JUDICIAL II

The constitutional right to bear arms is intended to guaranty to the people, in support of just government, such right, and to afford the citizen means for defense of self and propertyWhile this secures to him a right of which he cannot be deprived, it enjoins a duty in execution of which that right is to be exercised. If he employs those arms which he ought to wield for the safety and protection of his country, his person, and his property, to the annoyance and terror and danger of its citizens, his acts find no vindication in the bill of rights. That guaranty was never intended as a warrant for vicious persons to carry weapons with which to terrorize others. Going armed with unusual and dangerous weapons, to the terror of the people, is an offense at common law. A man may carry a gun for any lawful purpose, for business or amusement, but he cannot go about with that or any other dangerous weapon to terrify and alarm a peaceful people.

–Chief Justice William T. Spear, Supreme Court of Ohio,

[State v. Hogan, 63 Ohio 202, 58 N.E. 572, 52 L.R.A. 863, 81 Am. St. 626 (1900).]

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JUDGE GRANT

Addressed the League.

Interesting Talk on “The
Present Crisis.”

Those Present Stirred
by His Remarks.

“Expansion” Was Discussed
by Judge J. A. Kohler.

He Will ‘Not Follow Course Mapped
Out by Politicians

   At the regular meeting of the Economic League Tuesday night the members were entertained by the discussion of the topic, “The Present Crisis.” The discussion was opened by Judge C.R. Grant, who delivered one of the best addresses ever given before the League.

   Judge Grant took the ground that the policy of the present administration, which is to be ratified by Congress, is to govern the dependencies outside the limitations of the constitution and to deny them the rights provided for in the constitution and its amendments. He referred to the right to keep and bear arms, the right of free speech, free and peaceful assemblage and the right of representation. He pointed out that this policy includes precisely the same principles and in almost the same language, as the circular sent out by the sovereigns of Europe, who constituted the Holy Alliance of Laybach and which conference was the immediate cause of the Monroe doctrine. He claimed that the United States is now committed to a policy to guard against which the Monroe policy was adopted. The underlying cause of this, he believes, is the spirit of commercialism which has been growing over since the Civil War. This spirit has crucified the gospel of humanity and is ready to turn the provinces into deserts for the sake of increasing the dividends on schemes of exploitation. The cant and hypocrisy about the United States being the trustee of the world’s civilization and the like are nothing more than the “pandering to the moral element.” The money given for the endowment of charities, colleges and libraries generally means nothing more than the giving back of that which has been taken from the people at large under some one of the various schemes of spoilation and for the purpose of quieting the public conscience and stifling its sense of right. The robbery is still going on. The same parting of ways faced us in 1861. Fortunately then the enthusiasm of humanity prevailed over greed. He predicted that it will require some great national emergency to bring back the people to a sense of national integrity and that it will take only a few years of the present spirit of exploitation to bring about this condition. He said that he confidently looked to see the nation roused from its sleep in the lap of Delilah, clothed in its right mind, and ready to battle for the human race instead of plundering it.

   At the conclusion of Judge Grant’s address, N. Chalker presented a motion that a vote of thanks be tendered the Judge for the excellent manner in which he had presented the subject to the league. The vote was enthusiastically given….

[Akron Daily Democrat, Akron, Ohio, Wednesday Evening, February 28, 1900. Volume Eight. Number 269 Pg. 4]

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. . . And here in the year 1900 I am safe in saying that the majority of the youth of our country carry arms. No doubt there is a difficulty in the way of our legislation–our Constitution–the Federal Constitution–secures to the citizen the right to carry arms . . . It was to preserve the right to defend home, property, person and family, and to defend the country, and the right to hunt game.

It was for this purpose and similar purposes that the constitutional provision was inserted. . . .

–Judge [William Christie] Benet, (1846-1930).

[The Abbeville Press And Banner, Abbeville, S.C., Wednesday, April 11, 1900. Pg. 1]

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QUARLES, C[hief]. J[ustice]. – “…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, art. 1, Const. 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. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it. A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void. The statute being void, the said justice’s court had no jurisdiction of the subject-matter of the action, and the said judgment of conviction, and the commitment which issued thereon, and the detention of the petitioner under said commitment and judgment of conviction, are illegal and void. (p.610)

The said judgment being void, habeas corpus will lie, and the prisoner should be discharged from custody, and it is so ordered.

SULLIVAN and STOCKS LAGER, JJ., concur.

[Supreme Court of Idaho. Nov. 15, 1902. In re Brickey, 8 Idaho 597, 70 P. 609, 101 Am. St. Rep. 215, 1 Ann. Cas. 55 (1902).]

