Judicial

U.S. Supreme Court Chief Justice Salmon Portland Chase

Quotations from various local, state and federal legal authorities concerning the right to keep and bear arms:

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. Ending 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).

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Trowbridge’s and Oliver’s Charges to the Jury
5 December 1770

Justice Trowbridge

Gentlemen of the Jury . . .

. . . I will not now determine whether it was treason or not; but it certainly was a riot that savoured of rebellion; for the suppressing whereof, private persons might not only arm themselves, but make use of their arms, if they could not otherwise suppress it.

[The Boston Massacre Trial, Dec. 1770]

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First Federal Judge, President Judge of the Fifth Judicial of Pennsylvania, Charge to the Grand Juries: “Invasion of the rights of others is tyranny, and if this invasion may be made by every one, it is tyranny of the worst kind“, January, 1799

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For The National Intelligencer

William & Mary, Jan. 30, 1802. . . .

. . . 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 uncorrupted: it 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]

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Trial Of Thomas O. Selfridge, “There is no law written or unwritten, no part of the statute or common law of our country, which denies to a man the right of possessing or wearing any kind of arms. . . . Every man has a right to possess military arms, of every sort and kind, and to furnish his rooms with them.”, Aug., 1806

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The citizens are the safeguards of a free state. Their right to keep and bear arms has never been infringed. We will use these weapons resolutely in support of our privileges; with these will manfully oppose the enemy who shall presume to invade them.

[N.Y.C. District Attorney Richard Riker, Aug. 10, 1814.]

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Chief Justice [Ambrose] Spencer, New York Supreme Court, People v. Robert M. Goodwin, “The first article of the amendments prohibits congress from making any law respecting an establishment of religion, or prohibiting the free exercise thereof; abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition government for a redress of grievances. The second secures the right of the people to bear arms; and indeed without going into them minutely, nearly all the amendments of that instrument indicate either great caution in defining the powers of the national government, and the rights of people, and the states, or they evince a jealousy and apprehension that their fundamental rights might be infringed, so as leave no doubt, that by the article under consideration, no new principle was intended to be introduced.”, March Session 1820

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Court of Appeals of the Commonwealth Of Kentucky, “The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore and you necessarily restrain the right; and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted.”, 1822

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There is no authority given by the patrol law or any other law of the state, to enter the dwelling house of one, a free man of the country . . . and take from thence his arms or any other property.

[Constitutional Court of South Carolina, John Porteous, vs. Joseph Hazel and Joseph Jenkins, 1824]

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Now, in questions of this sort, precedents ought to go for absolutely nothing. The constitution is a collection of fundamental laws, not to be departed from in practice nor altered by judicial decision, and in the construction of it, nothing would be so alarming as the doctrine of communis error, which offers a ready justification for every usurpation that has not been resisted in limine. Instead, therefore, of resting on the fact, that the right in question has universally been assumed by the American courts, the judge who asserts it ought to be prepared to maintain it on the principles of the constitution.

[Chief Justice John Bannister Gibson, in dissent in Eakin v. Raub, 12 Sergeant and Rawle 330, Pennsylvania 1825.]

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Chief Justice Parker, Commonwealth v. Blanding, “The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.”, 1825

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The prohibition is general. No clause in the Constitution could by ANY rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.

[William Rawle, A View of the Constitution, 125-6 (2nd ed. 1829). (Appointed by President George Washington as U.S. District Attorney for Pennsylvania in 1791). (1825)]

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Supreme Court Of The State of Vermont, “always excepting one cow, and such suitable apparel, bedding, tools, arms  and articles of household furniture, as may be necessary for upholding life.” [1829]

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The opinion of the Court was delivered by.

Prentiss, J.–The statute, directing the levying and serving of executions, exempts from execution, “one cow, and such suitable apparel, bedding, tools, arms, and articles of household furniture, as may be necessary for upholding life.”–(Comp. Stat. p. 208. s. 1.)–Though the exemption, in terms, is confined to executions, yet as the object of an attachment is to take property to be sold on execution in satisfaction of the judgment which may be recovered, chattels, which cannot lawfully be seized and sold on execution, cannot lawfully be attached.

[Alphonzo Kilburn vs. Asahel Demming. Franklin, January, 1829. Pg. 404]

[Reports Of Cases Argued And Determined in the Supreme Court Of The State Of Vermont. Reported By The Judges Of Said Court, Agreeably To A Statute Law Of The State. Vol. II. St. Albans: J. Spooner…..PRINTER. 1830.]

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  1. The people have a right to keep and bear arms, and this for the security of freedom. The citizen is thus ever armed against foreign aggression, and prepared to encounter civil war, and becomes the sleepless sentinel of his liberties.

[A Concise Treatise Upon The Powers And Duties Of The Principal State, County, And Town Officers. For the Use of Schools. By A Gentleman Of The Bar. Utica, William Williams, Publisher And Printer, No. 60, Genesse street. 1831. Pg. 23. He was Captain of a company of volunteers in the War of 1812, later becoming brigade major and then colonel on the staff of General Oliver Collins in 1813 during the Sacketts Harbor incident.]

