From: [m--nl--y] at [corpcomm.net] (Jay)
Newsgroups: talk.politics.guns
Subject: Re: States with less gun control, have le
Date: Thu, 30 May 1996 03:53:08 GMT

On Wed, 29 May 1996 02:16:15 GMT, [e--h--a] at [eskimo.com]  (Enturbulated)
wrote:


>    the common defense.  Aymette v. State, 2 Humphreys (Tenn.)  154, 158.
Pim, as long as you are posting LESSER court rulings, read these:

   Those who are uninformed will tell you that the Supreme
Court has "upheld" certain gun control laws enacted at
local and state levels.   This is patently untrue.  The
high Court has addressed the Second Amendment in only 5
cases, which I will enumerate.  It has refused to hear a
number of cases, but the Court has always held that its
refusal to hear a case should not carry weight one way or
another, for it may do so for any number of reasons.  Here
are the actual cases on record:

1.  Dred Scott v. Sandford (1856): Justice Taney wrote that
one of the rights of citizens, "which the courts would be
bound to maintain and enforce," was the right "to keep and
carry arms wherever they went."
2.  Presser v. Illinois (1886): The court, addressing
militia duty, said "...the states cannot prohibit the
people from keeping and bearing arms so as to deprive the
United States of their rightful resource...and disable the
people from performing their duty to the general
government."
3.  Patsone v. Pennsylvania (1914): Justice Holmes wrote
that although a state, having prohibited a resident alien
from hunting the state's wild game, could therefore
prohibit possession of HUNTING firearms, nevertheless, "The
prohibition does not extend to weapons such as pistols that
may be supposed to be needed occasionally for self-
defense."
4.  U.S. v. Miller (1939): The high Court, acknowledging
that the militia consisted of all able-bodied males, added
that when called to duty, "these men were expected to
appear bearing arms supplied by themselves and of the kind
in common use at the time."  The court reaffirmed that the
arms protected to be kept and carried by the people were
those with a relationship to military usage.
5.  U.S. vs. Verdugo-Urquidez (1990):  Chief Justice
Rehnquist wrote that the term "the people" as used
explicitly in the Second and other parts of the
Constitution, means the entire general populace that makes
up our "national community," thus reaffirming the people's
right to arms as an individual, rather than a collective,
or militia-only, right.

Quotes from decisions made by lower courts on the Second Amendment,
which have NOT been challenged in any higher court.

1. State v. Blocker, 291 Or. 255, P.2d (1981). "The statute is
written as a total proscription of the mere possession of certain
weapons, and that mere possession, insofar as a billy is concerned,
is constitutionally protected...In these circumstances, we conclude
that it is proper for us to consider the defendant's 'overbreadth'
attack to mean that the statute swept so broadly as to infringe
rights that it could not reach, which in the setting means the
right to possess arms..."

2. State vs. Kessler, 289 Or 359, 614 P.2d 94, at 95, at 98 (1980). 
"We are not unmindful that there is  current controversy over the
wisdom of a right to bear arms, and that the original motivations
for such a provision might not seem compelling if debated as a new
issue.  Our task, however, in construing a constitutional provision
is to respect the principles given the status of constitutional
guarantees and limitations by the drafters; it is not to abandon
these principles when this fits the needs of the
moment...Therefore, the term "arms" as used by the drafters of the
constitutions probably was intended to include those weapons used
by settlers for both personal and military defense.  The term
'arms' was not limited to firearms, but included several hand-
carried weapons commonly used for defense.  The term 'arms' would
not have included cannon or other heavy ordnance not kept by
militiamen or private citizens."

3.  Motley v. Kellog, 409 N.E.2d 1207, at 1210 (Ind. App. 1980)
(motion to transfer denied 1-27-81):  "Not making applications
available at the chief's office effectively denied members of the
community the opportunity to obtain a gun permit and bear arms for
their self-defense."

4. Schuber v. DeBard, 398 N.S. 2d 1339, at 1341 (Ind. App 1980)
(motion to transfer denied 8-28-1980):  "We think it clear that our
constitution provides our citizenry the right to bear arms for
their self-defense." 

5. Taylor v. McNeal, 523 S.W.2d 148, at 150 (Mo. App 1975) "The
pistols in question are not contraband...every citizen has the
right to keep and bear arms in defense of his home, person, and
property..."

6. City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744, at 745
(en banc 1972):  "As an example we note that this ordinance would
prohibit gunsmiths, pawnbrokers and sporting goods stores from
carrying on a substantial part of their business.  Also, the
ordinance appears to prohibit individuals from transporting guns to
and from such places of business.  Furthermore, it makes it
unlawful for a person to possess a firearm in a vehicle or in a
place of business for the purpose of self-defense.  Several of
these activities are constitutionally protected..."

7. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737, at 738
(NM App. 1971):  "It is our opinion that an ordinance may not deny
the people the constitutionally guaranteed right to bear arms, and
to that extent the ordinance under consideration is void." 

8.  State v. Nickerson, 126 Mt. 157, 247 P.2d 188, at 192 (1952):
The law ... accords to the defendant the right to keep and bear
arms and to use same in defense of his own home, his person and
property."

9.  People v. Liss, 40g Ill. 419, 94 N.E. 2d 320, at 323 (1950)
"The second amendment to the constitution of the United States
provides the right of the people to keep and bear arms shall not be
infringed.  This of course does not prevent the enactment of a law
against carrying concealed weapons, but it does indicate it should
it should be kept in mind, in the construction of a statute of such
character, that it is aimed at persons of criminal instincts, and
for the prevention of crime, and not against use in the protection
of person or property."

10.  People v. Nakamura, 99 Colo. 262, at 264, 62 P.2d 346 (en banc
1936): "It is equally clear that the act wholly disarms aliens for
all purposes.  The state...cannot disarm any class of persons or
deprive them of the right guaranteed under section 13, article II
of the Constitution, to bear arms in defense of home, person and
property.  The guaranty thus extended is meaningless if any person
is denied the right to possess arms for such protection." 

11.  Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11
S.W. 2d 678 (1928): "There is no qualifications of the prohibition
against the carrying of a pistol in the city ordinance before us
but it is made unlawful 'to carry on or about the person any
pistol,' that is, any sort of pistol in any sort of manner...We
must accordingly hold the provision of this ordinance as to the
carrying of a pistol invalid." 

12. People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922):
"The provision of the Constitution granting the right to all
persons to bear arms is a limitation on the right of the
Legislature to enact any law to the contrary.  The exercise of a
right guaranteed by the Constitution cannot be made subject to the
will of the sheriff." 

13. State v. Kerner, 181 N.C. 574, 107 S.E. 222 at 224 (1921): "We
are of the opinion however, that 'pistol' ex vi termini is properly
included within the word 'arms' and that the right to bear such
arms cannot be infringed.  The historical use of pistols as 'arms'
of offense and defense is beyond controversy...The maintenance of
the right to bear arms is a most essential one to every free people
and should not be whittled down by technical constructions."

14. State v. Rosenthal, 75 Vt 295, 55A. 610 at 611 (1903): "The
people of the state have a right to bear arms for the defense of
themselves and the state...The result is that Ordinance No. 10, so
far as it relates to the carrying of a pistol, is inconsistent with
and repugnant to the Constitution and the laws of the state, and it
is therefore to that extent, void." 

15.  In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902): "The
second amendment to the federal constitution is in the following
language: 'A well-regulated militia, being necessary to the
security of a free state, the right of the people to keep and bear
arms, shall not be infringed.' The language of section 11, article
I of the constitution of Idaho, is as follows: 'The people have the
right to bear arms for their security and defense, but the
legislature shall regulate the exercise of this right by law.' 
Under these constitutional provisions, the legislature has no power
to prohibit a citizen from bearing arms in any portion of the state
of Idaho, whether within or without the corporate limits of cities,
towns, and villages."

16. Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54
(1878): "If cowardly and dishonorable men sometimes shoot unarmed
men with army pistols or guns, the evil must be prevented by the
penitentiary and gallows, and not by general deprivation of
constitutional privilege."

17.  Jennings v. State, 5 Tex. Crim App. 298, at 300-01 (1878): 
"We believe that portion of the act which provides that, in the
case of conviction, the defendant shall forfeit to the county the
weapon or weapons so found on or about his person is not within the
scope of legislative authority...  One of his most sacred rights is
that of having arms for his own defence and that of the State. 
This right is one of the surest safeguards of liberty and
self-preservation." 

18. Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871):
"The passage from Story shows clearly that this right was intended,
as we have maintained in this opinion,  and was guaranteed to and
to be exercised and enjoyed by the citizen as such, and not by him
as a soldier, or in defense solely of his political rights." 

19.  Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846): "'The right
of the people to 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."

The Right to Keep and Bear arms has been supported in U.S. vs.
Miller, and no less than 21 other lower court decisions over the
last 150 years in the United States, none of which have ever been
successfully challenged in a higher court. THIS IS THE BODY OF LAW
ON THE RIGHT TO KEEP AND BEAR ARMS AND CONSTITUTES JUDICIAL
PRECEDENT.

A list of 12 scholarly articles which have dealt with the subject
of the right to keep and bear arms a reflected in the Second
Amendment.  The people who have undertaken this research range from 
professors of law, history and philosophy to a United States 
Senator.  ALL have concluded that the Second is an INDIVIDUAL right
protecting American citizens in their peaceful use of firearms.

*  Hays, THE RIGHT TO BEAR ARMS, A STUDY IN JUDICIAL
MISINTERPRETATION, 2 Wm. & Mary L.R. 381 (1960) 

* Sprecher, THE LOST AMENDMENT, 51 Am Bar Assn. J. 554 & 665 (2
parts) (1965) 

* Comment, THE RIGHT TO KEEP AND BEAR ARMS: A NECESSARY
CONSTITUTIONAL GUARANTEE OR AN OUTMODED PROVISION OF THE BILL OF
RIGHTS? 31 Albany L.R. 74 (1967) 

* Levine & Saxe, THE SECOND AMENDMENT: THE RIGHT TO BEAR ARMS, 7
Houston L.R. 1 (1969) 

* McClure, FIREARMS AND FEDERALISM, 7 Idaho L.R. 197 (1970) 

* Hardy & Stompoly, OF ARMS AND THE LAW, 51 Chi.-Kent L.R.
62 (1974)

* Weiss, A REPLY TO ADVOCATES OF GUN CONTROL LAW, 52 Jour. Urban
Law 577 (1974)

* Whisker, HISTORICAL DEVELOPMENT AND SUBSEQUENT EROSION OF THE
RIGHT TO KEEP AND BEAR ARMS, 78 W.Va. L.R. 171 (1976)

* Caplan, RESTORING THE BALANCE: THE SECOND AMENDMENT REVISITED, 5
Fordham Urban L.G. 31 (1976)

* Caplan, HANDGUN CONTROL: CONSTITUTIONAL OR UNCONSTITUTIONAL? 10 
N.C. Central L.J. 53 (1979)

* Cantrell, THE RIGHT TO BEAR ARMS, 53 Wis Bar Bull. 21 (Oct. 1980) 

* Halbrook, THE JURISPRUDENCE OF THE SECOND AND FOURTEENTH 
AMENDMENTS, 4 Geo. Mason L. Rev. 1 (1981)

**************
This list was prepared by John Marshall, El Paso TX, and posted to
this board by John Grossbohlin, Kingston, NY, 3/31/92