Federal Judiciary on Arms

The following are quotations from Federal Judges and Justices that prove beyond all shadow of doubt that shall not be infringed means precisely that which was originally written:

The defence of one’s self, justly called the primary law of nature, is not, nor can it be abrogated by any regulation of municipal law. This principle of defence is not confined merely to the person; it extends to the liberty and the property of a man: it is not confined merely to his own person; it extends to the persons of all those, to whom he bears a peculiar relation — of his wife, of his parent, of his child, of his master, of his servant: nay, it extends to the person of every one, who is in danger; perhaps, to the liberty of every one, whose liberty is unjustly and forcibly attacked. It becomes humanity as well as justice.

–U.S. Supreme Court Justice James Wilson, Of the Natural Rights of Individuals.

[Lectures – 1790-1792.]

(Mr. Wilson had Signed the Declaration of Independence and the United States Constitution. He was a congressman, and a delegate to the Constitutional Convention. And ended up being one of the chief proponents of our present Constitution. In addition he was one of the original U.S. Supreme Court Justices appointed by President George Washington).

This may be considered as the true palladium of liberty . . . The right of self defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest possible limits…and [when] the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights* seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

–St. George Tucker, Blackstone’s Commentaries, U.S. District Court Judge, July 10, 1752 – Nov. 10, 1827.

. . . Judge [St. George] Tucker’s Lectures on the Judiciary of the United States, as delivered by him as Professor of Law at this University [William & Mary] . . .

. . . And here we cannot but observe, that the judiciary power cannot of itself oppress the citizen: The executive must lend its aid in every case where oppression can ensue from its decisions: but its decisions in favor of the citizen are carried into instantaneous effect by delivering him from the coercion of the executive officer the moment that judgment of acquittal is pronounced; and herein consists the excellence of our constitution, that no individual can be oppressed, whilst this branch of the government remains uncorruptedit being a necessary check upon the encroachments of power by either of the other. Thus, if the legislature should pass a law dangerous to the liberties of the people, the judiciary are to pronounce, not only whether the party accused be guilty of a violation thereof, but whether such law be permitted by the constitution. If, for example, a law were passed prohibiting the free exercise of religion; or abridging the freedom of speech, or of the press, or the right of the people to assemble peaceably, or to keep and bear arms, it would be the province of the judiciary to decide that the power of the legislature did not extend to the making of such law, and consequently to acquit the prisoner from any penalty which might be annexed to the breach of such an unconstitutional law. . . .

[The National Intelligencer And Washington Advertiser. Washington City, Vol. II. No. CCI. Friday, February 19th, 1802, Pg. 2]

Also, the conditions and circumstances of the period require a finding that while the stated purpose of the right to arms was to secure a well-regulated militia, the right to self-defense was assumed by the Framers.

–John Marshall, U.S. Supreme Court Chief Justice.

[As quoted in Nunn v. State, 1 Ga. 243, 251 (1846); State v. Dawson, 272 N.C. 535, 159 S.E.2d 1, 9 (1968).]

. . . Baldwin J. charged the jury . . .

The first section of the bill of rights in the constitution of Pennsylvania declares that all men have the inherent and indefeasible right of enjoying and defending life and liberty of acquiring possessing and protecting property that no man can be deprived of his liberty or property but by the judgment of his peers or the law of the land Sect 9 That the right of citizens to bear arms in defence of themselves and the state shall not be questioned Sect 21 The second section of the fourth article of the constitution of the United States declares the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states. The tenth section of the first article prohibits any state from passing any law which impairs the obligation of a contract. The second amendment provides that the right of the people to keep and bear arms shall not be infringed.”

. . . We shall pursue this subject no further, in its bearing on the political rights of the states composing the union–in recalling your attention to these rights, which are the subject of this controversy, we declare to you as the law of the case, that they are inherent and unalienable–so recognised by all our fundamental laws.

The constitution of the state or union is not the source of these rights, or the others to which we have referred you, they existed in their plenitude before any constitutions, which do not create but protect and secure them against any violation by the legislatures or courts, in makingexpounding or administering laws.

The nature of this case, its history, and the course of the argument, call on us to declare explicitly what is the effect of a constitutional protection or guarantee of any right, or the injunction of any duty. The twenty sixth section of the bill of rights in the constitution of Pennsylvania, is in these words; “to guard against transgressions of the high powers we have delegated we declare [we the people of Pennsylvania], that every thing in this article is excepted out of the general powers of government, and shall for ever remain inviolate.” A higher power declares this constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme laws of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding” Const U.S., art. 6, clause 2.

