Archive for the 'Second Amendment' Category



How a medieval English law affects the US gun control debate

BY Herschel Smith
1 month ago

BBC.

The case – which stems from a New York legal battle – challenges a state law that requires that gun users who want a concealed carry permit first prove they have a valid reason.

To help them determine how broad the rights of America’s many gun owners go, the country’s nine supreme court judges are also looking back to the 1328 Statute of Northampton, which dates back to the reign of Edward III.

[ … ]

In a separate 2008 Supreme Court case that struck down strict Washington DC handgun laws, the late Justice Antonin Scalia argued that the Second Amendment to the US constitution codified “a pre-existing right” from England.

He added that by the time the United States was founded in 1776, the “right to have arms had become fundamental for English subjects.”

Some historians, however, have disagreed with that assessment, noting that by the late 1200s, English authorities had passed laws restricting the right to carry weapons while traveling in public or in London.

The later 1328 Statute of Northampton – which predates the first recorded use of a firearm in Europe by several decades – declared that nobody “except the King’s servants in his presence” will “go nor ride armed by night nor by day” in fairs, markets “nor in no part elsewhere”.

Lawyers for New York, for their part, have written to the Supreme Court that from the Middle Ages onward, laws “broadly restricted the public carrying of firearms and other deadly weapons.”

Saul Cornell, an American history professor at Fordham University, said he believes it is “beyond ironic” that US gun advocates would look to England as the foundation of their view on gun rights.

“England was a super hierarchical society, and one in which the King has a monopoly of force and violence,” Mr Cornell told the BBC. “I’m not sure how anyone could conclude that this was a society that nourishes this robust, libertarian view of arms.”

“It just doesn’t make any sense whatsoever to any who really understands the complexity of English history,” he added. “Obviously, that doesn’t include many people in the gun rights community or many people sitting on some courts in America.”

Ah, we’re to the crux of the matter, yes?  So let’s help explain this to the article author and the Fordham professor.

As we observed earlier,

Briefly, I couldn’t care less what English common law says about anything.  The colonists fought a war over many things, including gun control (see Kopel, “How the British Gun Control Program Precipitated the American Revolution“).

The colonists fought a war against the government to overthrow tyranny.  It’s ridiculous and sophomoric to pretend that they ever assumed that men wouldn’t engage in RKBA, or that they wouldn’t turn those guns against tyranny.

Presuppositions.  This is the stuff of life.  The 2A makes no sense unless seen in the light of the lives of the men who wrote it and their own assumptions, value judgments and world and life views.

Any lawyer who begins with, discusses or ends with English common law isn’t worth his weight in salt.

But you see, most lawyers aren’t worth their weight in salt, or they are tipping their hat to the ruling elite inside the beltway.  As for the judges and justices, look at just how badly they got it wrong.  Consider Scalia’s own words, and after reading them again, don’t ever again laud the ridiculous Heller decision or Scalia as it pertains to rights.

In a separate 2008 Supreme Court case that struck down strict Washington DC handgun laws, the late Justice Antonin Scalia argued that the Second Amendment to the US constitution codified “a pre-existing right” from England.

He added that by the time the United States was founded in 1776, the “right to have arms had become fundamental for English subjects.”

The professor from Fordham is correct in that “England was a super hierarchical society, and one in which the King has a monopoly of force and violence.”  Not only was Scalia wrong in this sentiment or analysis, he founds the RKBA solely in English common law after the founders waged a war against England, with that war precipitated by the very thing under debate, i.e., gun control.

It does indeed boggle the mind.  But not really so much when one considers that the Heller decision was all about making the RKBA semi-palatable for the nobility inside the beltway.

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

We must keep the chattering class and the wine and cheese crowd happy at all costs.

The secret that the Fordham professor and the author of this piece doesn’t understand is that most Americans see the 2A as a covenant, not a source of rights.  Most gun owners see their RKBA as given by God, not bestowed by the state.