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5. A fifth right of every citizen, “is that of having arms for his defence.” By the constitution of the United States, “the right of the people to keep and bear arms, shall not be infringed;” and by that of Pennsylvania, “the right of citizens to bear arms in defence of themselves and the state, shall not be questioned.” These provisions also, were no doubt intended, to avoid a recurrence of the restrictions on this subject, found in the English laws. By the forest and game laws, in England, the right of keeping arms is effectually taken away from the great body of the people; and, in another place in the Commentaries, it is said, “that the prevention of popular insurrections and resistance to government, by disarming the bulk of the people, is a reason oftener meant, than avowed, by the makers of such laws.

[Pennsylvania Blackstone; A Modification Commentaries Of Sir William Blackstone, With Numerous Alterations And Additions, Designed To Present An Elementary Exposition Of The Entire Laws Of Pennsylvania In Three Volumes. Vol. I. By John Reed, President Judge of the Courts of Common Pleas of the ninth Judicial District of Pennsylvania. Carlisle: Printed By George Fleming–For The Author. 1831. “The Rights” Book I. Pg. 128]

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Judge Samuel S. Nicholas, Kentucky Court of Appeals, Gray v. Combs, “On the other hand, the right of necessary defense, in the protection of a man’s person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper it may be for every well-ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy nor propriety in extending this tenderness and care so far as to protect the robber, the burglar, and the nocturnal thief, by an unnecessary restraint of the honest citizen’s natural right of self-defense.”, 1832

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Johnson v. Tompkins, Circuit Court of The U.S.: U.S. Supreme Court Justice BALDWIN; “the right of the people to keep and bear arms shall not be infringed . . . 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 . . . 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 making, expounding or administering laws.”, 13 F. Cas. 840 (C.C.E.D. Pa. 1833)

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U.S. Supreme Court Associate Justice Joseph Story: Regarding the Right to Arms, Self-Defence and Self-Preservation. “The right of the people to keep and bear arms, is not to be infringed”

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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.

-–Chief Justice John Marshall, U.S. Supreme Court. (1835?)

[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).]

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New York City Police Court Justice Bloodgood, “but modern Justice arms himself with pistols, which Mr. Recorder Riker thinks a very proper sort of weapon for private citizens to carry“, 1836

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Hon. Judge Rowan, Special Term, appointed by Act of Assembly, Address to the Jury: “The right of the people to carry arms, is little less than identic with their freedom. Without arms, they cannot vindicate their freedom. . . . But the wearing of arms whether bowie-knives, pistols, or whatever else, does not at all alter the rights of the citizens. For assault they should not be wanted, for defence, when occasion requires, they are of great value. The right of self-defence remains, under all circumstances the same. It is a primary element of our identity. Nature gave it, art cannot take it away–as derived from nature, it is limited to the use of no particular species of arms, and embraces every species.”, March 4th, 1839

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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)]

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Justice Thomas J. Lacy, Arkansas Supreme Court, In dissent: “Now, the right of the people to keep and bear arms is as free and unfettered, and as inviolable and important”, State v. Buzzard, 4 Ark. (2 Pike) 18 (1842).

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Supreme Court of North Carolina, State v. Robert S. Huntly, “But although a gun is an “unusual weapon,” it is to be remembered that the carrying of a gun per se constitutes no offence. For any lawful purpose–either of business or amusement–the citizen is at perfect liberty to carry his gun.”, June, 1843

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A man has a right to keep whatever arms he pleases in his house, and to introduce men to use them. And he can take them when he pleases, whether he apprehends danger or not. This is a freeman’s privilege. Any man who cannot arrest another in the perpetration of a felony, has a right to take his life, as a measure of necessity.

Chief Justice John Bannister Gibson, Pennsylvania Supreme Court, Charge to the Jury [Donoghue v Philadelphia (supra)]

[Indiana State Sentinel, Indianapolis, January 2, 1845. Volume IV – Number 28. Pg. 4]

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Chief Justice Joseph Henry Lumpkin, Supreme Court of Georgia, Nunn v. Georgia, “The right of the whole people, old and young, men, women and boys, and not militia only, to keep and hear arms of every description, not merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree“, 1846

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Louisiana Supreme Court, State v. Chandler, “It interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”, 1850

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The slave is controlled only by fear; that fear arises solely from arms which the law puts into the hands of the white man, and takes from him.

[Supreme Court Of Louisiana, J.B. Arnandez v. Thomas B. Lawes, Feb., 1850.]

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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]

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U.S. Supreme Court Associate Justice (as well as Representative, U.S. Senator, and Governor) Levi Woodbury, “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.”, 1852

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Mr. Thomas F. Marshall, (Nephew of U.S. Supreme Court Chief Justice John Marshall), Trial of Matt. F. Ward, “This right of self defence carries with it all the means necessary for its exercise. . . . As to the amount of force I have a right to use, necessity is the only measure.”, April 21, 1854

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Were the muskets of the freemen of this country indicted as nuisances? I have not heard that they were I read in the highest law of the land that the right to bear and keep arms shall not be infringed. There is no pretense of any law for this outrage. No law exists or can exist in these United States which will authorize a Sheriff–admitting now that he is the valid Sheriff–or a Marshal, to go to a town and demand from its citizens their arms.

