2aguy
Diamond Member
- Jul 19, 2014
- 112,334
- 52,581
- 2,290
David Kopel is an expert on gun issues….here he details his debate with an actual appeals court judge on a podcast. You can see that the judge just does not care about the actual history or law concerning carrying guns for self defense….Kopel handily wrecks each of his hollow arguments….
There is a link to the full debate on the podcast…
Early laws
Luttig: Early American laws generally forbade gun carrying. This history is so clear that it shows that courts should not interfere with legislative limits on bearing arms.
Kopel: Early laws did restrict carrying by slaves and by Indians. For free persons in the colonial polity, the only law that supports Judge Luttig's claim is the 1686 statute from East Jersey that banned concealed carry. That law didn't survive the consolidation of the colonies of East Jersey and West Jersey into New Jersey.
Luttig: Three different types of laws broadly forbade carrying: England's 1328 Statute of Northampton, similar state statutes, and surety of the peace statutes.
Kopel: There isn't a single American case where anyone peaceably bearing arms was prosecuted under these laws. With the exception of two black men in Boston and two in D.C. who were sued under surety statutes; one of the four men could afford to appeal, and when he did, the city attorney dropped the case.
———
What did the 1328 Statute of Northampton actually require?
Luttig: The statute was a wide ban on carrying arms and remained so in colonial America, and thereafter in American law:
Kopel: Certainly not after 1686, when the statute was authoritatively construed by Sir John Knight's Case to apply only to carrying that was "in malo animo" (with bad intent). As for what the meaning might have been in the 1300s or 1400s, the edicts of tyrannical kings do not define the scope of American rights centuries later. Indeed, the 1689 English Bill of Rights repudiated previous abuses by monarchs, and guaranteed the English right to arms. As stated in Edward Christian's founding-era edition of Blackstone, "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game." (Since commoners in England were not allowed to hunt.) Every post-1686 English case on the Statute of Northampton construed the Statute not to apply to peaceable carry. The North Carolina Supreme Court in 1843's State v. Huntleyauthoritatively construed Northampton's common law analogue to mean that: "the carrying of a gun per se constitutes no offence."
——————
Pandora's box
Luttig: If the Court rules for plaintiffs, it will open up a Pandora's box. The Court will be forced to hear a multitude of follow-up cases deciding what areas are "sensitive places" (Heller's language) for where licensed carry can be prohibited.
There is a link to the full debate on the podcast…
Early laws
Luttig: Early American laws generally forbade gun carrying. This history is so clear that it shows that courts should not interfere with legislative limits on bearing arms.
Kopel: Early laws did restrict carrying by slaves and by Indians. For free persons in the colonial polity, the only law that supports Judge Luttig's claim is the 1686 statute from East Jersey that banned concealed carry. That law didn't survive the consolidation of the colonies of East Jersey and West Jersey into New Jersey.
Luttig: Three different types of laws broadly forbade carrying: England's 1328 Statute of Northampton, similar state statutes, and surety of the peace statutes.
Kopel: There isn't a single American case where anyone peaceably bearing arms was prosecuted under these laws. With the exception of two black men in Boston and two in D.C. who were sued under surety statutes; one of the four men could afford to appeal, and when he did, the city attorney dropped the case.
———
What did the 1328 Statute of Northampton actually require?
Luttig: The statute was a wide ban on carrying arms and remained so in colonial America, and thereafter in American law:
Kopel: Certainly not after 1686, when the statute was authoritatively construed by Sir John Knight's Case to apply only to carrying that was "in malo animo" (with bad intent). As for what the meaning might have been in the 1300s or 1400s, the edicts of tyrannical kings do not define the scope of American rights centuries later. Indeed, the 1689 English Bill of Rights repudiated previous abuses by monarchs, and guaranteed the English right to arms. As stated in Edward Christian's founding-era edition of Blackstone, "every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game." (Since commoners in England were not allowed to hunt.) Every post-1686 English case on the Statute of Northampton construed the Statute not to apply to peaceable carry. The North Carolina Supreme Court in 1843's State v. Huntleyauthoritatively construed Northampton's common law analogue to mean that: "the carrying of a gun per se constitutes no offence."
——————
Pandora's box
Luttig: If the Court rules for plaintiffs, it will open up a Pandora's box. The Court will be forced to hear a multitude of follow-up cases deciding what areas are "sensitive places" (Heller's language) for where licensed carry can be prohibited.
Kopel: Courts in the 42 states where the right to bear arms is presently enforced have been doing so for years. There are fewer than two dozen reported cases thus far on "sensitive places," and courts have well been able to handle them. Anytime courts get serious about enforcing a constitutional right, there will inevitably be some grey areas that need to be addressed. For example, enforcement of the First Amendment "right of the people peaceably to assemble" led to cases about certain areas where assemblies could be prohibited or specially regulated. Deciding such cases did not impose any great burden on the judiciary.Luttig versus Kopel on the right to bear arms
Debate from the National Constitution Center on the impending Supreme Court case
reason.com
Last edited: