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Date: Sat, 03 Dec 2011 21:43:40 -0500
From: "James M. Atkinson" <jm..._at_tscm.com>
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Subject: Suggestions? (from a recent Court FIling)
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Atkinson v. Town of Rockport, et al 11cv11073-NMG
So doe THIS short presentation on the matter make the situation a whole
lot more clear?
8. The right to arms is understood by all Americans, and recognized by
law to be a right, a privilege, and/or immunity of citizenship of the
United States.
9. The right to arms is so deeply ingrained into American society and
such a widely recognized right that on the written examinations for a
person to become a naturalized citizen of the United States that two of
the questions in the body of 100 questions actually involves the
sanctity of the right of members of the public to keep and bear arms.
10. The U.S. Supreme Court has ruled that the 2nd Amendment right to
keep, and to bear or carry arms applies to the States by virtue of
application of the 14th Amendment, and thus neither the Federal
Government, nor any state agency, nor agent of the state may interfere
with the unqualified right to keep and bear arms.
11. Second Amendment rights are no different then First Amendment
rights, nor the 4th, 5th, 6th, 7th, 8th, 9th, or 14th Amendments, nor
for that matter any other part of the Constitution or Bill of Rights.
12. The government cannot exercise prior restraint in either matters of
the First Amendment, nor in matters of the Second Amendment.
13. The government (neither State, nor Federal) may not prohibit the
possession of a high volume printing press any more then they may
prohibit a high capacity firearm magazine, a high capacity feeding
device for a firearm, a high capacity firearm, nor a high capacity or
low capacity assault weapon.
14. A high volume printing press in and of itself is no more or less
dangerous than a high capacity firearm or a high capacity firearm
magazine. In both cases, a citizen is responsible for the use or misuse
of either, but the government may not impose prior restraint on either.
15. A printing press, arms of various sorts, and holy books are all
equally protected under the Bill of Rights. Not the States, nor the
Federal Government may outlaw or license a religion, may not mandate a
certain thickness or page count of the Holy Bible, nor the scripting of
prayers by the faithful, define the size of a Prayer Rug, mandate that
Mass be spoken in High Latin or English, nor impose the desires of the
Government in regards to religion or political choices, nor may they
impose undue control or restraint on the keeping and bearing of arms, or
of the press.
16. All firearms, arms, ammunition, accessories, or attachments utilized
by law enforcement for individual defense of the officer or for entering
homes, buildings, or vehicles are suitable examples that these same or
similar weapons are well suited for defense of the home of citizens.
17. The firearm itself, the configuration of the magazines, of feeding
devices, the ammunition used, and the manner in which it is deployed by
police officers are all evidence that a weapon is well suited for home
defense by the citizens.
18. By their very design, firearms are dangerous, they are supposed to
be dangerous, and they are supposed to be deadly, any fool knows this.
People train to become proficient with arms in order to use them in a
dangerous and controlled manner, and in some cases a deadly manner. Any
assertions that a particular modern arm is more or less dangerous then
another is sheer and utter lunacy.
19. The “dangerousness” of any particular firearm lies in the intent of
the hands that wields it, and if those hands have evil intentions and
they lack access to one type of arm then they will turn to other weapons
and arms that are equally or more dangerous than firearms, but more
available to them.
20. Even a very small automobile or truck is dramatically more
dangerous, as a lethal weapon than a firearm, pistol, revolver, shotgun,
rifle, sniper rifle, or other related arms. The energy and mass of a
moving motor vehicle exceeds that of a bullet or pellet by many orders
of magnitude. Anybody who has professional training on arms and of the
tactical use of vehicles, or of combat driving, or protective driving
understands this well. Students at numerous government schools are
actually taught to utilize motor vehicles as readily available weapons,
and as a weapon that is dramatically more deadly than a firearm, or
other kinds of weapons or arms.
21. A high capacity magazine or feeding device is protected under the
2nd and 14th Amendment, the government may not dictate any aspect of the
arms that a person may choose for defense, not the ammunition feeding
device or magazine, nor the type of ammunition used.
22. The U.S. Military and the municipal police officers routinely carry
firearms with 15, 19, 20, 30, and even 40 round ammunition magazines,
and there is no legitimate reason to obstruct the law abiding public
from possessing or carrying the same things.
23. The U.S. Supreme Court affirms this right, immunity, and privilege
in both District of Columbia v. Heller, 554 U.S. 570, 592 (2008), and
McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, 3026 (2010)
decisions. Hence, no State may restrict, control, or license or restrict
high capacity magazines, high capacity feeding devices, or any form of
high capacity firearm.
24. In District of Columbia v. Heller in 2008, the U.S. Supreme Court
also forcefully embraces the sanctity of the individuals “right of
law-abiding, responsible citizens to use arms in defense of hearth and
home,” and hence unqualified possession of such arms within the sanctity
of the home or business.
25. In McDonald v. Chicago (2010) the court further clarified the
decisions, opinions and rulings in Heller, but further widened its very
strong application to the many states (including the Commonwealth of
Massachusetts), and commented on the matter with even greater force.
26. Hence, because of Heller (2008) a firearm possession in the hearth
and home is strongly constitutionally protected, and any common search
or seizure techniques to search for arms due to mere suspect possession
of arms (absent the person being a convicted felon, or adjudged mentally
defective, or a crime having been committed with the arms) infringes, or
unduly burdens and infringes on the exercise of the Second Amendment
rights of the Plaintiff. Thus, the police can not search a citizens home
merely to ferret out arms, merely because they are possessed, or alleged
to be possessed as such possession or alleged possess is indeed
protected under the Bill of Rights, and a defacto civil right.
27. Further, as these weapons may be possessed inside the home, absent
any form of licensure (beyond that of the possessor being a U.S.
Citizen, who is not a convicted felon, nor adjudged mentally insane),
the State nor police may not seek a search warrant, nor may probable
cause be found that a crime had been committed merely because lawfully
obtained arms are suspected to be present in the home. Essentially, the
possession of arms, is not in and of itself a crime, unless those arms
where used in a secondary criminal act (or the person is a convicted
felon, or adjudged insane in a court of law).
28. James Wilson, Associate Justice of the U.S. Supreme Court, principal
author of the 1790 Pennsylvania Constitution, and a member of the
Philadelphia Convention stated:
“Homicide is enjoined, when it is necessary for the defence of one's
person or house. With regard to the first, it is the great natural law
of self-preservation, which, as we have seen, cannot be repealed, or
superseded, or suspended by any human institution.
This law, however, is expressly recognized in the constitution of
Pennsylvania.”
“The right of the citizens to bear arms in the defence of themselves
shall not be questioned." This is one of our many renewals of the Saxon
regulations. " They were bound," says Mr. Selden, "to keep arms for the
preservation of the kingdom, and of their own persons.”
29. Consider that any weapon used by a SWAT team for home or business
entries of a tactical nature and/or raids is strong evidence that the
same weapon is particularly well suited for home defense. Otherwise,
logically, the SWAT Team would not be using such weapons.
30. Logically then, any and all firearms which a law enforcement
officer, or SWAT team member, would normally carry on a day to day basis
or deploy anywhere in the country, or which is endorsed for, sold for,
endorsed as, or in any way considered as a firearm suited for individual
law enforcement officers to carry or use is prima facia evidence that it
is suitable for home defense as it is generally accepted as safe for
citizens to keep, to carry, or to bear. The same holds true of any
firearm, magazine, feeding device, or ammunition in common use by law
federal, state, and local law enforcement officers, or the military, or
intelligence officers.
31. Under the equal protection clause of the Bill of Rights (14th
Amendment), the police are not entitled to any greater or lesser
protection than that of the common law abiding citizen in regards to
arms. Nor may any law-abiding citizen be denied the ability to keep arms
identical to, or similar to those carried by the police of the military.
In effect, by application of the Equal Protections clause of the 14th
Amendment the citizens of the United States and the Commonwealth of
Massachusetts are in fact allowed to possess all arms, up to and equal
to those issued to, carried by, authorized by, or used by members of law
enforcement or the various states or Federal agencies, or Military.
Thus, if a police officer or soldier is permitted to possess or carry a
type of arm, then so are members of the public.
32. In McDonald v. Chicago, Justice Thomas states that:
“African Americans in the South would likely have remained vulnerable to
attack by many of their worst abusers: the state militia and state peace
officers. In the years immediately following the Civil War, a law
banning the possession of guns by all private citizens would have been
nondiscriminatory only in the formal sense. Any such law—like the
Chicago and Oak Park ordinances challenged here—presumably would have
permitted the possession of guns by those acting under the authority of
the State and would thus have left firearms in the hands of the militia
and local peace officers. And as the Report of the Joint Committee on
Reconstruction revealed, see supra, at 24–25, those groups were widely
involved in harassing blacks in the South.”
33. The U.S. Supreme Court ruling in Heller and in McDonald allows the
occupant of the home to determine which firearms are primarily useful
for home defense, and does not allow the government to dictate which
weapons be kept, or used in this regard. In fact, the law permits the
possession and use of not only firearms, but also that of any arms
available to the person.
34. This weapon selection is highly personal, and can range from little
more then a pointy stick, to an edged weapon, a bayonet, a sword or
cutlass, or if they so choose a firearm of the sort they feel is most
suitable.
35. Conversely, should a citizen feel strongly against the keeping, or
the bearing of arms they are well within their rights not to possess or
to carry same, but they may not impose their religious, philosophical,
and social choices regarding arms, or self-defense upon other citizens.
36. The state however, may not restrict the mere possession or “keeping”
of arms, nor can the state restrict the “bearing of arms” by normal law
abiding citizens, and as per the Supreme Court; at most the State may
only control the manner in which they are carried with a minimum of
interference or control. The state is thus prohibited from imposing any
kind of “licensing” or “permitting” scheme to either possess or to carry
arms.
37. The state may not prohibit the keeping, carrying, or bearing arms,
but may, within very narrow considerations which involve the mode by
which the arms may be carried. The state may not for example mandate
that the firearm be carried in an unloaded condition, as this would
violate the Heller decision. Thus, a citizen is allowed to maintain
their arms, fully loaded, and readily available to use, and carried in a
way that permits rapid access and deployment. This then restricts the
state into mandating that arms may be openly carried, or carried
concealed, or otherwise carried covertly, but it does not permit them to
prohibit peaceable carriage of such loaded arms.
38. The State could in theory under Heller, mandate for public carrying
or bearing of firearms; that a “high ride” style pistol holster should
be used, or that a “drop rig” style of holster is mandated, or perhaps
even require “retention” or top strap styles of holster, so long as none
of these holsters unduly restrained the citizens access to, and
deployment of the said firearm, but they may in no way restrict or
control the actual act of carrying or bearing of said arms.
39. A prudent, law abiding citizen, who is well trained in arms will
tend to prefer a concealed firearm, that is worn on a hip mounted
“pancake” style of holster called a “high ride”, which contains slots by
which it may be mounted with a slight angle towards the angle of the
weapon being drawn against an assailant, and the holster containing a
type of top strap or snapping fastener to ensure that the weapons does
not accidently become dislodged from the holster. Such mode of carriage
is considered “polite, and socially acceptable” as the open display of
arms is socially impolite, socially offensive in some geographic areas,
and inferior from a tactical perspective.
40. At most, the state may impose certain controls to keep arms out of
the hands of convicted felons or those who are adjudged insane, but they
may not (under our current form of government) otherwise control,
license, or ban arms.
41. The Bill of Rights, and the interpretations and decisions of the
U.S. Supreme Court does not permit the state to prohibit the possession
of a Holy Bible, the Torah, or the Quran, or any other holy book which
the state may not like, but may control the retail sale of such to a
very limited extent. Nevertheless, the State cannot control or license
mere possession nor use of said holy books.
42. There is no requirement under the law to obtain a license of any
sort for a holy book of any religion or denomination, not a Bible, not a
Sermon Book, not a Prayer Book, not a Psalm book, or a Crucifix, or
prayer rug, not Statues, not candles, not high capacity church pews, not
ornate prayer rugs, not pipe organs, not grand pianos, not banners, not
musical instruments, nor Arks, not standards, not religious iconography,
not bells, not chalices, not fonts, not baptisms, not incense, not
crosses, not religious symbols, not stained glass, not wafers, not
hosts, not a hiram, not relics, not a Yarmulkah or Yarmulke, nor Chalice
Paten, nor Communion Paten, nor Ciborium, nor Host Box, nor Missal, nor
Chasuble, nor Albs, nor Altar Cloths, nor Purificator, nor Finger
Towels, nor Bread Trays, nor Cup Trays, nor Bema, nor Shulcahn, nor Ner
Tamid, nor Corporals, nor Amices, nor Palls, nor Cincture, nor Oil
Stock, nor Pyx, nor Menorah, nor Kiddush Cup, nor Vademecum, not head
dresses, not a hijab, not vestments, nor Tallit or Tallis, nor choir robes.
43. Neither is any government permission or license, or ID card (which
is a defacto license if it can be revoked) required for keeping Holy
Bibles or other religion artifacts in ones home, or to bear them up or
carry them in practice of ones chosen religion.
44. The Bill of Rights, and the interpretations and decisions of the
U.S. Supreme Court does not permit the state to prohibit the possession
of a modern printing press (or Holy Bible) which the state may not like,
but may control the retail sale of such a press should it be overly
dangerous to operate, or should the Holy Bible be printed of plastic
explosive sheets, pressed gun cotton, flash paper, or be in an
inherently dangerous form. However, the State cannot control or license
mere possession of said printing press (nor of the Holy Bible), nor for
that matter arms of various types.
45. There is no requirement under the law to obtain a license of any
sort for a printing press ownership, not for a quill pen, not a bottle
of ink, not a fountain pen, not a sheet of paper, nor an inkjet printer,
or even a high capacity laser printer, nor high capacity word processor,
nor even a super computer. Not typefaces, not type, not metal plates,
not inking pads, nor composing sticks, not type cases, nor other tools
of the printing trade.
46. Neither is any government permission or license, permit, or ID card
(which is a defacto license if it can be revoked) required to keep arms
in ones home, or to bear them up or carry them in defense of others, or
even in defense of the State.
47. The Second Amendment “guarantee[s] the individual right to possess
and carry weapons in case of confrontation,” District of Columbia v.
Heller, 554 U.S. 570, 592 (2008), and is “fully applicable against the
States,” McDonald v. Chicago, 561 U.S. ___, 130 S. Ct. 3020, 3026 (2010).
48. However, the Commonwealth of Massachusetts and the Attorney General
of Massachusetts steadfastly refuses to update the statutes of
Massachusetts to reflect either the District of Columbia v. Heller and
McDonald v. Chicago U.S. Supreme Court decisions.