Senator Trumbull, June 9, 1856 Speech in the U.S. Senate.

[New-York Daily Tribune, New-York, Saturday, June 14, 1856. Vol. XVI……No. 4,729. Pgs. 9 & 10]

(Senator Lyman Trumbull from Illinois was a member of State house of representatives 1840-1841; secretary of State of Illinois in 1841 and 1843; Justice of the Supreme Court of Illinois 1848-1853; elected to the Thirty-fourth Congress in 1854, but before the beginning of the Congress was elected to the United States Senate; reelected in 1861 and again in 1867, and served from March 4, 1855, to March 3, 1873.)

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U.S. Supreme Court, Chief Justice Roger B. Taney, Scott v. Sandford, “to keep and carry arms wherever they went . . . Nor can Congress deny to the people the right to keep and bear arms“, Dec., 1856

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The Supreme Court of The State of Texas, Chief Justice John Hemphill, “The right to bear arms has always been considered by a free people, as of almost priceless value; so much so, that it is secured by an express provision of the constitution. . . . But, though the right to keep and bear arms cannot be infringed by legislation . . .”, 1857

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Supreme Court of Alabama, Chief Justice Samuel Farrow Rice, Owen v. State, “That section was not designed to destroy the right, guarantied by the constitution to every citizen, “to bear arms in defense of himself and the State”; nor to require them to be so borne, as to render them useless for the purpose of defense.”, 1858

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The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.

[Cockrum v. State, 24 Tex. 394] (1859).

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As to what will constitute reasonable grounds of belief in such cases, sufficient to justify taking life, must depend, to a considerable extent, on the circumstances of each particular case. And the reasonableness of the appearances under which a party claims to justify, may very properly be left to a jury, under the instructions of the court. And, I think, it is going too far to lay down the general rule, that an actual assault must be committed; for such a rule would take away, or, at least, render almost unavailable, the right of self-defence, when fire-arms are used.

–Associate Justice Reuben P. Boise, Supreme Court of the State of Oregon.

[Goodall v. State Of Oregon. July, 1861.]

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U.S. Supreme Court Justice John Catron

United States Circuit Court,
District Of Missouri,
Special July Term, 1861.

Present:

Hon. John Catron,

An Associate Justice of Supreme Court of United States.
Hon. Rob’t W. Wells,District Judge of United States for Western District of Missouri.
Hon. Samuel Treat, District Judge of United States for Eastern District of Missouri.

Charge To The Grand Jury

By The Court, July 10, 1861.

St. Louis:

Printed At The Democrat Book And Job Office

1861.

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TO THE GRAND JURY….

…A brief reference to some of the offences of which you have cognizance, and a succinct statement of the law concerning them, may aid your investigations, and serve for your guidance:

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….

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…Inasmuch as the Constitution provides a peaceable and regular mode whereby it or the U. S. laws may be amended, there can be no other rightful mode of effecting that end known either to the Constitution or law. 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 armscannot be lawfully abridged or infringed, it is evident that an assemblage for the mere purpose of procuring peaceable redress of supposed grievances cannot be treasonable; nor can a free and full discussion of the acts of public men or public measures, whether such discussion be in private conversations, public meetings or the press; nor can a military gathering when assembled for no purpose or design of interfering, by force or intimidation, with the lawful functions of the government or of its constituted authorities, or of preventing the execution of any law, or of extorting its alteration or repeal, or of overthrowing the lawful supremacy of the United States in any State of Territory….

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Different news article versions of the above were in The New York Herald, July, 14, 1861. Pg. 8. As well as an expanded version in The Daily Exchange. Baltimore, Friday, August 30, 1861. Pg. 2. Also shortened versions in The Weekly Pioneer and Democrat. Saint Paul, Friday, July 26, 1861. Pg. 3, The Bedford Gazette. Bedford, PA., Friday Morning, September 13, 1861. Pg. 1, Columbia Democrat And Bloomsburg General Advertiser. Bloomsburg, PA., September 14, 1861. Pg. 2, and Joliet Signal. Joliet, Illinois, September 24, 1861. Pg. 1.

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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]

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One of the main grounds relied on in justification of the free negro upon the charge of carrying fire arms, is shown to be, under the 23d Section of the Bill of Rights of Mississippi, declaring that “every citizen has the right to bear arms in defense of himself and of the State.” The question then arose, was the free negro “a citizen” of this State? . . .

[Civil Rights Bill Declared Unconstitutional, October 6, 1866.]

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Judge Bullock, of the County Court of Natchez, has decided the State law that deprives colored people of the right to bear arms to be in opposition to the State Constitution, which obliges the Legislature to protect the persons and property of the freedmen.

[The Weekly North-Carolina Standard, Oct. 17, 1866.]

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1st Chief Justice of the Kansas Supreme Court Thomas Ewing Jr.