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The first instruction the members of the organized militia should receive should be that they are citizens first and soldiers next; that whether as citizens or soldiers they are and must always be in strict subordination to the civil power and responsible to the civil and criminal law for their acts; that in active service they are nothing more than people, with not even as extensive powers as municipal police that the order of a superior in excess of his lawful authority will not and cannot protect them from the consequences of the law should they violate it; that their uniform represents the dignity of the state and that the wearing of it calls for more courtesy toward fellow citizens than they ordinarily exercise; that they have no right to arrest without warrant unless an offense be committed in their presence; that they have no right to invade private premises for any purpose unless armed with a search warrant or In aid of civil process; that they cannot dispossess persons lawfully in possession of buildings or premises without violating the law and rendering themselves liable in damages and perhaps criminally; that as the right to keep and bear arms (not concealed on the person) is guaranteed by the constitution to every citizen they have not the right to take or confiscate weapons nor to search for them without warrants; that, in short, they must not be misled by the dazzling uniforms of staff colonels or deluded by the pomp and panoply of war with which latter day vanity surrounds their duty into believing they are for a moment above or beyond the law which they are called on to uphold and vindicate.

–[Colorado District] Judge Frank W. Owens

[Willmar Tribune, Willmar, Minnesota, July 11, 1903. Vol. 9. No. 42. Pg. 6]

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“‘It is not only the same in words, but the same in meaning, and delegates the same powers to the government, and reserves and secures the same rights and privileges to the citizen; and as long as it continues to exist in its present form, it speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.’”–Mr. Chief Justice Taney in Scott v. Sandford, 19 How. 393, 426, 15 L. ed. 691, 709.

–Mr. Justice Brewer deliver[ing] the opinion of the court, U.S. Supreme Court,

[South Carolina v. US, 199 U.S. 437 (1905)]

. . . in order to give life and vigor to this natural rightfor the right to bear arms in defense of one’s property, his home or his person, would amount to naught if the rights to use such arms under proper circumstances, were denied.

–Judge Albert Dexter Nortoni, St. Louis Court of Appeals.

[Town of Canton v. Madden, St. Louis Court of Appeals, July 9, 1906.]

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[Daily Public Ledger, Maysville, KY., Monday, December 17, 1906. Pg. 1]

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Under this provision the people of Ohio, and all the people, are given the right, and the equal right, to carry arms for the purpose of self defense and protection. There are certain limitations, however, which may be, and are, lawfully imposed upon the exercise of this right. In the first place, the arms must not be concealed. More than this, even if they are not concealed, they must not be borne or carried in such a manner as to constitute a menace or threat of a breach of the peace. If firearms or other weapons are carried in such a threatening manner as to imperil life or property or to provoke a riot or disturbance, the persons so carrying them are not protected by the provisions of the constitution of Ohio. In other words, while every citizen has the right to carry arms in defense of his life or property, yet if the situation in the coal mining regions of the state, to which you refer, should show that one or both of two hostile bodies of men are carrying arms so as to endanger the good order of the community, it would be the duty of the proper local authorities to enforce the law as against them, and the governor would be justified, if necessary, to use all the power at his command to avert the threatened danger.

–Ohio State Attorney General Wade H. Ellis, June 14, 1906 letter to Gov. John M. Patterson.

[Annual Report of the Attorney General to the Governor of the State of Ohio For The Period From January 1, 1906, To January 1, 1907, Pg. 32]

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COOPERS’ CHIEF LAWYER SPEAKS.

Defence Fires Its 16-Inch Gun With
Telling Effect-Best Criminal
Attorney in Tennessee Assail 
the Prosecution.

[Cooper v. State, Tenn. 1909]

Nashville, Tenn., March 12.–The sixteen-inch gun of the defence’s batteries was trained upon the State today with telling effect, when Judge James McFerran Anderson began his argument in the trial of Col. D.B. and Robin Cooper and John D. Sharp for the murder of former United States Senator E.W. Carmack. Judge Anderson, who is considered the ablest criminal lawyer in the State, is chief counsel for defence. Strangely enough he was a close personal friend and political supporter of Senator Carmack. Although in bad health and worn with the strain of ten weeks of active work his speech today, instead of dimming his reputation, has added only lustre to it.

Anderson is not a dramatic orator. He adopts no theatrical devices. He does not speak in metaphors nor indulge in sentimental appeals. Only once did he refer to Col. Cooper as “the old soldier” and not once did he appeal to the sympathies of the jurors. He boldly disclaimed any idea of pleading that any editorial or speech could justify the slaying of Carmack and declared that his clients’ case rested solidly and alone upon the first law implanted in all living beings–the law of self-preservation. Then he boldly plunged into a dissection of evidence and an application of law and startled his hearers by solemnly asserting that Robin would have been justified in killing Carmack before he did.

He claimed that Col. Cooper, after having been assailed in print and upon the platform, had a right to seek out his defamer any place he might find him and demand that these assaults stop. He claimed further that Robin had a right to go with his father, and both of them had a right to go armed for their own protection if they believed that their protestations and demands would lead to an assault upon them.

