

Women belonging to the Army will not be allowed to be present at any Fires that may happen.
A Premium of twenty Shillings Sterling will be given to the Men who bring the first Engine, and work it at the Fire.

The Firewards are to take into their Possession all Buckets found in vacated Houses, and to distribute them among the residing Inhabitants.

GIVEN at Head-Quarters in Boston, this eighteenth Day of November, 1775.

WILLIAM HOWE.