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Besides, it is well understood and received as a commentary on this provision of the liberty of the press, that it was intended to prevent all such previous restraints upon publications as had been practised by other governments, and in early times, to stifle the efforts of patriots towards enlightening their fellow subjects upon their rights and duties of the rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse; like the right to keep fire-arms, which does not protect him who uses them for annoyance or destruction.[1]

[1] Commonwealth v. Blanding, 3 Pick. 313. See charge of Chief Justice McKean of Penn., 5 Hildreth, 166; Wharton’s State Trials, 328; State v. Lebre, 2 Rep. Const. Court, 809.]

[A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power Of The States Of The American Union. By Thomas M. Cooley, One Of The Justices Of The Supreme Court Of Michigan, And Jay Professor Of Law In The University Of Michigan. Boston: Little, Brown, And Co., 1868. Pg. 421]

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. . . while the court recognized the constitutional right of every person to bear arms in self-defense, it did not recognize the necessity of any man defending himself with arms before a court of justice. . . . Articles were published in the paper there intimating that it was a trick of the court to bring about a conflict between the court and citizens there, and claiming that the citizens had a constitutional right to bring their pistols into the court-house.

–7th Judicial Circuit Court Judge Luther R. Smith, [Testimony before the U.S. Congress] June 10, 1871.

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Bearing arms for the common defense may well be held to be a political right, or for the protection and maintenance of such rights, intended to be guaranteed; but the right to keep them, with all that is implied fairly as an incident to this right, is a private individual right, guaranteed to the citizen, not the soldier.

[Andrews v. State, 50 Tenn. at 156, 3 Heisk. at 182.] (1871).

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   “Mr. Corbin. If the court please, if there is any right that is dear to the citizen, it is the right to keep and bear armsand it was secured to the citizen of the United States on the adoption of the amendments to the Constitution, had never been held directly to be a restriction, only upon Congress or upon Federal power as against the citizen, but the same argument, probably, which was used by the court in the case of the lessees of somebody against Maryland, that the amendments were intended generally to be a restriction upon the United States Congress, as against the citizen of the United States. In other words, that the citizens were notthe right of the citizen was notto be encroached upon by Congress in this respect, and that they do not–these amendments did not–apply to the States, But, if the court please, the fourteenth amendment changes all that theory, and lays the same restriction upon the State that before lay upon the Congress of the United States, viz; That as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. That is included in the fourteenth amendment among the privileges and immunities of the citizen that were not referred to.”

U.S. District Attorney D.T. Corbin

[Testimony Taken by the Joint Select Committee to Inquire into the Condition of affairs in the Late Insurrectionary States South Carolina, Volume 3, 1872, Start Page 1615, Trials at Columbia, South Carolina, Circuit Court of the United States, 1871. U.S. Circuit Judge Hon. H.L. Bond of Maryland, U.S. District Judge Hon. George S. Bryan of South Carolina.]

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. . . when night comes, and his weapon is needed for his safety . . . the Judge’s opinion was that he had the right under the statute to bear arms during the whole of such travel.

–City Court of Louisville, KY., May 6, 1873.

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It is a legal, constitutional right to bear arms. The only restraint on the right is that they must not be concealed about the person. This restraint is removed, if the person has good reason to apprehend an attack.–R.C. § 3555. As an abstract legal proposition, it may be correctly asserted that if the appellant had good reason to apprehend an attack from the deceased, he had the right to arm himself for defense.

–Chief Justice [Robert C.] Brickell, Supreme Court of Alabama.

[Miller v. The State (Dec. Term 1875). Reports of Cases Argued and Determined in the Supreme Court of Alabama, During December Term, 1875, Ending July 31st, 1876. By Thomas G. Jones, State Reporter. Vol. LIV. Montgomery, ALA.: Published By Joel White. 1878.]

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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:

…This statute is the law of the land, and it is your duty and mine in a proper case to enforce. Its purpose is the protection of all citizens of the United Statesof every class and conditionin the exercise and enjoyment of their lawful and constitutional rightsIts operation is equal. Its prohibitions are directed to all personsits penalties fall upon all offenders against its provisions, of every race, condition, and party. No man who takes care not to invade the constitutional or lawful rights of another can be touched by itand it protects alike the rights of all. It applies to all parts of our country, and its provisions extend to every State and Territory in the Union.

It is a just and wholesome act, designed to promote peace and public order, to protect every citizen, whether lofty or lowly, rich or poor, learned or ignorant, in the free exercise and enjoyment of all the privileges and immunities which are granted or secured to him by the Constitution and laws of his countryAll classes of citizens whether white or black, without regard to race or previous condition, are interested in its enforcement. . . .

. . . When in the vicinity they asked for a conference with the colored people, which was granted and took place, (Columbus C. Nash speaking for the white men, and Levin Allen, a colored man, for his side.) Nash demanded that the colored men should give up their arms and yield possession of the courthouse. This demand was not acceded to by the colored men, and thirty minutes were given them to remove their women and children. The colored men took refuge behind their earthwork near the court-house, and at about 10, 11, or 12 o’clock, as variously stated by the witnesses, the firing began. The white men had a small piece of artillery mounted on wheels which, with their small arms, was used against the colored men, who responded with their shot-guns and Enfield rifles; of the latter they had about a dozen. A change in the position of their gun, made by the white men, gave them an enfilading the on the blacks, which demoralized them, and their line broke. A portion of them, leaving their arms, fled down the Red River, in the direction of a strip of woods, at Cuny’s Point, and were followed by mounted and armed whites, by whom many of them were overtaken and shot to death. The others, sixty or seventy in number, took refuge in the court-house. . . .