Judge Anderson declared that this was the law, that he quoted it merely to show how strongly the courts protect the right of self-defence, and to make manifest Robin Cooper’s reluctance to shoot until he had himself been shot….

[The Herald and News, Newberry S.C., Tuesday, March 16, 1909. Vol. XLVII No. 22 Pg. 2]

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U.S. District Court Judge Robert Walker Tayler

SEES DEMOCRACY IN A GUN.

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.”

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

* 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.

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Indeed, is not this so of acts done in the execution of any crime? Discharging a loaded pistol at a target is an innocent pastime; discharging a loaded pistol at a human being, with felonious intent, takes a quality from such intent and may constitute murder.

–Mr. Justice McKenna, Delivering the opinion of the U.S. Supreme Court.

[HYDE v. U S, 225 U.S. 347 (1912), Page 225 U.S. 347, 360]

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“I will hold that the men watching the machines had a right to have arms,” interposed Judge Anderson. “They should have curried more arms than they had.”–U.S. District Court Judge A.B. Anderson.

[The Tacoma Times, Tacoma, Wash., Wednesday, March 24, 1915. Vol. XII. No. 81. Pg. 8]

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The collection of arms to be used in self defense of person or property is of itself proper and lawful, but the law does not authorize the killing of people stationed about, or property inside the habitation, and if you find, that any two or more of the defendants, in the manner and form and at the time charged in the information, planned to defend the I.W W. property therein or by of the persons therein, by the stationing of armed men in the Avalon hotel, the Arnold hotel, or on Seminary hill, for the purpose of shooting from those points, all persons actually or apparently engaged in a raid or attack upon the I.W.W. hall, or the persons or property therein, the placing of such men and the shooting from said outside points would not be lawful acts of defense of person or property but would be unlawful, and if you find that any two or more of the defendants carried out said plan and as a natural, necessary or probably result thereof. Warren O. Grimm was shot and killed as charged in the information, then such killing would be unlawful and would be murder and each and all of the defendants so planning or participating therein would be guilty of murder. But the mere collection and presence of arms is not sufficient Weheron to place information guilt on any of them, nor proof of conspiracy.

–Judge John Wilson of Olympia, WA. Grays Harbor County Superior Court. March 12, 1920. (The incident about which the trial was concerned is known as “The Centralia Massacre”, or the “Armistice Day Riot”. The killings had taken place on Tuesday, November 11, 1919.)

[The Bisbee Daily Review, Bisbee, Arizona, Saturday, March 13, 1920. Vol. 24.–No. 58. Pgs. 1 & 2]

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CITY ORDINANCE
IS HELD INVALID

Injunction Prevents City
From Regulating Sale
of Firearms

   Permanently restraining the city officials of Tulsa from enforcing the ordinance against the display and sale of firearms, a permanent injunction was granted in district court Saturday against the city by Judge Owen Owen on petition of J.W. Megee. R.V. Barden and others.

   In June the city commissioners passed ordinance No. 2.087 restricting the sale of revolvers, dirks, knives and billies to those who obtained a permit for such purchase from the chief of police. Dealers in this class of goods in the city obtained a temporary restraining order, and yesterday after a request from rounsel for both plaintiff and defendant for judgment on the pleading as set out in the plaintiffs petition, the court held that the ordinance is unlawful because in contradiction of the constitution of the State of Oklahoma and of the United States.

[The Sunday Tulsa Daily World, Tulsa, Oklahoma, Sunday, October 3, 1920. Vol. XV, No. 5. Pg. 1]

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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.

–State vs. Kerner, [181 N.C. 574, 107 S.E. 222, at 224 (1921).]

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The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power 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.”

–People v Zedillo, [219 Mich. 635, 189 N.W. 927, at 928] (1922).

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United States District Court Judge Heartsill Ragon, District Court, W. D. Arkansas, Fort Smith Division, United States v. Miller et al., ” 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.” , January 3, 1939

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…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.]

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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, U.S. 9th Circuit Court of Appeals, 2003.]

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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-defenseunder 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.] (Judge Chang was appointed by Obama!!).

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If the fundamental right of self-defense does not protect Caetano, then the safety of all Americans is left to the mercy of state authorities who may be more concerned about disarming the people than about keeping them safe.

The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” . . .

[U.S. Supreme Court, Caetano v. Massachusetts, with concurring opinions of Justices Alito and Thomas in the judgment, March 21, 2016.]

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Given that the Second Amendment’s central purpose is self-defense and that this need arises more frequently in public, it logically follows that the right to carry arms for self-defense in public lies at the very heart of the Second Amendment.

— Senior Judge Richard J. Leon, U.S. District Court For The District Of Columbia, May 17, 2016.

[Grace v. Dist. of Columbia, 187 F. Supp. 3d 124.]