William Rawle on the Second Amendment

NOTE:   The right judicially created by the Heller-McDonald cases does not extend beyond the curtilage (boundaries of the home).

I've been quoting William Rawle a lot lately since it is pretty much a given that there is no right to walk about carrying weapons in such a way that is likely to commit a disturbance of the peace  (see Blackstone, Commentaries on the Laws of England, Chapter XI. Of Offences Against the Public Peace).

William Rawle explains this in relation to the Second Amendment in his treatise "A View of the Constitution of the United States", 125--26 1829 (2d ed.):

"This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment."

In other words, people are well within their rights to call the police if they see someone carrying a weapon in public:  after all, that is the police's job to deal with people who could possibly be causing a breech of the peace.

In fact, there are some seriously good legal precedent that say someone carrying a weapon in public must give surety, or at least have some form of licence.

While the Cruikshank case isn't really useful for Second Amendment precedent, the Presser case sure as hell is where it says that the government has the right to licence the carrying of weapons outside the Militia context.

Also, it's interesting that people cite to Rawle and call his treatise a landmark text.  They even mention that Rawle says that the Second Clause is a corollary clause, yet they miss that the word "corollary" implies a relationship:

a statement that follows readily from a previous statement.

In other words, there is a relationship between the first and second clauses of the Second Amendment, whether people want to admit that these days.  The Miller Court reiterated that when it said, "With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

And, as Presser pointed out:

It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are [116 U.S. 252, 268]   authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.

I find it hard to say that carrying arms in public outside of the militia/national defence context is in any way a protected act by the Second Amendment.

Heller is wrongly decided and does not properly follow the Second Amendment Jurisprudence as set out by the Supreme Court.