Arguing the way these lawyers have, and judging the way even Scalia did, is not representative of America.  So the professor is utterly wrong when he says “Obviously, that doesn’t include many people in the gun rights community …”

Oh my.  He may correctly observe that of the legal community who is hell bent on pleasing their masters, but neither the author nor the professor are very much in touch with gun blogs, gun web sites, discussion threads (like reddit/Firearms or AR15.com), or even perhaps just knowing gun owners throughout flyover country.  We must be careful to distinguish between those who believe that we need the king’s permission to hunt the royal forests (because he owns the land), and we need the constable’s permission to carry a weapon (because he owns the roads), versus those who see such demands as a breakage of covenant leading to divorce.  We’ve been through divorce before, and it’s ugly.

What God grants cannot be removed by man, for it is as immutable as His nature.  This belief is hard wired into the American soul.  If the “nobility” presses this too far, these are lessons they may [re]learn the hardest of ways.

Supreme Court 2A Arguments After Action Analysis

BY Herschel Smith
1 month ago

This comes courtesy of TTAG.

After listening to all of this, I think most of it is right.  Roberts will seek to do the thing that pisses off the fewest people, Kavanaugh seems to be solid on this, and Barrett might be the one who makes or breaks this.

Roberts and Barrett seem to be most concerned about “sensitive” places, and will likely try to circumscribe the RKBA that way.  They seem to be attempting to let just a little liberty seep out without angering the nobility ensconced inside the beltway.

Can New Yorkers carry guns? A 700 year-old law may inform Supreme Court’s Second Amendment decision

BY Herschel Smith
1 month ago

Retarded.

When the Supreme Court hears oral arguments Wednesday in a closely watched guns case, the discussion won’t start with the last landmark ruling on firearms from 2010, or even with the ratification of the Second Amendment in 1791.

Instead, attorneys on both sides will likely reach back to a 700-year-old English law – and a debate over the influence it had on the framing of the Constitution.

[ … ]

That has drawn both sides of the case, New York State Rifle & Pistol Association v. Bruen, into an intense battle over a statute from 1328 that some historians say informed the Framers’ views of when people may carry their guns in public. The Statute of Northampton regulated the carrying of “arms” in public places.

Briefly, I couldn’t care less what English common law says about anything.  The colonists fought a war over many things, including gun control (see Kopel, “How the British Gun Control Program Precipitated the American Revolution“).

The colonists fought a war against the government to overthrow tyranny.  It’s ridiculous and sophomoric to pretend that they ever assumed that men wouldn’t engage in RKBA, or that they wouldn’t turn those guns against tyranny.

Presuppositions.  This is the stuff of life.  The 2A makes no sense unless seen in the light of the lives of the men who wrote it and their own assumptions, value judgments and world and life views.

Any lawyer who begins with, discusses or ends with English common law isn’t worth his weight in salt.

What Does The Firearms Policy Coalition Have To Do With The Texas Abortion Law?

BY Herschel Smith
1 month ago

A Lot.

Kavanaugh pressed Texas Solicitor General Judd Stone on the prospect that the legal machinery of the new abortion law could be used against other freedoms, referring to a brief filed by a gun rights group.

“We can assume that this will be across the board, equally applicable as the Firearms Policy Coalition says, to all constitutional rights?” Kavanaugh said, later asking Texas’ lawyer to imagine a law that let anyone sue a person for using an AR-15 rifle and hold them liable for $1 million.

Did they say something like that?  Oh to be sure, they did.

The importance of this petition is not about any debate over the existence or scope of any constitutional right to abortion. Indeed, Amicus takes no position on such questions, which are before this Court in other cases. Rather, this case is about access to the means of enforcing individual constitutional rights, as determined by this Court’s cases, and protecting against their infringement, regardless of the particular right involved. Texas’s novel scheme for infringing upon and chilling the exercise of the right to abortion under this Court’s Roe and Casey decisions while seeking to evade judicial review, if allowed to stand, could and would just as easily be applied to other  constitutional rights. That result is wholly anathema to our constitutional scheme, regardless what one thinks of abortion or, indeed, of any other hotly debated constitutional right, such as the right to keep and bear arms.

See also here.

But you see, there is no constitutional right to destroy a company because someone used their product to injure others, any more than there’s a constitutional right to kill babies.  Those things are just made up out of whole cloth.