49. The Commonwealth continues to arrogantly, and illegally ignore both
the Constitution of the United States, the Bill of Rights, and the
decisions of the Supreme Court, to the level that the Commonwealth
exhibits an attitude, and conducts legal matters related to firearm with
utter disregard for the civil rights of the citizens, complete, willful
arrogance in regards to the 2nd and 14th Amendments, and even bolder
affront to the U.S. Supreme Court, and even the Constitution of the
Commonwealth of Massachusetts, whereby the Commonwealth now chooses
merely to ignore the rulings by this nations highest court, and to
harass, molest, arrest, charge, indict, and incarcerate citizens who are
lawfully in possession of arms.
50. The Commonwealth of Massachusetts further demonstrates their evil
intentions by foisting a ruse of various licensing scheme that exists
for no reason but to deprive law-abiding citizens of defensive arms in
their home or businesses, or even their person; and to infringe upon the
civil rights of peaceable U.S. Citizens.
CONSTITUTIONAL PROVISIONS
AND PRIOR CASE LAW
58. The Constitution of the United States was adopted on September 17,
1787, by the Convention in Philadelphia, Pennsylvania, and ratified by
conventions in each U.S. state in the name of "The People." The
Constitution has been amended twenty-seven times; the first ten
amendments are known as the “Bill of Rights.”
59. The Constitution of the United States was ratified by the
Commonwealth of Massachusetts on February 6, 1788, with a vote of 187
for, and 168 against, and thus became law.
60. The founders of our nation, many of whom were from Massachusetts,
thought that the right to bear arms was essential to freedom.
61. At the Massachusetts Constitutional convention in 1788 Samuel Adams
opined, “The said Constitution [shall] be never construed to authorize
Congress to infringe the just liberty of the press, of the rights of
conscience; or to prevent the people of the United States, who are
peaceable citizens, from keeping their own arms.”
62. Another well-known statesman of the Commonwealth, Elbridge Gerry,
warned in 1789, “What sir is the use of the militia? It is to prevent
the establishment of a standing army, the bane of liberty.... Whatever
Government means to invade the rights and liberties of the people, they
always attempt to destroy the militia in order to raise a standing army
upon its ruins.”
63. The Bill of Rights was introduced by James Madison to the 1st United
States Congress in 1789 as a series of legislative articles and came
into effect as Constitutional Amendments on December 15, 1791, through
the process of ratification by three-fourths of the States.
64. “Nothing can destroy a government more quickly than its failure to
observe its own laws, or worse, its disregard of the charter of its own
existence.” U.S. Supreme Court in State v. Athan, 2007
65. On March 2, 1792, Massachusetts became the 12th state to ratify the
Bill of Rights, which included provisions for the public to be allowed
to keep, and to bear or carry arms; to practice the religion or faith of
their choosing, if any; and should they be so industrious to be allowed
to obtain a printing press, and to operate either for their own
edification, or to the edification of others.
66. Thusly, in 1792 the Commonwealth of Massachusetts passed into law,
and excepted that a “Holy Trinity” of sorts was formed whereby the
Commonwealth of Massachusetts could no longer infringe upon the citizens
right to matters of faith, arms, or of the press.
67. In must be noted, that the Commonwealth of Massachusetts was
historically one of the nations greatest offender of human rights in
regards to matters of faith or speech, and great Salem Witch Trials,
illegal acts and laws against the Quakers, and religious persecutions in
later years is a well-documented, and shameful blemish upon the very
soul of the State.
68. The Second Amendment of the Constitution (the Bill of Rights)
provides the unqualified right:
“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.” - U.S. Constitution Amendment II.
69. The Second Amendment guarantees individuals a fundamental right to
carry operable arms in all non-sensitive public places for the purpose
of self-defense.
70. The Fourteenth Amendment was ratified and passed into law on July 9,
1868. Thus the 14th Amendment was accepted by the Commonwealth of
Massachusetts as law.
71. Under Section 1 of the Fourteenth Amendment, the Bill of Rights
(including the 2nd Amendment), must be obeyed by the Commonwealth of
Massachusetts, and others, and forbids the making or enforcing any law
which infringed on any immunities or privileges of citizenship:
“All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”
72. The Fourteenth Amendment incorporates the requirements of the Second
Amendment against the States and their units of local government, and
political sub-divisions. McDonald v. Chicago, 561 U.S. ___, 130 S. Ct.
3020, 3042 (Jun. 28, 2010).
73. Thus, the Commonwealth of Massachusetts is prohibited from making or
enforcing any law, which abridge the privileges or immunities of
citizens to keep, carry, and to bear arms of their choosing (with
extremely narrow limitations). Thus, any such laws are automatically
null and void, moot, and an infringement of the privileges or immunities
of citizens of the United States.
74. In explaining why examining the history of the right to bear arms in
England was necessary, the Heller the Court stated that
"it has always been widely understood that the Second Amendment, like
the First and Fourth Amendments, codified a pre-existing right.''