An amendment of the constitution is of still higher authorityfor it has the effect of controlling and repealing the express provisions of the constitution authorizing a power to be exercised, by a declaration that it shall not be construed to give such power. 3 Dall 382.

We have stated to you the various provisions of the constitution of the United States and its amendments, as well as that of this state; you see their authority and obligation to be supreme over any laws or regulations which are repugnant to them, or which violate, infringe or impair any right thereby secured; the conclusions which result are too obvious to be more than stated.

Jack was the property of the plaintiff, who had a right to possess and protect his slave or servant, whom he had a right to seize and take away to his residence in New Jersey by force, if force was necessary, he had a right to secure him from escape, or rescue, by any means not cruel or wantonly severe–he had a right to carry arms in defence of his property or person, and to use them if either were assailed with such force, numbers or violence as made it necessary for the protection or safety of either; he had a right to come into the state and take Jack on Sunday, the act of taking him up and conveying him to the Billet, was no breach of the peace if not done by noise and disorder, occasioned by himself or his party–and their peaceable entry into the house of Mrs. Kinderdine was lawful and justifiable, for this purpose, in doing these acts, they were supported by laws which no human authority could shake or question.

–U.S. Supreme Court Justice BALDWIN, Circuit Court of The United States.

[Pennsylvania April Term 1833 Before Hon. Henry Baldwin, Associate Justice of the [U.S.] Supreme Court, Hon Joseph Hopkinson District Judge, Johnson v. Tompkins(13 F. Cas. 840 (C.C.E.D. Pa. 1833)), and others.]

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. . . .

Joseph Story, U.S. Supreme Court Justice and Constitutional scholar,

[Commentaries on the Constitution of the United States (1833; Book III at 746, § 1890)]

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 recognise 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, U.S. Supreme Court Justice and Constitutional scholar,

[Commentaries on the Constitution of the United States (1833; 1890)]

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, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.

Joseph Story, U.S. Supreme Court Justice and Constitutional scholar, [Familiar Exposition of the Constitution of the United States (1840)]

We had no laws to forbid the wearing swords as dangerous weapons, or to prohibit the sale of powder and ball to any man, or any color, or of any extraction. We permitted every one to have arms, to bear arms, and to use arms. . . .

[U.S. Circuit Court, Trial of Castner Hanaway, Dec. 10, 1851]

And it is Rome, though in her decline politically, that, since the invention of gunpowder, has helped to civilize both Asia and America, as well as Europe . . . as well as the invention of gunpowder itself, all contribute, in the end, to diminish the waste of human life.

It is contended, also, by some, and not without plausibility, that the introduction of fire-arms has assisted much to elevate the lower classes

. . . arms allowed to be in the hands of all who had anything to defend, and all the laws like the shell of the marine animal, formed not to suit others, or by others, such as the inheritable Lycurguses or Solons of a monarchy, but to suit as well those who needed the laws as those the laws were destined to protect….

The dragon’s teeth of oppression, which had been by England, started up armed men everywhere; men accustomed the rifle from the cradle; restrained by no game laws from a chase; claiming a natural, afterwards a constitutional right to keep and bear arms….

–U.S. Supreme Court Associate Justice [as well as Representative, U.S. Senator, and Governor] Levi Woodbury.

[Writings of Levi Woodbury, LL.: D. Political, Judicial and Literary. Now First Selected And Arranged. In Three Volumes. Vol. III.–Literary. Boston: Little, Brown And Company. 1852.]

More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went….

…The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government [60 U.S. 393, 450]   can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

   A reference to a few of the provisions of the Constitution will illustrate this proposition.

   For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

   Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care….

Mr. Chief Justice TANEY, U.S. Supreme Court,

[Dred Scott v. Sandford, 60 U.S. 393 (1856).]