FPC is scared that 2A rights will be violated if we disallow the killing of babies.  But if you make your bed with the devil, don’t be surprised when he kills you.  There is no basis for the belief that this argument won’t be used to kill the Texas law and then summarily ignored when a state or individual bankrupts a firearms company (with the black robed tyrants ignoring the case).

Justice has been sacrificed for expediency, because in the eyes of the FPC, the only thing standing in the way of the obliteration of the 2A is SCOTUS interpretation.  Then where are you?

To me, the same place we were.  God grants a right, man does not.  Breakage of the covenant of the 2A means that the government is illegitimate and must be divorced, not that we lose a right.

The FPC could have done a much better job with their brief.  They’re on the losing side of one issue, and they may end up on the losing side of yet another.

Fear is a vicious monster and should not be tolerated.

About That Second Amendment

BY Herschel Smith
1 month, 1 week ago

Seen in the comments at David’s WoG.

‘The Second Amendment states explicitly that it exists to protect “a well regulated Militia,” ‘

Ah, no!

What it says is that RKBA shall not be infringed.

In a prefatory clause it indicates ONE of the reasons why that must be true.

https://www.mic.com/articles/24210/gun-control-myth-the-second-amendment-makes-clear-guns-aren-t-just-for-the-military

Wishing it were otherwise, and trying to use SCOTUS lack of rulings on RKBA issues to make that wish come true, does not make it true.

What is rarely discussed by outfits such as Vox, is that for much of the Second Amendment’s existence, the Right to Keep and Bear Arms was not under ceaseless attack, so there was no reason for SCOTUS to get involved.

But that is not in alignment of Vox’s version of the truth.

But as noted leftist and anti gun Senator Daniel Patrick Moynihan once said:

“You are entitled to your opinion. But you are not entitled to your own facts.”

Yes, yes, yes, yes, yes, YES.  This.  This.  And a thousand times yes.

I’ve pointed out before that firearms ownership was ubiquitous in the states.  The colonists had a RKBA because God granted it.  This is an axiomatic irreducible.  It is the predicate upon which everything else is based.  Without this presupposition, the second amendment makes no sense.

The framers needed only one reason to tell the FedGov to stay out of their business, and this was their main one.  The second amendment is not a treatise on the RKBA.  The second amendment is the states telling the FedGov not to interfere with the militia.  The militia brought their own armaments.

Thus, God gave the right to own firearms for hunting and feeding the family, just like he gave men the right to use rocks and spears and bow and arrow to do the same in ancient history.  If you want firearms for this purpose, God protects that right.  It is assumed in the second amendment, which doesn’t speak to hunting.

If you want cannon to protect your ship’s cargo, God gave you that right in the Holy Writ.  The second amendment doesn’t speak to cannon aboard ships of trade because it doesn’t have to.  It is assumed.

If you want to give your son a rifle to carry with him to school like the founders did for hunting and plinking and learning to be a man, that’s within your rights too, because God says so.

If you are 90 years old and unable to form with the militia but want a machine gun to defend your home, that’s within your rights too because God says so.

If you want firearms for 3-gun competition because you enjoy it, that’s within your rights because God says so, totally apart from forming with the militia.

Rights and duties are granted and given by the Almighty, the sovereign maker of the universe.  The second amendment is the states telling the FedGov to back off ever trying to regulate said rights because what’s at risk is the capability overthrow tyranny.

That’s all the founders had to say.  The second amendment is about tyranny.  Not hunting, not competition, not self defense, not pleasure plinking.  Those things are assumed, presupposed, and irreducible.  They are the basis for everything else – because God says so.

Very Detailed Analysis Of The Preliminaries Of The Kyle Rittenhouse Case

BY Herschel Smith
1 month, 1 week ago

Found at Legal Insurrection.

This is a long read.  But if you’re interested in following the goings-on in his case, this is the longest, most detailed and best analysis I’ve found.

The case hasn’t started yet, but in effect, it has because these decisions will make or break the prosecution’s assault on Kyle.

UPDATE: Dean Weingarten has another analysis.

Our Gun Rights Are God Given

BY Herschel Smith
1 month, 1 week ago

Jeff Knox at Ammoland.