And, in further describing the scope of the Second Amendment, the Court
again pointed to the First Amendment for several direct analogies, all
indicating similarities rather than differences between the two
provisions: Heller, 128 S. Ct. at 2791-2792
“Just as the First Amendment protects modern forms of communications ...
the Second Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in existence at the
time of the founding. The First Amendment contains the freedom-of-speech
guarantee that the people ratified, which included exceptions for
obscenity, libel, and disclosure of state secrets, but not for the
expression of extremely unpopular and wrong-headed views. The Second
Amendment is no different. “
“There seems to us no doubt, on the basis of both text and history, that
the Second Amendment conferred an individual right to keep and bear
arms. Of course the right was not unlimited, just as the
First Amendment's right of free speech was not.... Thus, we do not read
the Second Amendment to protect the right of citizens to carry arms for
any sort of confrontation, just as we do not read the First Amendment to
protect the right of citizens to speak for any purpose. “
75. The Supreme Court in District of Columbia v. Heller confirmed that
the categorical ban of arms in common use by law-abiding citizens could
not survive “any of the standards of scrutiny that [the Court has]
applied to enumerated constitutional rights.” 554 U.S. 570, 627-628
(2008). The Court’s opinion in Heller is not simply limited to
protection of handgun ownership. The Court further stated:
“…the conception of the militia at the time of the Second Amendment's
ratification was the body of all citizens capable of military service,
who would bring the sorts of lawful weapons that they possessed at home
to militia duty. It may well be true today that a militia, to be as
effective as militias in the 18th century, would require sophisticated
arms that are highly unusual in society at large. Indeed, it may be true
that no amount of small arms could be useful against modern-day bombers
and tanks. But the fact that modern developments have limited the degree
of fit between the prefatory clause and the protected right cannot
change our interpretation of the right.”
Id. at 2817. Furthermore, the choice of something other than a handgun
has been recognized as and would be indicative of an acceptable means
for self-defense. Thompson v. United States, 155 U.S. 271, 279 (1894)
(employment of a rifle for the purpose of self defense).
76. If those interpretations were not enough, the Heller Court also
quotes approvingly from an 1825 Massachusetts Supreme Judicial Court
opinion and an 1868 constitutional law treatise that make the direct
analogy between the right to bear arms and the freedom of the printing
press: Commonwealth v. Blanding, 20 Mass. (3 Pick.) 304, 313-14 (1825))
“The liberty of the press was to be unrestrained, but he who used it was
to be responsible in cases of its abuse; like the right to keep
firearms, which does not protect him who uses them for annoyance or
destruction.”
“The [Second Amendment] clause is analogous to the one securing the
freedom of speech and of the press. Freedom, not license, is secured;
the fair use, not the libelous abuse, is protected.”
77. Thus, a license of any sort forms at its core a type of basic
infringement, or granting of permission from a government entity, and
not a defacto freedom. A license may be controlled, revoked, suspended,
manipulated, and used as a means to control the acts of the holder of
such a license.
78. A license and a freedom are not in fact the same thing; the license
is a mechanism of constraints and controls, the “freedom” that of
enablement and empowerment.
79. If the Second Amendment to the U.S. Constitution instead written
“…the right of the people to keep and drive motor vehicles, shall not be
infringed” then the State would err in creating any system of
infringement under the guise of a Drivers License, and the Court would
require the revocation of such a licensing scheme as such would be a
blatant infringement upon the ancient, and unqualified right to engage
in such a freedom.
80. If the Second Amendment instead read “…the right of the people to
keep and ride horses, shall not be infringed” the government would thus
be unable to control the type of horse a citizen might possess, the
number of legs it may possess, the color of the horse, the use of a
saddle, or many of the multitude of other concerns related to horses,
and any such attempt by the government to control the matter of horses
or to enact any form of licensing scheme would be a defacto
infringement, on the aforementioned right.
81. Indeed the 2nd Amendment does not address matters of motor vehicles
or that of horses, but instead a much simpler issue, that of “arms”,
which is an ancient right, upon which any form of infringement is
strictly forbidden.
82. While the riding of horses are not licensed, and the driving of
automobiles is, as is the flying of airplanes and helicopters, or the
piloting a motorboat on the public waters. However, none of these acts
are Constitutionally protected, nor are they specifically listed in the
Bill of Rights. Arms on the other hand are listed in the Bill of Rights,
and arms are indeed constitutionally protected in every way.
83. In Heller, the Court stated, “the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms, even those that
were not in existence at the time of the founding.” Id. at 582. The
Court thus rejected the notion that simply because something is a modern
arm of the type in common use at the time, that it is therefore a
“dangerous and unusual weapon.”
84. Otherwise, the Second Amendment would only protect only possession
of older, unstable muzzle loading muskets and permit bans on modern
safety ammunition and other modern technological improvements to arms,
such as cartridge-based ammunition, automatic and manual safeties. Such
an analysis, in the context of the First Amendment, would permit
unfettered restrictions on speech recorded onto a digital medium, such
as CD, MP3, and emailed text and further prevent the press’ employment
of modern printing mediums and Internet based publication. The
Commonwealth of Massachusetts seeks to ban modern technological
improvements to arms under the guise of public safety. It is for that
reason that a judicial review must be undertaken to determine the
constitutionality of all Commonwealth of Massachusetts statutes,
licensing, and procedures in regards to arms of any form.
