Sunday, August 24, 2014

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.


  1. "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."

    You have a reading comprehension problem or you are skipping over the conditioning phrases in your own quotes. Each instance is noted that other factors beside simply carrying the weapon have to be present to make the act of carrying the weapon illegal. There has to be an unlawful purpose to the gathering.

    You state that people are free to call the police if they see someone with a weapon and yes they are. However, the police are not at liberty to arrest or detain a lawful weapon carrier if they are not breaking any laws. So the police officer will approach the person (maybe) and determine if they are breaking any laws. If not, the person with the weapon is free to go about their business.

    1. Actually, I am not skipping over "the conditioning phrases in my own quotes".

      The question is whether it is normal for one to go grocery shopping or some other activity in a peaceful society openly carrying a weapon.

      There is more than enough of an opinion that it is NOT.

      In fact, isn't the concept of open carry to somehow try to "normalise" this activity and "educate" people? To say that is to concede that this is NOT what normal people do.

      Additionally, the fact that open carriers do this with the intent of getting a police response says, to me at least, that you know deep down that this is not normal.

      The fact that you claim to not be doing it with an intent to breech the peace isn't really enough if the general public doesn't trust you to be walking about with a gun in public. In that case, you ARE breaking the law by disturbing the peace.

      And, yes, the police have the right to detain you if you give them probable cause that you might break the law. A person walking about armed in circumstances which are not normal or expected definitely fits the bill to me.

  2. Ah hah. But when anything that is not normal or usual happens enough, it's starts to be a new normal to the point that not doing a thing then becomes not normal. As people's attitudes and practices change, you also see a shift in society. An acceptable shift that defines the rights of that society.

    At one time driving and owning a car was usual as it scared the horses and people. Now if you ride a horse for transportation, you are committing an unusual act. You need a car.

    1. Open carrying guns will never be the new norm. Even many gun rights advocates oppose the practice. I actually love it because it does your movement more harm than good, it shows people what lunatics you are.

    2. Nothing new about open carry. It was the norm in the 19th century, but society learned that practice only caused more gun shot deaths. For the next 100 years open carry was not the norm. It's still not the norm, but more people are carrying and more people are dying from gun shot deaths than ever before. Open carry is inviting more gun shot deaths.

    3. Yet all 50 states have some form of license to carry now. The same was said about that too, never happen. From one to four states that have constitutional carry, another that couldn't happen. States that recently went open carry like Georgia and Oklahoma and others with no issues following their passage but had dire predictions of flowing blood. Still other recent changes in some state laws that recognize all states license to carry, including Vermont, who doesn't issue but a Vermont ID is good to go in those states that universally recognize. The majority of the state's already have open carry and most do not require a license. A large majority.

      Mike, you are looking more and more like the lunatic by denying these changes possible while they are in fact happening.

      And with Laci's recent flurry of flawed legal and Constitutional posts tells me she is just as panicked about changes she doesn't agree with and can do nothing to stop it because this is the people's will being born out.

      None of the changes could ever happen if the majority didn't want it and you damn well know it.

    4. Citation needed for all that bullshit.

    5. "Mike, you are looking more and more like the lunatic by denying these changes possible while they are in fact happening. "

      Where have I ever denied the gun-rights victories of recent years? What I say is the pendulum swing has about reached its limit. The balance on the Supreme Court needs to change and gradually the pendulum will swing back. People are getting fed up with you gun nuts and your ridiculous ideas. Young people especially are never going to go along with your bullshit. Mexican immigrants and other minorities are on the gun control side. The future for you nuts looks bleak, that's what I say.

    6. You assume way too much. First off young people are taking up arms in unprecedented numbers. Illegal immigrants have no say because they don't belong here in the first place. LEGAL immigrants have won several battles in the states in which they reside to get their carry permits, New Mexico being the latest example. 2A battles are continuing to be won and the pendulum has only begun to swing in our direction.

      Wishful thinking will not help you Mike.

    7. Mine is not wishful thinking. Younger people are not "taking up arms in unprecedented numbers." What kooky universe are you living in - oh, never mind, I know the answer to that.

    8. Denying facts do not change them Mike. You want to live in some imagined utopia that exists only in your own mind. Yes Mike, again with tons of proof, young people are becoming a growing majority of gun owners and very active in their practice, use, and carry licenses.

      So yes, yours is wishful thinking, facts are at your finger tips. All you have to do is a little research and reading at any of this country's state websites to see the numbers that contain the age, gender and race of granted licenses. Stand around any gun store any where and look at who is buying for the first time their own gun. Observation and reading Mike, it will help you out of your dream world.

    9. Send us a link supporting that nonsense - and please not from a pro-gun source.

    10. I am not your research assistant. You can look up each states statistics just as easily as I can. Go for it.