. . . The second count charges a banding together of the indicted parties with the intent to injure, oppress, threaten, and intimidate Nelson and Tillman, with the purpose to hinder and prevent them in the free exercise and enjoyment of their constitutional right to bear arms for a lawful purpose. . . .

. . . These are facts in this case as I understand them to be admitted. If these facts are conceded, or if you find them upon the evidence to be true, your range of inquiry will be much narrowed. . . .

. . . The right of peaceable assembly is one of the rights secured by the Constitution and laws of the United Stares. If citizens come together for a lawful and peaceable purpose, their assembling is within the meaning of the Constitution. The fact that they assemble with arms, provided these arms are to be used not for aggression but for their protection, does not make the assemblage any the less a peaceable one. . . .

. . . Next consider the intent of the banding and conspiring laid in the second count, which is alleged to be to intimidate, &c.. Nelson and Tillman, with the purpose to prevent their exercise of the right to keep and bear arms for a lawful purpos[e].

The right to bear arms is also a right protected by the Constitution and laws of the United States. Every 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 openly, and for his own protection, or for any other lawful purpose, has 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). ]

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The right of bearing arms for lawful purposes must be seen to by States, the constitution simply providing that Congress shall not infringe it; the sovereignty to protect lives and property lies exclusively in the States. The fourteenth amendment prohibits States from depriving any person of certain rights . . . The only obligation of the United States is to see that the States do not deny the right.

[New Orleans Republican, Re: U.S. Supreme Court Chief Justice Waite in U.S. v. Cruikshank et al,, March 27, 1876]

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I recommend that the statute against carrying arms be repealed . . . the right of the people to keep and bear arms shall not be infringed.

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It is the constitutional right of every citizen to bear arms. It is not only his privilege but his duty in view of the fact that liberty in its last analysis is but the blood of the brave. The theory of our government is that we are not to rely upon a standing army except as a nucleus of educated soldiers around which, as occasion requires, the citizens may rally for the defence of home and country. Citizen soldiers are never dangerous to liberty. They are but the people in their defensive armor–the phase they present and the attitude they take for the protection of their property, their families, and their dearest rights. They are our safety in trouble and at all times our pride–both our plume and shield.

–Brig. Gen. Samuel McGowan, Feb. 22, 1878 speech delivered to the Washington Artillery of Charleston. (Samuel McGowan was an Associate Justice of the South Carolina Supreme Court from 1879 to 1894.)

[The Abbeville Press And Banner, Abbeville, S.C., Wednesday, February 27, 1878. No. 38. Volume XXV. Pg. 2]

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The question here presented is one not free from difficulty and has given rise to some diversity of opinion. The right to keep and bear arms, thus secured to the people, has in this country always been regarded as one not to be slightly interfered with or infringed upon; and there can be no question but that any legislative enactment which deprived them of this right, would be obnoxious to the provision of the constitution which guarantees it, and would be absolutely null and void.

–THE SUPREME COURT, State of Missouri, defendant in error, vs. Frank Reando(?), plaintif in error.

[The State Journal, Jefferson City, MO. Friday, April 12, 1878. Vol. 6, No. 14. Pg. 2]

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. . . to prohibit a citizen from wearing or carrying a war armis an unwarranted restriction upon the constitutional right to keep and bear arms. 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 a general deprivation of a constitutional privilege.

[WILSON v. STATE, 33 Ark. 557.]

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…If, then, the arms-bearing right of the people is, as Blackstone says, an integral and inseparable part of their absolute rights as individuals, it follows that any and every constitution which assumes to protect life, liberty and property, necessarily insures the right of all the people to keep and bear arms, unless the contrary intention is clearly expressed, Hence the right is in nowise dependent upon the clause asserting that 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 right exists whether the constitution contains that clause or not. Our state constitution does not contain it, but nevertheless includes the right as part of the personal outfit of every freeman when it says, almost in the very language of the Declaration of Independence:

“All men are by nature free and independent, and have certain inherent and inalienble rights; among these are life, liberty, and the pursuit of happiness. To secure these rights and the prote[c]tion of property, governments are instituted among men:” Bill of Rights, Section 1.

–Opinion by Judge W.H. Barnum, Illinois–Cook County Circuit Court, People, Ex. Rel. Bielfeld, v. Affelt. [1879]

[The Criminal Law Magazine. A Bi-Monthly Periodical Devoted to the Interests of Bench and Bar in Criminal Cases. CONTAINING Original articles on timely topics, full reports of important cases, and a digest of all recent criminal cases, American and English. EDITORS: STEWART RAPALJE, of the New York Bar. ROBERT L. LAWRENCE, of the Jersey City Bar. Ignoranlia legia neminem excusal.” VOLUME I. JERSEY CITY: Frederick D. Linn & Co., Law Book Publishers. 1880.] (William Henry Barnum, As a jurist Judge Barnum evinced a broad knowledge of law and equity, a conscientious regard for the rights of all classes of litigants and fine executive ability in the dispatch of business.)

