Joseph-Story-Arms

U.S. Supreme Court Associate Justice Joseph Story

Regarding Arms, Self-Defense and Self-Preservation:

§ 1890. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

§ 1891. A similar provision in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, “that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law.” But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.

–Joseph Story, Commentaries on the Constitution Book 3:§§ 1890–91. [1833]

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“301. Among the defects which were enumerated, none attracted more attention, or were urged with more zeal, than the want of a distinct bill of rights, which should recognize the fundamental principles of a free republican government, and the right of the people to the enjoyment of life, liberty, property, and the pursuit of happiness. It was contended that it was indispensable, that express provision should be made for the trial by jury in civil cases, and in criminal cases upon a presentment by a grand jury only; and that all criminal trials should be public, and the party be confronted with the witnesses against him; that freedom of speech and freedom of the press should be secured; that there should be no national religion, and the rights of conscience should be inviolable; that excessive bail should not be required, nor cruel and unusual punishments inflicted; that the people should have a right to bear arms; that persons conscientiously scrupulous should not be compelled to bear arms; that every person should be entitled of right to petition for the redress of grievances; that search warrants should not be granted without oath, nor general warrants at all; that soldiers should not be enlisted except for a short, limited term; and not be quartered in time of peace upon private houses without the consent of the owners; that mutiny bills should continue in force for two years only; that causes once tried by a jury should not be re-examinable upon appeal, otherwise than according to the course of the common law; and that the powers not expressly delegated to the general government should be declared to be reserved to the states. In all these particulars the constitution was obviously defective; and yet (it was contended) they were vital to the public security. [1]

[1] 2 Amer. Museum, 423 to 430; Id. 435, ; Id. 534, 536. 540. & 553, 557; 3 Amer. Museum, 62; Id. 157; Id 419, 420, The Federalist No. 38.]

– Joseph Story, Commentaries On The Constitution Of The United States, A Preliminary Review, or The Constitutional History Of The Colonies And States Before The Adoption Of The Constitution Joseph Story LL D Dane Professor Of Law In Harvard University.

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This results from the right of self-preservation. If a person attempts to take away my life, I have, doubtless, a right to protect myself against the attempt by all reasonable means. If I cannot secure myself but by taking the life of the assailant, I have a right to take it. It would otherwise follow, that I must submit to a wrong, and lose my life, rather than preserve it by the means adequate to maintain it. It cannot, then, be denied that, in a state of nature, men may repel force by force, and may even justly take away life, if necessary to preserve their own. When men enter into society, the right to protect themselves from injury and to redress wrongs is transferred, generally, from the individuals to the community. We say that it is generally so, because it must be obvious that, in many cases, the natural right of self-defence must remain. If a robber attacks one on the highway, or attempts to murder him, it is clear that he has a right to repel the assault, and to take the life of the assailant, if necessary for his safety; since society, in such case, could not afford him any adequate and prompt redress. The necessity of instant relief, and of instant application of force, justifies the act, and is recognized in all civilized communities.

[From Volume X: Prize – Death, Punishment Of. Pg. 141]

There are also certain prohibitions restrictions, and limitations upon the exercise of power by the National Government specially provided for. Among these are the following. The privilege of the writ of Habeas Corpus is not to be suspended, unless in cases of rebellion or invasion when the public safety may require it; no bill of attainder or ex post facto law is to be passed; no capitation or other direct tax is to be laid unless in proportion[1] to the last census or enumeration of the inhabitants; no tax or duty is to be laid on any exports from any state; no preference is to be given by any regulation of commerce or revenue, to the ports of one state over those of another; vessels bound to, or from one state are not obliged to enter, or pay duties to another; no money is to be drawn from the Treasury but in consequence of appropriations by law; no title of nobility is to be granted by the United States; no person holding office can without the consent of the Congress accept any present, emolument, office or title, from any foreign princes or states; and no private property can be taken for public use without just compensation. The Congress are also prohibited from making any law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the Press, or the right of the people peacefully to assemble, and to petition the government for a redress of grievances. The right of the people to keep and bear arms, is not to be infringed; and no soldier in time of peace can be quartered in any house without the consent of the owner, nor in time of war but in a manner to be described by law. No religious test can be required as a qualification to any office or public trust under the United States.

[1] “proper time” in ms.

[Joseph Story and the Encyclopedia Americana, By Joseph Story, Francis Lieber, (The American Journal of Comparative Law Vol. 3, 1954, Pgs. 14-15), Pgs. 176-77. (1844)]

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258. The next amendment is–’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 in fringed.’ One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the Militia. The friends of a free Government cannot be too watchful to overcome the dangerous tendency of the public mind to sacrifice to mere private convenience this powerful check upon the designs of ambitious men.

[The Constitutional Class Book: Being A Brief Exposition Of The Constitution Of The United States Designed For The Use Of The Higher Classes In Common Schools. By Joseph Story, LL.D. Dane Professor of Law in Harvard University. ‘The unity of Government, which constitutes you one People, is also dear to you. It is justly so; for it is the main pillar in the edifice of your leal Independence; the support of your tranquillity at home, and your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize.’–Washington’s Farewell Ad dress to the People of the United States. Boston: Hilliard, Gray & Company. 1834. Pg. 149]

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The Right of the People to Keep and Bear Arms shall NOT be infringed.

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