85. The Courts have already ruled that the government cannot license
that which is a freedom. As the Court has also ruled that possessing
arms within the home is a freedom; hence, no state can impose any kind
of licensing scheme of any sort of arms in the home, or upon ones own
property, or business. Nor may the state impose any sort of licensing
scheme on arms that are being peaceably carried, merely that they may
control to a very limited extent the mode of carry or of concealment,
but nothing beyond that.
86. Further, as the mere act of licensing is an act of defacto
infringement, no license may be required to keep “arms” in any part of
the United States, and infringements of any form are forbidden.
87. “The right to bear arms has always been the distinctive privilege of
freemen. Aside from any necessity of self-protection to the person, it
represents among all nations power coupled with the exercise of a
certain jurisdiction. . . . [I]t was not necessary that the right to
bear arms should be granted in the Constitution, for it had always
existed.” J. Ordronaux, Constitutional Legislation in the United States
241–242 (1891).
88. In Heller the Court further observes:
“In the aftermath of the Civil War, there was an outpouring of
discussion of the Second Amendment in Congress and in public discourse,
as people debated whether and how to secure constitutional rights for
newly free slaves. See generally S. Halbrook, Freedmen, the Fourteenth
Amendment, and the Right to Bear Arms, 1866–1876 (1998) (hereinafter
Halbrook); Brief for Institute for Justice as Amicus Curiae. Since those
discussions took place 75 years after the ratification of the Second
Amendment, they do not provide as much insight into its original meaning
as earlier sources. Yet those born and educated in the early 19th
century faced a widespread effort to limit arms ownership by a large
number of citizens; their understanding of the origins and continuing
significance of the Amendment is instructive.”
“Blacks were routinely disarmed by Southern States after the Civil War.
Those who opposed these injustices frequently stated that they infringed
blacks’ constitutional right to keep and bear arms. Needless to say, the
claim was not that blacks were being prohibited from carrying arms in an
organized state militia. A Report of the Commission of the Freedmen’s
Bureau in 1866 stated plainly:
“[T]he civil law [of Kentucky] prohibits the colored man from bearing
arms. . . . Their arms are taken from them by the civil authorities. . .
. Thus, the right of the people to keep and bear arms as provided in the
Constitution is infringed.” H. R. Exec. Doc. No. 70, 39th Cong., 1st
Sess., 233, 236. A joint congressional Report decried:
“in some parts of [South Carolina], armed parties are, without proper
authority, engaged in seizing all firearms found in the hands of the
freemen. Such conduct is in clear and direct violation of their personal
rights as guaranteed by the Constitution of the United States, which
declares that ‘the right of the people to keep and bear arms shall not
be infringed.’ The freedmen of South Carolina have shown by their
peaceful and orderly conduct that they can safely be trusted with
fire-arms, and they need them to kill game for subsistence, and to
protect their crops from destruction by birds and animals.” - Joint
Comm. on Reconstruction, H. R. Rep. No. 30, 39th Cong., 1st Sess., pt.
2, p. 229 (1866) (Proposed Circular of Brigadier General R. Saxton). “
“The view expressed in these statements was widely reported and was
apparently widely held. For example, an editorial in The Loyal Georgian
(Augusta) on February 3, 1866, assured blacks that “[a]ll men, without
distinction of color, have the right to keep and bear arms to defend
their homes, families or themselves.” Halbrook 19.
Congress enacted the Freedmen’s Bureau Act on July 16, 1866. Section 14
stated:
“[T]he right . . . to have full and equal benefit of all laws and
proceedings concerning personal liberty, personal security, and the
acquisition, enjoyment, and disposition of estate, real and personal,
including the constitutional right to bear arms, shall be secured to and
enjoyed by all the citizens . . . without respect to race or color, or
previous condition of slavery. . . . ” 14
Stat. 176–177.”
“The understanding that the Second Amendment gave freed blacks the right
to keep and bear arms was reflected in congressional discussion of the
bill, with even an opponent of it saying that the founding generation
“were for every man bearing his arms about him and keeping them in his
house, his castle, for his own defense.” Cong. Globe, 39th Cong., 1st
Sess., 362, 371 (1866) (Sen. Davis).
Similar discussion attended the passage of the Civil Rights Act of 1871
and the Fourteenth Amendment. For example, Representative Butler said of
the Act: “Section eight is intended to enforce the well-known
constitutional provision guaranteeing the right of the citizen to ‘keep
and bear arms,’ and provides that whoever shall take away, by force or
violence, or by threats and intimidation, the arms and weapons which any
person may have for his defense, shall be deemed guilty of larceny of
the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With
respect to the proposed Amendment, Senator Pomeroy described as one of
the three “indispensable” “safeguards of liberty . . . under the
Constitution” a man’s “right to bear arms for the defense of himself and
family and his homestead.”
“Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye
thought the Fourteenth Amendment unnecessary because “[a]s citizens of
the United States [blacks] have equal right to protection, and to keep
and bear arms for self-defense.” Id., at 1073 (1866). “
“It was plainly the understanding in the post-Civil War
Congress that the Second Amendment protected an individual right to use
arms for self-defense.”
89. The States retain the ability to regulate the manner of carrying
handguns within certain constitutional parameters; to prohibit the
carrying of handguns in very specific, narrowly defined sensitive
places; to prohibit the carrying of arms that are not within the scope
of Second Amendment protection; and, to disqualify specific,
particularly dangerous individuals (convicted criminals and the adjudged
mentally insane) from carrying handguns.
90. The States may not ban, nor compel a license to possess or carry
handguns or other arms for self defense, may not deny individuals the
right to carry handguns or other arms in non-sensitive places, may not
deprive individuals of the right to carry handguns in an arbitrary and
capricious manner, or impose regulations on the right to carry handguns
or other arms, or impose any licensing scheme of any sort which are
inconsistent with the Second Amendment.
91. The Court in Ezell v. City of Chicago, stated:
“McDonald confirms that when state- or local-government action is
challenged, the focus of the original-meaning inquiry is carried forward
in time; the Second Amendment's scope as a limitation on the States
depends on how the right was understood when the Fourteenth Amendment
was ratified . . . this wider historical lens is required if we are to
follow the Court's lead in resolving questions about the scope of the
Second Amendment by consulting its original public meaning as both a
starting point and an important constraint on the analysis.” - 2011 U.S.
App. LEXIS 14108 at 39-40.
92. Another reason that the Heller decision is appropriate for the Court
to consider in free press cases is that Heller's approach is, in fact,
very similar to how the Court has already discussed the Free Press
Clause, in those relatively few cases in which the history of the Free
Press Clause has come up. The Supreme Court has recognized that a
prepublication licensing requirement a prior restraint is a violation of
the First Amendment," reminiscent of the history of abuses of the
British Crown under the notorious Printing Acts. As Justice Scalia
explained: Thomas v. Chi. Park Dist., 534 U.S. 316, 320 (2002)
“The First Amendment's guarantee of "the freedom of speech, or of the
press" prohibits a wide assortment of government restraints upon
expression, but the core abuse against which it was directed was the
scheme of licensing laws implemented by the monarch and Parliament to
contain the "evils" of the printing press in 16th- and 17th-century
England. The Printing Act of 1662 had "prescribed what could be printed,
who could print, and who could sell.”
93. The States also may not restrict, or license the possession of
firearms, pistols, rifles, revolvers, swords, foils, daggers, or other
useful arms that the citizen selects as being most suited to their own
defense, and which have been historically useful in defending the home
or business.
94. The States are not allowed to dictate which weapons may or may not
be kept within the home, only that certain overly unstable or overly
dangerous firearms (by reason of a design flaw). For example, a large
carriage-mounted, decrepit, badly corroded and cracked cannon would be
most unsuited for defense inside the home; however, any modern shotgun,
rifle, pistol, revolver, or edged or impact weapons or other weapons
which is in good repair and/or commonly used by the police or the
military would be well suited to home, business, and property defense.
95. State v. Kessler, 289 Or. 359, 614 P. 2d 94, at 95, at 98 (1980).
“We are not unmindful that there is current controversy over the wisdom
of a right to bear arms, and that the original motivations for such a
provision might not seem compelling if debated as a new issue. Our task,
however, in construing a constitutional provision is to respect the
principles given the status of constitutional guarantees and limitations
by the drafters; it is not to abandon these principles when this fits
the needs of the moment.”
“Therefore, the term 'arms' as used by the drafters of the constitutions
probably was intended to include those weapons used by settlers for both
personal and military defense. The term 'arms' was not limited to
firearms, but included several handcarried weapons commonly used for
defense. The term 'arms' would not have included cannon or other heavy
ordnance not kept by militiamen or private citizens.”
96. Motley v. Kellogg, 409 N.E. 2d 1207, at 1210 (Ind. App. 1980)
“[N]ot making applications available at the chief's office effectively
denied members of the community the opportunity to obtain a gun permit
and bear arms for their self-defense.”
97. Schubert v. DeBard, 398 N.E. 2d 1339, at 1341 (Ind. App. 1980)
“We think it clear that our constitution provides our citizenry the
right to bear arms for their self- defense.”
98. Taylor v. McNeal, 523 S.W. 2d 148, at 150 (Mo. App. 1975)
"The pistols in question are not contraband. * * * Under Art. I, sec 23,
Mo. Const. 1945, V.A.M.S., every citizen has the right to keep and bear
arms in defense of his home, person, and property, with the limitation
that this section shall not justify the wearing of concealed arms."
99. City of Lakewood v. Pillow, 180 Colo. 20, 501 P. 2d 744, at 745 (en
banc 1972).