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It had long been firmly established by the common law that every individual member of the community or nation possessed by nature, and as the gift of God, three primary rights; namely, the right of personal security, right of personal liberty, and the right to acquire, hold, transfer property.

   These three great rights may be regarded as the upon which the whole superstructure of our laws is built; for it is the very object and aim, not only of the form of government we have adopted, but of the great body of laws, both civil and criminal, to maintain and enforce them.

   These rights are termed by the common law absolute rights, because they were supposed to be held and enjoyed independently of the government. The people, in giving up a portion of their natural liberty to establish a government, in consideration of receiving the advantages of mutual association and protection, retained these rights absolutely, considering them of so sacred a character that they should never be given up for any purposes whatever.

   It has always been most firmly and jealously insisted by our English ancestors that none of these rights could ever, on any pretence, be alienated, taken away, or infringed in the slightest degree, except by their own consent freely given, either immediately or through the medium of their representatives, and then only in the particular mode and manner which they prescribed. Nor was it ever doubted that such was the law; but we find in the history of our race that attempts were frequently made by ambitious kings and others to whom the governmental authority was intrusted, to violate or subvert them.

   Such attempts were, however, always resisted, even by force of arms; and it may with truth be said that every civil war and revolution which has occurred in England for many hundreds of years has been occasioned by tyrannical attempts of kings and parliaments to infringe these great natural rights. Finally, it is well known an attempt of this kind brought on the conflict which resulted in the separation of the American colonies from the parent state.

   A keen remembrance of the arduous contests which had been maintained by our ancestors for so long a period in the preservation of these great rights, is quite perceptible in several of the provisions introduced in our national and state constitutions. For though it is clear that no department of government in this country has any power given it to infringe or violate these rights, the framers of our constitutions, and especially of the earliest of them, were not content with merely withholding powers that might be dangerous, but insisted on inserting clauses positively prohibiting such arbitrary and unlawful acts as in their experience they had found so much difficulty in opposing.

   The right of personal security, as established by the common law, consists in a person’s legal right to the uninterrupted enjoyment of life, health, and reputation. As an additional safeguard for the preservation of this right, and in remembrance of oppressions that had been experienced in England, the constitution of the United States provides that the right of the people to keep and bear arms shall not be infringed; that their right to be secure in their persons and houses against unreasonable searches and seizures shall not be violated; and that no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

   Life, being the gift of God, is a right inherent by nature in every individual, and it follows, as a necessary consequence, that the right to the enjoyment of life includes a right to the means necessary to support it. Thus every individual is entitled to a sufficient portion of the fruits of the earth to preserve life, and no one and no class of persons are entitled to acquire or possess all to the entire exclusion of others. Upon this principle the indigent are supposed to be entitled to a support from the more opulent portion of the community. So also, every individual is entitled to be protected in the preservation of his health, and from such practices as may prejudice it. And as, in a state of society, the value of life depends much upon the reputation or good name of the individual, he is entitled to protection from slander and detraction.–Indiana Supreme Court Judge Thomas L. Smith.

[Elements of the Laws; Or, Outlines Of The System Of Civil And Criminal Laws In Force In The United States, And In The Several States Of The Union. Designed as a Text Book and for General Use, And To Enable Any One To Acquire A Competent Knowledge Of His Legal Rights And Privileges, All The Most Important Political And Business Relations Of The Citizens Of The Country; With The Principles Upon Which They Are Founded, And The Means Of Asserting And Maintaining Them In Civil And Criminal Cases. By Thomas L. Smith, Late One Of The Judges Of The Supreme Court Of The State Of Indiana. New And Revised Edition. Philadelphia J.B. Lippincott & Co. 1882. Pg. 54-56]

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The constitutional right is to bear arms openly, so that when one meets an armed man there can be no mistake about the fact that he is armed. When we see a man with musket to shoulder, or carbine slung on back, or pistol belted to his side, or such like, he is bearing arms in the constitutional sense. Of course there are other examples. These are but illustrations.”

–Chief Justice Manning, Louisiana Supreme Court,

[The State of Louisiana vs. Lacy Bias. State v. Bias, 37 La. Ann. 259 (1885). No. 9310.]

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And incorporated in the very fundamentals of every Constitution, of every State in this glorious Union, was sacredly preserved the right of the citizen to bear arms and to bear arms carried with them.

–Judge Francis H. Woods, Oct. 8, 1889.

[Annual Record of the Ancient and Honorable Artillery Company of Massachussets. 252nd Annual Record Pg. 14]

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Judge J.B. Kershaw charge to the Grand Jury, “According to the constitution of the United States, every citizen has a right to bear arms.”, April 1, 1891

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UNCONSTITUTIONAL

Judge J.H. Pitzer Declares The Law Prohibiting the Carrying of Firearms.

