A debate on carrying guns…how an actual judge jumps through hoops to deny the Right to bear arms

[2aguy]

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.
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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."
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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

 

[2aguy]

David Kopel and his Amicus brief on concealed carry laws….

ARGUMENT

The Second Amendment’s text protects the right to carry arms.

A. The text places “bear” on equal footing with “keep.”
The Second Amendment protects both the right to keep and the right to bear arms. U.S. CONST. amend. II. Rather than creating a hierarchy, the text protects both rights equally.

Thus, District of Columbia v. Heller held that the Second Amendment “guarantee the individual right to possess and carry weapons in case of confrontation.” 554 U.S. 570, 592 (2008) (emphasis added). Just as law-abiding citizens cannot be pre- vented from possessing arms, they cannot be prevented from carrying arms.

B. Contemporary dictionaries defined “bear” to mean “carry.”
Thomas Sheridan defined “To Bear” as “To Carry.” Thomas Sheridan, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1796) (unpaginated).2 Sam- uel Johnson defined “Bear” as “To convey or carry.” Samuel Johnson, 1 DICTIONARY OF THE ENGLISH LAN- GUAGE (4th ed. 1773) (unpaginated).3 The first diction- ary of American English defined “Bear” as “To Carry” and “To wear,” Noah Webster, 1 AMERICAN DICTIONARY
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According to Blackstone, “the right of having and using arms for self-preservation and defence” is part of “the natural right of resistance and self-preservation.” 1 William Blackstone, COMMENTARIES 139, 140 (1765). Thus, Edward Christian’s founding-era edition of Blackstone stated, “every one is at liberty to keep or carry a gun, if he does not use it for the destruction of game.” 2 William Blackstone, COMMENTARIES 412 n.2 (Edward Christian ed., 12th ed. 1794).
Few, if any, cases in colonial America were as well- known as the Boston Massacre trial. The prosecution and the defense agreed that Bostonians had the right to carry defensive arms. The prosecution explained that because of the Redcoats’ behavior in Boston, even “the most peaceable” Bostonians “found it necessary to arm themselves with heavy Walking Sticks or Weapons of Defence when they went abroad.” 3 John Adams, LEGAL PAPERS OF JOHN ADAMS 274 (Wroth & Zobel eds., 1965). In the prosecution’s view, “every man . . . had a right . . . to defend himself if attacked.” Id. at 149.
Defense
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. Publicly carrying arms was common in early American history.
A. The right of law-abiding citizens to carry arms in public was largely unre- stricted throughout the colonial and founding eras.
“The law of Nature and of Nations authorize the right of carrying arms for self defence, by sea as well as by land,” declared Rep. Harrison Gray Otis in 1798, “and no law of the United States has ever prohibited to our citizens the exercise of this right.” Letter from the Hon. Harrison G. Otis . . . for Petitioning Congress, Against Permitting Merchant Vessels to Arm 11 (Apr. 1798).
The Young court thought that “[t]he colonists shared the English concern that the mere presence of firearms in the public square presented a danger to the community.” 992 F.3d at 794. But the right to carry arms was never prohibited in any colony or state during the colonial or founding eras, and was only rarely restricted. Massachusetts and New Hampshire had laws against aggressive carry. Virginia in the late seventeenth century acknowledged the right to carry but forbade armed assemblies. Around the same time, the short-lived colony of East Jersey briefly restricted concealed carry

https://www.supremecourt.gov/DocketPDF/20/20-843/183844/20210713180558628_20-843-Law%20Professors-Amicus%20Brief.pdf

 

[JGalt]

Fuck that judge.



Disclaimer: This should in no way be construed as an endorsement for violence in any way, shape or form.

 

[2aguy]

But case law?

Kentucky’s 1813 concealed carry ban was ruled unconstitutional in Bliss v. Commonwealth—the case decided closest to the founding—where the highest court of Kentucky held that a prohibition on either concealed or open carry violates the right to bear arms. 12 Ky. 90 (1822); see Heller, 554 U.S. at 585 & n.9. “n principle, there is no difference between a law prohib- iting 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.” Bliss, 12 Ky. at 92.
The Alabama Supreme Court upheld a concealed carry ban in State v. Reid in 1840, declaring that the legislature had “the right to enact laws in regard to the manner in which arms shall be borne . . . as may be dictated by the safety of the people and the advance- ment of public morals.” 1 Ala. 612, 616 (1840); see Heller, 554 U.S. at 585 & n.9, 629. The court held that bearing arms in general could not be forbidden:


We do not desire to be understood as main- taining, that in regulating the manner of bear- ing arms, the authority of the Legislature has no other limit than its own discretion. A stat- ute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.
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few years later, in Nunn—which Heller praised as having “perfectly captured the way in which the op- erative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continu- ity with the English right,” 554 U.S. at 612—the Geor- gia Supreme Court followed Reid’s reasoning in upholding a prohibition on concealed carry while strik- ing a restriction on open carry. The concealed carry ban “is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence.” Nunn, 1 Ga. at 251; accord Stockdale v. State, 32 Ga. 225, 227 (1861) (To prohibit both concealed and open carry “would be to prohibit the bearing of those arms alto- gether, and to bring the Act within the decision in Nunn’s case.”).
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Of the cases relied on by Heller, only State v. Chan- dler indicated that concealed carry was not protected by the right to bear arms, declaring that open carry “is the right guaranteed by the Constitution of the United States.” 5 La. Ann. 489, 490 (1850); see Heller, 554 U.S. at 585 & n.9, 613, 626. Yet even Chandler was later in- terpreted by the Louisiana Supreme Court as “prohib- iting only a particular mode of bearing arms which is found dangerous to the peace of society.” State v. Jumel, 13 La. Ann. 399, 400 (1858) (emphasis in original). Like the other cases, Chandler stands for the proposition that carry by lawful citizens cannot be prohibited.

 

[miketx]

Fuck that judge.



Disclaimer: This should in no way be construed as an endorsement for violence in any way, shape or form.

But, fucking is sometimes violent!