What The Courts Said

by Colonel Dan

The Cowboy Chronicle

May 2004



Last month we looked at the Founder’s intent underlying the Second Amendment. I think it’s fair to say their obvious purpose was to ensure that an individual’s right to keep and bear arms was never threatened or infringed by any government action.

So what have the courts said over the years about such a “radical concept?” Many times we’re told by anti-gun elements that the courts have maintained no individual right to keep and bear arms exists and we pro-gun advocates are just too stupid to understand the intricacies of constitutional law.

Have the courts universally denounced the individual’s right to keep and bear arms over the past 200 years and are you really too stupid to read and understand what the Constitution plainly says? To believe any of that anti-gun bilge, you’d have to be terminally stupid.

This month, let’s read a few examples of what several courts across the country and across history had to say in the years after the Constitution was adopted. As you did last month, please judge for yourself and draw your own conclusions.

One note before we start: I suspect you’ll never see any of these quotes or rulings either reported or cited on the evening news but that would be just a guess from my saddle…

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1803: George Tucker, Judge of the Virginia Supreme Court and U.S. District Court of Virginia in I Blackstone COMMENTARIES Sir George Tucker Ed., pg. 300 (App.)

“The right of self-defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest possible limits...and [when] the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”

1822: Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251

"For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution."

1846: Nunn vs. State, 1 Ga. (1 Kel.) 243, at 251

" The right of the people to keep and bear arms shall not be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right."

1859: Cockrum v. State, 24 Tex. 394, at 401-402

"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."

1871: Andres v. State, 50 Tenn. (3 Heisk) 165, 178

“....the right to keep arms necessarily involves the right to purchase them, to keep them in a state of efficiency for use, and to purchase and provide ammunition suitable for such arms, and to keep them in repair.”

“The rifle of all descriptions, the shot gun, the musket and repeater are such arms; and that under the Constitution the right to keep and bear arms cannot be infringed or forbidden by the legislature.” [ANDREWS V. STATE; 50 TENN. 165, 179, 8 AM. REP. 8, 14 (TENNESSEE SUPREME COURT)]

1876: The Supreme Court, in U.S. v. Cruikshank (92 U.S. 542)

Recognized that the right to arms preexisted the Constitution. The Court stated that the right to arms "is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence."

1878: Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54

"To prohibit a citizen from wearing or carrying a war arm . . . is 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 constitutional privilege."

1921: State vs. Kerner, 181 N.C. 574, 107 S.E. 222, at 224

"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."

1922: People vs. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928

"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."

2000: Tuesday, June 13th. Let’s fast-forward to the Clinton years of judicial activism and see how an attempt was made to unscrupulously bastardize this long venerated inalienable right by a dangerously anti-gun, anti-constitution administration in U.S. v. Emerson.

Early accounts from those who attended the week's oral arguments on U.S. v. Emerson (see FAX Alert Vol. 7, No. 23) revealed, with no uncertainty, how the Clinton-Gore Administration truly viewed our Right to Keep and Bear Arms. The attorney representing the government, William Mateja, said that the Second Amendment offers law-abiding U.S. citizens no protections against the government prohibiting them from owning any firearm. Judge William Garwood, one of three judges on the panel that heard arguments, had the following exchange with Mateja:

Judge Garwood: "You are saying that the Second Amendment is consistent with a position that you can take guns away from the public? You can restrict ownership of rifles, pistols and shotguns from all people? Is that the position of the United States?"

Meteja (attorney for the government): "Yes".

Garwood: "Is it the position of the United States that persons who are not in the National Guard are afforded no protections under the Second Amendment?"

Meteja: "Exactly."

Fortunately, the court rejected the Clinton-Gore argument—this time.

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It’s frightening how tenuous is the jewel of liberty and how easily it can be incrementally eroded if left unguarded by the people and totally entrusted to the Machiavellian machinations of insidious politicians.

James Madison had it pegged, "I believe there are more instances of the abridgement of the freedoms of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

It’s my uncompromising conviction that unless the people jealously guard our jewel at every turn and strongly reject any attempt to incrementally infringe on our freedom, we will eventually and unwittingly lose it—piece by little piece. Once it’s gone however, it’s gone for generations—generations that won’t even know what they’ve lost.

Just the view from my saddle…