The Constitution and laws of the United States “are the supreme law of the land,” anything in the Constitution or laws of any State to the contrary, notwithstanding.” Their supremacy is thus declared in express terms: “Whatever conflicts therewith has no operative or obligatory force. Allegiance to the United States, and loyalty to the United States Constitution and laws, are the paramount duty of every citizen. Within their legitimate sphere, they command the obedience of all, and no State Constitution or statute can absolve any one therefrom….As it is both the right and duty of every citizen to become fully informed upon all governmental affairs, so as to discharge his many political obligations intelligently at the ballot-box, and in other legitimate ways; and the freedom of the press and of speech are guaranteed to him for that as well as other essential purposes; and as the right of the people peaceably to assemble and petition for the redress of grievances, and to keep and bear arms, cannot be lawfully abridged or infringed

CHARGE TO THE GRAND JURY BY THE COURT, United States Circuit Court, DISTRICT OF MISSOURI, SPECIAL JULY TERM, PRESENT: HON. JOHN CATRON, An Associate Justice of Supreme Court of United States. 1861. JULY 10, 1861.

Under the constitutional guarantee of the “right of every citizen to keep and bear arms in defence of himself and the government,” an evil has arisen to which I invite your especial attention–while that constitutional guarantee must be observed; the abuse of that right is liable to prosecution and punishment. If, for instance, the “arms” are used for the purpose of making an assault, with the intent to inflict upon the person of another a bodily injury, within the distance which such arms will carry, or to put him in fear, or to compel him by fear or threats to obey an unlawful order or command, where no considerable provocation appears, or where the circumstances of the assault show an abandoned and malignant heart, then, in any such case, the offender is liable to indictment and punishment. The privilege is given him alone for protection; not for infringement upon the rights of others.

–Judge [William Thompson] Howell, U.S. District Court, Charge to the Grand Jury of the First Judicial District, at Tucson, May Term, A.D. 1864.

[Arizona Miner, Prescott, Arizona, Wednesday June 22, 1864. Volume I. Number 7. Pg. 1]

The United States vs William J. Cruikshank and others–Judge Woods, [later associate justice of the U.S. Supreme Court (1880–87)], charged the jury as follows:

. . . The right to bear arms is also a right protected by the Constitution and laws of the United StatesEvery citizen of the United States has the right to bear arms, provided it is done for a lawful purpose and in a lawful manner. A man who carries his arms openlyand for his own protectionor for any other lawful purposehas as clear a right to do so as to carry his own watch or wear his own hat.

–Circuit Court of the United States Fifth Circuit and District of Louisiana, The United States vs. William J Cruikshank et al. [United States v. Cruikshank, 25 F. Cas. 707 (1 Woods, 308) (C.C.D. La. 1874) (No. 14,897), aff’d, 92 U.S. 542 (1876). ]

The people of the states do not ask congress to protect the right, but demand that it shall not interfere with it. Has anything since occurred to give congress legislative power over the subject matter? . . . Grant that this prohibition now prevents the states from interfering with the right . . . Power to enforce the amendment is all that is given to congress. If the amendment is not violated, it has no power over the subject. . . . . in their right to bear arms.–U.S. Supreme Court Justice Bradley. AFFIRMED, (United States v. Cruikshank), 92 U.S. 542 (1876).

And here is what the U.S. Supreme Court Chief Justice Waite had to state when affirming the above:

It is the duty of a State to see that its citizens are protected in the right to peacefully assemble for peaceful and lawful purposes. The Constitution forbids the government from abridging this rightThe right of bearing arms for lawful purposes must be seen to by the States, the Constitution simply providing that Congress shall not infringe its rights. The sovereignty to protect lives and property lies exclusively in the States. . . .

The fourteenth amendment prohibits States from depriving any person of certain rights, but this adds nothing to the rights of one citizen as against another. The only obligation of the United States is to see that the States do not deny the right. The amendment guarantees that, and no more. The power of the United States is limited to enforcement of the guarantee.

The first section of the fourteenth amendment reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws.

It will certainly not be claimed that the United States have the power to perform mere police duty within the States.

[The New Orleans Bulletin. New Orleans, Wednesday, March 29, 1876. Volume III–No. 631. Page 4]


Judge Says Firearms Alone Keep Men from Being Oppressed.

   Cleveland, Ohio. “There is more democracy wrapped up in a musket than n all the oratorical and academical platitudes ever spoken,’ declared Judge Robert W. Tayler* of the United States court, before a large gathering in Trinity Cathedral here.

   The Judge declared that as men were not born equal intellectually or physically the majority had been able to escape the rule of the brainier minority only by the development of firearms.

   “Free government Is not wholly due to an ethical sense of Justice,” he said. “Man has always yearned for it, but he never could have it until he could get It and keep it by resort to arms. Physical potentiality is the main thing, after all.”