Probate Judge John H. Pitzer rendered a very important decision yesterday in the case of the Territory vs. Frank Rogers. Rogers was arrested for carrying a revolver on his person in violation of section 2405 of the statutes of Oklahoma and the case was set for hearing before Judge Pitzer. Attorney Frank Danford appeared for the defense and moved to have the case dismissed and the defendant discharged on the ground that that section of the Territorial statutes was unconstitutional, being in direct conflict with the second amendment which reads: “The right of the people to keep and bear arms shall not be infringed.” After having heard the argument the Judge took the case under advisement until yesterday morning, when he handed down his decision discharging the defendant and holding that section 2405 of the statute was unconstitutional.

This decision does not effect the section of the law that prohibits the carrying of concealed weapons. We believe the decision of Judge Pitzer will be sustained by the supreme court of the territory, for the section is clearly in violation of the constitution of the United States and it was so expressed by many members of the territorial legislature when it passed that body, and for fear it would be declared unconstitutional a separate section was passed prohibiting the carrying of concealed weapons.

–El Reno Democrat.

[The West Side Democrat. Enid, County O, Oklahoma, Tuesday, December 19, 1893 Volume 1. Number 13]

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This was a very close case, and, in our opinion, the court did not correctly and aptly state the law applicable to the real question upon the determination of which the guilt or innocence of the accused depended. If, at the very time of drawing his pistol, Fussell actually intended an attempt to take Dorminy’s life, the latter was justifiable in immediately drawing and using his pistol in self-defence; or if, when Fussell drew his pistol, his manner and conduct, and all the attending circumstances, were calculated to excite in Dorminy the fears of a reasonable man that an immediate deadly attack upon him was intended, he was likewise justifiable in drawing and using his pistol for his own protection, whether an attack upon his life was actually intended by Fussell or not. In either event, Dorminy would have been justifiable in promptly drawing and using his own pistol. If he was justifiable in firing at Fussell, the latter could not return the fire and legally claim to be acting in self-defence, for, by his own conduct, his right of self-defence would have been forfeited.

–Justice Lumpkin, SUPREME COURT OF GEORGIA, Fussell v. State,

[(Ga.) 19 S.E. Rep. 891, 1894.]

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Jackson, Miss., Nov. 28, 1895.
Editor of The Times-Democrat;

Reading your editorial on car[r]ying concealed weapons leads me to write that, after an experience of nearly a half century, in active connection with the enforcement of laws, my judgment is that all laws against carrying weapons are wrong and should be repealed. They cannot be enforced, and for that reason should not exist. They operate unequally and harmfully, by being a restraint on those in whose hands the weapons would be harmless and often useful, and imposing no restraint on those in whose hands they are dangerous and often destructive.

My view is that all should be free to carry arms, as they please, and that every girl especially should be taught to use them expertly. We would then hear less of rapes, and burglaries, and such crimes as so often occur, and there would not be a crime more by reason of the unrestrained right to carry arms.

It would prevent rather than promote crime. The man disposed to commit crime is never restrained by the law against carrying concealed weapons, while the good citizen ofted is, and is thus placed at a disadvantage, being at the mercy of the villain who assails him and is emboldened to do it by the confidence that his victim is unarmed.

J.A.P. CAMPBELL.*

[The St. Tammany Farmer, Covington, St. Tammany Parish, LA., Saturday, December 7, 1895. Vol. XX.–No. 50. Pg. 2]

* – Supreme Court of Mississippi Chief Justice J.A.P., (Josiah Arthur Patterson), Campbell. Chief Justice Campbell served 18 years on the Mississippi Supreme Court – 1876 to 1894. He wrote the Mississippi Code of Law which established legal and official White Supremacy. Chief Justice Campbell had both a white and black family, and spent most of the last 27 years of his life with his Black family teaching them how to break the system of White Supremacy. [See: The Father of White Supremacy by James Meredith, whom is the African American great grandson of Justice Campbell]

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LIFE UNSAFE IN ST. LOUIS.

Public Declaration to That Effect
Made by Four Judges
.

   St. Louis, Dec. 18. Judges Stevenson, Peabody, Wood and Withrow today declared publicly:

   “Robberies and assaults have come to be of such frequent occurrence that no one is safe. No person can be blamed for going armed in order to protect his life and property.” 

   This language reflects the condition that has prevailed in St. Louis for several weeks. highway robberies occur daily nightly in the heart of the city. So general has become the alarm among the denizens of the rural districts that a tremendous sale of firearms has been started.

   The E.C.Meacham Arms Company alone has sold 4,000 revolvers and 1,500 guns in the past four days. “While this firm had been conducting a clearance sale, its distribution of firearms has been relatively kept pace with by other hardware establishments.

[The Times, Washington, [D.C.] December 19, 1897. No. 1,341. Pg. 6]

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Section IV.– The Right To Keep And Bear Arms 

The Constitution.–By the Second Amendment to the Constitution it is declared that “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 amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the overturned dynasty in disarming the people, and as a pledge of the new rulers that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation. [1 ]

The Right is General.–It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than the mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet for voluntary discipline in arms, observing in doing so the laws of public order.”