But then Clement says this: “The state takes its revisionism so far as to claim there is no example in all Anglo American history of the carry rights petitioners seek. In fact, at least 43 states allow just that, while, as in Heller, only a few jurisdictions follow New York’s lead of presumptively denying a right that the Constitution guarantees to all…”

My complaint is that, if indeed “the Constitution guarantees to all,” this right, (which should be acknowledged to preexist the Constitution), then exercise of the right is not something which any state does, or can, “allow.” Those 43 states do not “allow” the exercise of the right to carry a handgun outside the home for self-defense. They recognize the right. They honor the right. They have laws that specifically avoid infringing on the right. But they most certainly don’t “allow” the exercise of the right.

[ … ]

I believe Clement received more credit in that case than was really due him though, as the case was built and brought by the Second Amendment Foundation, and argued by Alan Gura, who was also the lead attorney for Heller. In the eleventh hour, the NRA petitioned for and received permission to join the McDonald case, and the 30 minutes for oral arguments was divided down the middle. With Gura first arguing that the Court should apply the Second Amendment to the states under a proper reading of the 13th Amendment, correcting over a century of bad precedents going back to the post-Civil War Court. Clement, in his turn, argued the more conservative line, calling for the Court to apply the Second Amendment as a fundamental right under the Due Process Clause of the Fourteenth Amendment.

Because the Court chose to go with Clement’s remedy, rather than Gura’s, Clement was the one who got much of the credit, with some claiming that he “rescued” the case from Gura. I think that’s too generous to Clement, and far too dismissive of Gura. McDonald, like Heller, was Gura’s case. He put it together, led it through the courts, and convinced the Supreme Court to grant certiorari and hear the case. His push for the Court to reverse precedents, which virtually all constitutional scholars agree are erroneous and flawed, was worth trying. Gura knew that it was a long shot, so he had always taken a dual-pronged approach, arguing that the Court could either apply the Second Amendment to the states via a correct reading of the Thirteenth Amendment. Or they could take the less drastic route of accomplishing the same thing via the “incorporation doctrine” and the Fourteenth Amendment. Had the NRA and Clement not joined the case, Gura would certainly have argued both options during oral arguments – as he did in his briefs – and the Court would have reached the same conclusion they eventually did, via the “incorporation doctrine.”

Every time I’ve written on the Heller case, I’ve said it was a weak decision.  And I’ve always been right.  Now, this does not exonerate the idiots who wrote it for writing it the way they did (leaving open the question of whether the constitution recognizes the right to bear arms outside the home).  In fact it’s worse than that.  The Heller decision was a tip of the hat to the pampered beltway elitists and chattering class.

Heller offers a Second Amendment cleaned up so that it can safely be brought into the homes of affluent Washington suburbanites who would never dream of resistance-they have too much sunk into the system–but who might own a gun to protect themselves from the private dangers that, they believe, stalk around their doors at night. Scalia commonly touts his own judicial courage, his willingness to read the Constitution as it stands and let the chips fall where they may. But Heller is noteworthy for its cowardice.

So the Supreme Court bears blame, but then so does the lawyer who argued the way he did (Clement).  Rights come from the Almighty.  Any failure to ensconce our duties and rights clearly in His law-word insults the creator of the universe.

Ironically, I was just reading this discussion thread at reddit/Firearms where so-called Fudds are lampooned for their positions, e.g., “You guys with your AR-15s are always pushing things.  You’re going to make us all lose our rights.”  Listen. coward.  Your rights come from God, not man.  You cannot lose what God has granted.

All aspects and manifestations of God’s economy – Family, Church and State – must bend the knee to King Jesus, or they will not survive.  They will perish from the earth, and then suffer in eternity.

Does Constitutional Carry Stand A Chance In Florida?

BY Herschel Smith
2 months ago

News from Florida.

Some top Florida Republican lawmakers have now said they would support constitutional carry legislation in the upcoming session.

The policy would allow all legal gun owners to carry firearms without a concealed weapons license.

The constitutional carry legislation was filed by the Legislature’s most outspoken conservative member, Rep. Anthony Sabatini.

“Our very liberal Republican Speaker Chris Sprowls has gotten tens of thousands of emails from gun groups,” said Sabatini.

The policy is split into two bills.

The first would allow gun owners to carry concealed weapons without a license.

“You don’t have to go ask the government for permission,” said Sabatini.

The second would allow for open carry.

“You shouldn’t have the duty to hide your firearm if you’ve done nothing wrong,” said Sabatini.

Eskamani said she’s doubtful Sabatini’s bills will get a hearing, due to his strained relationship with the House speaker.

“Sabatini does not have a lot of leverage within the chamber,” said Eskamani.

But recently, top brass in the Senate indicated they would support constitutional carry legislation, including Senate Majority Leader Debbie Mayfield.

“I support constitutional carry. That is one of the things that we will probably be looking at this session because it is important,” said Mayfield in a legislative delegation meeting last week.

Florida GOP Chair and State Sen. Joe Gruters said he might support constitutional carry, but doesn’t want to see assault weapons openly carried on beaches.

“Because I think that would adversely impact Florida’s tourism economy,” said Gruters.

While there seems to be some support for constitutional carry legislation in the Senate, a bill hasn’t yet been filed in the chamber.

I predict it won’t go anywhere this session.  Florida has a horrible history on gun control.  But it will eventually pass in coming sessions with enough effort.

You know what would help the case?  If Governor Ron DeSantis went on record for his support for the measure, and even demanded a bill be brought to his desk for approval before any other bill would be considered by the governor.

I also predict he won’t do that.

South Carolina Tyrants Self Identify

BY Herschel Smith
2 months ago

News from South Carolina.

An ordinance restricting the open carry of firearms passed its first reading with the Anderson City Council on Monday night.

The ordinance would prohibit residents from openly carrying firearms during events that take place on public property. These events include protests, according to the officials.

The background for the ordinance states, “While the City recognizes and appreciates the First and Second Amendment rights of its citizens and visitors, the presence of firearms at protests can serve to escalate tensions.”

The council will discuss the amendment again before it becomes a part of the law.

There’s always an excuse, isn’t there?

“While the City recognizes and appreciates the First and Second Amendment rights of its citizens …”  No, of course it doesn’t.  Otherwise, they wouldn’t be debating the prohibition of open carry at events.  They always have to declare their support for your rights while they refuse to recognized them, don’t they?

As for the reason – “the presence of firearms at protests can serve to escalate tensions?”  They don’t believe that, otherwise they would be trying to ban concealed carry, because there is no difference between concealed and open carry except for the fact that the firearm can be seen with open carry.  The reality of the firearm is still there.

The good thing about the declaration of tyranny among the cities (Spartanburg, Greenville, Charleston, Columbia, and now Anderson have made it clear they intend to ban open carry) is that the tyrants self identify.

That’s good.  It gives patriots information on who to cast out of office next.

2A Brief

BY Herschel Smith
2 months ago

David Kopel writes at Reason explaining the 2A brief filed with the SCOTUS in the New York case.  It’s very good, but this part is worth lifting.

The king ordered London hostelers to tell their guests not to carry arms in London. According to the Ninth Circuit, this shows that arms carry restrictions “permeated public life.” To the contrary, the Feast of St. Thomas decree presumes that travelers will be carrying arms and will expect to continue carrying in London. The king ordered the hostelers to tell the visitors to pause their usual practices.

[ … ]

Whatever the English Bill of Rights protected, it was not good enough for Americans. James Madison’s notes for his speech introducing the Bill of Rights in Congress show that he regarded much of the English Bill of Rights as deficient, including the Protestants-only provision of the right to arms. St. George Tucker, William Rawle (author of an influential 1825 treatise on American constitutional law), and Joseph Story all denounced the English right to arms as feeble and as far inferior to the Second Amendment.

The second amendment also presumes that free men will bear arms, and in order to understand it, we must use that as a working assumption.  Nothing else will do.  The bearing of arms in colonial America was ubiquitous.

And yes, clearly, the founders felt the rights understood under English common law were inferior to what they understood under God.  Thus, the second amendment was crafted to ensure that the federal government stayed out of the business of dictating when or where to bear arms, or what kind of arms to bear.

How far we’ve fallen.


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