[* Robert Walker Tayler, Nov. 20, 1852 – Nov. 25, 1910, was a United States federal judge. He was a Prosecuting attorney of Columbiana County, Ohio from 1880 to 1885, thereafter returning to private practice in Lisbon, Ohio until 1890, then in New York City until 1892, and again in Lisbon, Ohio until 1895. Tayler was elected as a Republican to the Fifty-fourth and to the three succeeding Congresses, serving from March 4, 1895 to March 3, 1903 as the Representative for Ohio’s 18th congressional district. On Jan.y 6, 1905, Tayler was nominated by President Theodore Roosevelt to a seat on the United States District Court for the Northern District of Ohio vacated by Francis Joseph Wing. He was confirmed by the United States Senate on January 10, 1905, and received his commission the same day. Tayler moved to Cleveland, Ohio, and served on the court until his death in that city, in 1910.]

[The Citizen, Honesdale, Wayne Co., PA., Friday, April 01, 1910. 67th Year. No. 26 Pg. 2]

The indictment is based upon the Act of June 26, 1934, C. 757, Section 11, 48 Stat. 1239, 26 U.S.C.A. § 1132j. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, “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 demurrer is accordingly sustained.

–United States District Court Judge Heartsill Ragon,

[United States v. Miller et al. 26 F.Supp. 1002 (1939) No. 3926. District Court, W. D. Arkansas, Fort Smith Division. January 3, 1939.]

…In addition to the original rights secured to him in the first article of amendments, [Fourteenth Amendment] he had secured the free exercise of his religious belief, and freedom of speech and the press. Then he had secured to him the right to keep and bear arms in his defense. Then, after that, his home was secured in time of peace from the presence of a soldier; and,still further, sir, his house, his papers, and his effects were protected against unreasonable seizure….”

. . . Though originally thefirst ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights-common law rights-of the man, they make them privileges and immunities of the man as citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words, while the ten Amendments, as limitations on power, only apply to the Federal government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power, as the ten Amendments had limited Federal power…

[Adamson v. People Of State Of California, U.S. Supreme Court, (Justices Black, Douglas and Swayne in Dissent), June 23, 1947.]

“”They were reluctant to ratify the Constitution without further assurances, and thus we find in the Bill of Rights Amendments 2 and 3, specifically authorizing a decentralized militia, guaranteeing the right of the people to keep and bear arms, and prohibiting the quartering of troops in any house in time of peace without the consent of the owner. Other Amendments guarantee the right of the people to assemble, to be secure in their homes against unreasonable searches and seizures, and in criminal cases to be accorded a speedy and public trial by an impartial jury after indictment in the district and state wherein the crime was committed. The only exceptions made to these civilian trial procedures are for cases arising in the land and naval forces. Although there is undoubtedly room for argument based on the frequently conflicting sources of history, it is not unreasonable to believe that our Founders’ determination to guarantee the preeminence of civil over military power was an important element that prompted adoption of the Constitutional Amendments we call the Bill of Rights.””

— Chief Justice Warren, (N. 5, supra, at 185.), U.S. Supreme Court, as quoted by Justice Douglas, with the concurrence of Justice Marshall, (in dissent),

[Laird v. Tatum, 408 U.S. 1 (1972). Decided June 26, 1972.]

The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

Judge Alex Kozinski,

[Silviera v. Lockyer, 9th Circuit Court of Appeals, 2003.]

Both Heller and McDonald suggest that First Amendment analogues are more appropriate, see Heller, 554 U.S. at 582, 595, 635; McDonald, 130 S. Ct. at 3045, and on the strength of that suggestion, we and other circuits have already begun to adapt First Amendment doctrine to the Second Amendment context.

Circuit Judge Diane S. Sykes, July 6, 2011, United States Court of Appeals For the Seventh Circuit,

[Rhonda Ezell, et al., v. City Of Chicago]

But on the other side of this case is another feature of government: certain fundamental rights are protected by the Constitution, put outside government’s reach, including the right to keep and bear arms for self-defense under the Second Amendment. This right must also include the right to acquire a firearm . . .

Judge Edmond E. Chang, United States District Court For The Northern District Of Illinois Eastern Division,

[Illinois Association of Firearms Retailers v. The City of Chicago and Rahm Emanuel, Mayor of the City of Chicago. No. 10 C 04184, Jan. 6, 2014.]