[1] Tuck. Bl. Com. App. 300.

–Thomas McIntyre Cooley, The General Principles of Constitutional Law in the United States of America, Third Edition. 1898.

(Thomas McIntyre Cooley, LL.D., was the 25th Justice and a Chief Justice of the Michigan Supreme Court, and Dean of the University of Michigan’s Law School, and a nationally recognized scholar).

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. . . While the defendant had the right to carry his gun, and, also, had the right to be upon the public road, at the time and place where he and deceased came together, yet if he went to such place at such time, and with his gun, with the formed design of taking the life of deceased to avenge the wrongs done his sister and family, or to wreak vengeance upon the deceased because of the latter’s threats of that day, or previously, then the defendant was not free from fault, and cannot invoke self-defense, even if the jury should believe that deceased had drawn his pistol upon defendant before the latter fired and killed deceased, if the defendant at the time of the killing had not abandoned, but still entertained, such previously formed design. . . .

. . . There was and could have been no dispute about the defendant’s right to carry a shotgun, the trial involving only his right to use it against the deceased, and therefore the court could not be required to charge, as requested by charge 3, upon a matter foreign to the issue.

–Justice Sharpe, Gafford v. State. Supreme Court of Alabama. Jan. 11, 1899. [122 Ala. 54.]

[National Reporter System.–State Series. The Southern Reporter, Volume 25. Containing All The Decisions Of The Supreme Courts Of Alabama, Louisiana, Florida, Mississippi. Permanent Edition. March 22–June 28, 1899. St. PaulL: West Publishing Co. 1899.]

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Self-Defense and the United States Supreme Court:

  It was demanded by a great and overruling necessity. ….. This great law of necessity-of defence of self, of home, and of country-never was designed to be abrogated by any statute, or by any constitution.

– Mr. [(Formerly Major-General), Benjamin Franklin] Butler, ON THE SIDE OF THE UNITED STATES, EX PARTE MILLIGAN, U.S. Supreme Court, Dec. Term, 1866.

The court, in effect, said-or the jury may, not unreasonably, have understood the court as declaring-that preparation by arming, although for self-defense only, could not be followed, in any case, by manslaughter, if the killing, after such arming, was not, in fact, in necessary self- defense. Such we understand to be the meaning of the charge. In our opinion, the court erred in so charging the jury. If the accused was justified in the eye of the law in arming himself for self-defense,[Page 153 U.S. 183, 192] and if, without seeking, but on meeting, his adversary, on a subsequent occasion, he killed him, not in necessary self-defense, then his crime was that of manslaughter or murder, as the circumstances, on the occasion of the killing, made it the one or the other. If guilty of manslaughter, looking alone at those circumstances, he could not be found guilty of murder by reason of his having previously armed himself solely for self- defense.

– Mr. Justice HARLAN, U.S. Supreme Court, Gourko v. U.S., April 16, 1894.

…The principal question in the case arises out of those parts of the charge in which the court instructed the jury as to the principles of the law of self-defense…

…’A man may repel force by force in defense of his person, habitation, or property against one who manifestly intends and endeavors, by violence or surprise, to commit a known felony, such as murder, rape, robbery, arson, burglary, and the like, upon either. In these cases he is not obliged to retreat, but may pursue his adversary until he has secured himself from all danger; and if he kill him in so doing it is called justifiable self-defense…

– Mr. Justice HARLAN, U.S. Supreme Court, Beard v. U.S., May 27, 1895.

…The law has grown, and even if historical mistakes have contributed to its growth it has tended in the direction of rules consistent with human nature. Many respectable writers agree that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeeded the bounds of lawful self defence. That has been the decision of this Court. Beard v. United States, 158 U.S. 550, 559, 15 S. Sup. Ct. 962. Detached reflection cannot be demanded in the presence of an uplifted knife. Therefore in this Court, at least, it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety or to disable his assailant rather than to kill him…

– Mr. Justice [Oliver Wendell] HOLMES, U.S. Supreme Court, BROWN v. UNITED STATES, 256 U.S. 335 (1921).

Other United States Supreme Court Decisions concerning: The Right of [Armed] Self Defense:

Wiggins v. State Of Utah, Oct. Term, 1876

New Orleans & N. E. R. Co.. v. Jopes, Dec. 7, 1891

Allen v. U.S. Dec. 4, 1893

Gourko v U.S., April 16, 1894

Starr v. U.S., May 14, 1894

Thompson v. U.S., Dec. 3, 1894

Allen v. U.S., April 8, 1895

Beard v. U.S., May 27, 1895

Allison v. U.S., Dec. 16, 1895

Smith v. U.S., March 2, 1896

Alberty v. United States, April 20, 1896

Brown v. Walker, March 23, 1896

Stevenson v. U.S., April 13, 1896

Wallace v. U.S., April 20, 1896

Rowe v. U.S., Nov. 30, 1896

Patsone v. Com. Of Pennsylvania, Jan. 19, 1914

Adamson v. People Of State Of California, June 23, 1947

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