Evolution of the Second Amendment

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Rock Defender [53]

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It's a little more than that. If you want a look at the

Jan 12, 2013, 10:14 PM

evolution of the 2nd Amendment and gun rights in America from one of the premier jurists in the U.S. (he also sits on the bench of the Seventh Circuit), check out this recent ruling from a Illinois case:

The appellants contend that the Illinois law violates
the Second Amendment as interpreted in District of Columbia
v. Heller, 554 U.S. 570 (2008), and held applicable to
the states in McDonald v. City of Chicago, 130 S. Ct.
3020 (2010). Hel l e r held that t he Second
Amendment protects “the right of law-abiding,
responsible citizens to use arms in defense of hearth
and home.” 554 U.S. at 635. But the Supreme Court has
not yet addressed the question whether the
Second Amendment creates a right of self-defense
outside the home. The district courts ruled that it does
not, and so dismissed the two suits for failure to state
a claim.

The parties and the amici curiae have treated us
to hundreds of pages of argument, in nine briefs.
The main focus of these submissions is history. The
supporters of the Illinois law present historical evidence
that there was no generally recognized private right
to carry arms in public in 1791, the year the Second
Amendment was ratified—the critical year for determining
the amendment’s historical meaning, according to McDonald
v. City of Chicago, supra, 130 S. Ct. at 3035 and n. 14.
Similar evidence against the existence of an eighteenthcentury
right to have weapons in the home for purposes
of self-defense rather than just militia duty had
of course been presented to the Supreme Court in
the Heller case. See, e.g., Saul Cornell, A Well-Regulated
Militia 2–4, 58–65 (2006); Lois G. Schwoerer, “To Hold and
Bear Arms: The English Perspective,” 76 Chi.-Kent L. Rev.
27, 34–38 (2000); Don Higginbotham, “The Second Amendment
in Historical Context,” 16 Constitutional Commentary
263, 265 (1999). The District of Columbia had
argued that “the original understanding of
the Second Amendment was neither an individual right
of self-defense nor a collective right of the states, but rather
a civic right that guaranteed that citizens would be able
to keep and bear those arms needed to meet their legal
obligation to participate in a well-regulated militia.”
Cornell, supra, at 2; see also Paul Finkelman, “ ’A Well
Regulated Militia’: The Second Amendment in Historical
Perspective,” 76 Chi.-Kent L. Rev. 195, 213–14 (2000);
Don Higginbotham, “The Federalized Militia Debate:
A Neglected Aspect of Second Amendment Scholarship,”
55 William & Mary Q. 39, 47–50 (1998); Roy G. Weatherup,
“Standing Armies and Armed Citizens: An Historical
Analysis of the Second Amendment,” 2 Hastings Constitutional
L.Q. 961, 994–95 (1975).

The Supreme Court rejected the argument. The
appellees ask us to repudiate the Court’s historical analysis.
That we can’t do. Nor can we ignore the implication
of the analysis that the constitutional right of armed selfdefense
is broader than the right to have a gun
in one’s home. The first sentence of the McDonald
opinion states that “two years ago, in District of
Columbia v. Heller, we held that the Second Amendment
protects the right to keep and bear arms for the purpose
of self-defense,” McDonald v. City of Chicago, supra, 130 S.
Ct. at 3026, and later in the opinion we read
that “Heller explored the right’s origins, noting that the
1689 English Bill of Rights explicitly protected a right
to keep arms for self-defense, 554 U.S. at 593, and that
by 1765, Blackstone was able to assert that the right
to keep and bear arms was ‘one of the fundamental rights
of Englishmen,’ id. at 594.” 130 S. Ct. at 3037. And immediately
the Court adds that “Blackstone’s assessment
was shared by the American colonists.” Id.

Both Heller and McDonald do say that “the need
for defense of self, family, and property is most acute”
in the home, id. at 3036 (emphasis added); 554 U.S. at
628, but that doesn’t mean it is not acute outside the home.
Heller repeatedly invokes a broader Second
Amendment right than the right to have a gun in
one’s home, as when it says that the amendment
“guarantee[s] the individual right to possess and
carry weapons in case of confrontation.” 554 U.S. at 592.
Confrontations are not limited to the home.

The Second Amendment states in its entirety 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” (emphasis added).
The right to “bear” as distinct from the right to “keep”
arms is unlikely to refer to the home. To speak of “bearing”
arms within one’s home would at all times have been
an awkward usage. A right to bear arms thus implies
a right to carry a loaded gun outside the home.

And one doesn’t have to be a historian to realize that
a right to keep and bear arms for personal self-defense
in the eighteenth century could not rationally
have been limited to the home. Suppose one lived in
what was then the wild west—the Ohio Valley for example
(for until the Louisiana Purchase the Mississippi
River was the western boundary of the United States),
where there were hostile Indians. One would
need from time to time to leave one’s home to
obtain supplies from the nearest trading post, and en
route one would be as much (probably more) at risk
if unarmed as one would be in one’s home unarmed.
The situation in England was different—there was
no wilderness and there were no hostile Indians and
the right to hunt was largely limited to
landowners, Schwoerer, supra, at 34–35, who were
few. Defenders of the Illinois law reach back to the
fourteenth-century Statute of Northampton, which provided
that unless on King’s business no man could “go nor
ride armed by night nor by day, in Fairs, markets, nor in
the presence of the Justices or other Ministers, nor in no
part elsewhere.” 2 Edw. III, c. 3 (1328). Chief Justice Coke
interpreted the statute to allow a person to possess weapons
inside the home but not to “assemble force, though he
be extremely threatened, to go with him to church,
or market, or any other place.” Edward Coke, Institutes of
the Laws of England 162 (1797). But the statute enumerated
the locations at which going armed was thought
dangerous to public safety (such as in fairs or
in the presence of judges), and Coke’s reference to “assemble
force” suggests that the statutory limitation of the
right of self-defense was based on a concern with armed
gangs, thieves, and assassins rather than with indoors
versus outdoors as such.

In similar vein Sir John Knight’s Case, 87 Eng. Rep. 75,
76 (K.B. 1686), interpreted the statute as punishing
“people who go armed to terrify the King’s subjects.”
Some weapons do not terrify the public (such
as well-concealed weapons), and so if the statute was (as
it may have been) intended to protect the public
from being frightened or intimidated by the
brandishing of weapons, it could not have applied to
all weapons or all carriage of weapons. Blackstone’s
summary of the statute is similar: “the offence of riding
or going armed, with dangerous or unusual weapons, is
a crime against the public peace, by terrifying the good
people of the land.” 4 Commentaries on the Law of England
148–49 (1769) (emphasis added). Heller treated
Blackstone’s reference to “dangerous or unusual weapons”
as evidence that the ownership of some types of
firearms is not protected by the Second Amendment,
554 U.S. at 627, but the Court cannot have thought all
guns are “dangerous or unusual” and can be banned,
as otherwise there would be no right to keep a handgun
in one’s home for self-defense. And while another
English source, Robert Gardiner, The Compleat Constable
18–19 (3d ed. 1707), says that constables “may seize
and take away” loaded guns worn or carried by persons
not doing the King’s business, it does not specify
the circumstances that would make the exercise of
such authority proper, let alone would warrant a prosecution.

Blackstone described the right of armed self-preservation
as a fundamental natural right of Englishmen, on
a par with seeking redress in the courts or petitioning
the government. 1 Blackstone, supra, at 136,
139–40. The Court in Heller inferred from this that
eighteenth-century English law recognized a right
to possess guns for resistance, self-preservation, selfdefense,
and protection against both public and
private violence. 554 U.S. at 594. The Court said that
American law was the same. Id. at 594–95. And in
contrast to the situation in England, in less peaceable
America a distinction between keeping arms for selfdefense
in the home and carrying them outside the home
would, as we said, have been irrational. All this is debatable
of course, but we are bound by the Supreme
Court’s historical analysis because it was central
to the Court’s holding in Heller.

Twenty-first century Illinois has no hostile Indians.
But a Chicagoan is a good deal more likely to be
attacked on a sidewalk in a rough neighborhood than in
his apartment on the 35th floor of the Park Tower.
A woman who is being stalked or has obtained a
protective order against a violent ex-husband is more
vulnerable to being attacked while walking to or from
her home than when inside. She has a stronger self-defense
claim to be allowed to carry a gun in public than
the resident of a fancy apartment building (complete with
doorman) has a claim to sleep with a loaded gun under
her mattress. But Illinois wants to deny the former claim,
while compelled by McDonald to honor the latter.
That creates an arbitrary difference. To confine
the right to be armed to the home is to divorce the Second
Amendment from the right of self-defense described
in Heller and McDonald. It is not a property right—a right
to kill a houseguest who in a fit of aesthetic fury tries
to slash your copy of Norman Rockwell’s painting
Santa with Elves. That is not self-defense, and this case
like Heller and McDonald is just about self-defense.

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It's a little more than that. If you want a look at the

I'm not really interested in jurisprudence.

I understand your point, but jurisprudence is

Not really. Right is right, no matter what judges say.***

F^CUK AMERIKA***

Yes, but you can still be arrested, tried, and convicted

Well of course. This post and this discussion is about

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