“As an example, we note that this ordinance would prohibit gunsmiths,
pawnbrokers and sporting goods stores from carrying on a substantial
part of their business. Also, the ordinance appears to prohibit
individuals from transporting guns to and from such places of business.
Furthermore, it makes it unlawful for a person to possess a firearm in a
vehicle or in a place of business for the purpose of self-defense.
Several of these activities are constitutionally protected. Colo. Const.
art. II, sec 13.”
100. City of Las Vegas v. Moberg, 82 N.M. 626, 485 P. 2d 737, at 738
(N.M. App. 1971).
“It is our opinion that an ordinance may not deny the people the
constitutionally guaranteed right to bear arms, and to that extent the
ordinance under consideration is void.”
101. 8. State v. Nickerson, 126 Mt. 157, 247 P. 2d 188, at 192 (1952).
"The law of this jurisdiction accords to the defendant the right to keep
and bear arms and to use same in defense of his own home, his person and
property."
102. 9. People v. Liss, 406 Ill. 419, 94 N.E. 2d 320, at 323 (1950).
“The second amendment to the constitution of the United States provides
the right of the people to keep and bear arms shall not be infringed.
This of course does not prevent the enactment of a law against carrying
concealed weapons, but it does indicate it should be kept in mind, in
the construction of a statu[t]e of such character, that it is aimed at
persons of criminal instincts, and for the prevention of crime, and not
against use in the protection of person or property.”
103. People v. Nakamura, 99 Colo. 262, at 264, 62 P. 2d 246 (en banc 1936).
“It is equally clear that the act wholly disarms aliens for all
purposes. The state . . . cannot disarm any class of persons or deprive
them of the right guaranteed under section 13, article II of the
Constitution, to bear arms in defense of home, person and property. The
guaranty thus extended is meaningless if any person is denied the right
to possess arms for such protection.”
104. Glasscock v. City of Chattanooga, 157 Tenn. 518, at 520, 11 S.W. 2d
678 (1928).
“There is no qualification of the prohibition against the carrying of a
pistol in the city ordinance before us but it is made unlawful 'to carry
on or about the person any pistol,' that is, any sort of pistol in any
sort of manner. *** [W]e must accordingly hold the provision of this
ordinance as to the carrying of a pistol invalid.”
105. People v. Zerillo, 219 Mich. 635, 189 N.W. 927, at 928 (1922).
“The provision in the Constitution granting the right to all persons to
bear arms is a limitation upon the right 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.”
106. State v. Kerner, 181 N.C. 574, 107 S.E. 222, at 224 (1921).
“We are of the opinion, however, that 'pistol' ex vi termini is properly
included within the word 'arms,' and that the right to bear such arms
cannot be infringed. The historical use of pistols as 'arms' of offense
and defense is beyond controversy.”
“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.”
107. State v. Rosenthal, 75 VT. 295, 55 A. 610, at 611 (1903).
“The people of the state have a right to bear arms for the defense of
themselves and the state. *** The result is that Ordinance No. 10, so
far as it relates to the carrying of a pistol, is inconsistent with and
repugnant to the Constitution and the laws of the state, and it is
therefore to that extent, void.”
108. In re Brickey, 8 Ida. 597, at 598-99, 70 p. 609 (1902).
“The second amendment to the federal constitution is in the following
language: '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 language of section 11, article I of the constitution
of Idaho, is as follows: 'The people have the right to bear arms for
their security and defense, but the legislature shall regulate the
exercise of this right by law.' Under these constitutional provisions,
the legislature has no power to prohibit a citizen from bearing arms in
any portion of the state of Idaho, whether within or without the
corporate limits of cities, towns, and villages.”
109. Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878).
“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.”
110. Jennings v. State, 5 Tex. Crim. App. 298, at 300-01 (1878).
“We believe that portion of the act which provides that, in case of
conviction, the defendant shall forfeit to the county the weapon of
weapons so found on or about his person is not within the scope of
legislative authority. * * * One of his most sacred rights is that of
having arms for his own defence and that of the State. This right is one
of the surest safeguards of liberty and self-preservation.”
111. Andrews v. State, 50 Tenn. 165, 8 Am. Rep. 8, at 17 (1871).
“The passage from Story shows clearly that this right was intended, as
we have maintained in this opinion, and was guaranteed to and to be
exercised and enjoyed by the citizen as such, and not by him as a
soldier, or in defense solely of his political rights.”
112. Nunn v. State, 1 Ga. (1 Kel.) 243, at 251 (1846).
“The right of the people to 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.”
113. Simpson v. State, 13 Tenn. 356, at 359-60 (1833).
“But suppose it to be assumed on any ground, that our ancestors adopted
and brought over with them this English statute, [the statute of
Northampton,] or portion of the common law, our constitution has
completely abrogated it; it says, 'that the freemen of this State have a
right to keep and bear arms for their common defence.' Article II, sec.
26. * * * By this clause of the constitution, an express power is given
and secured to all the free citizens of the State to keep and bear arms
for their defence, without any qualification whatever as to their kind
or nature; and it is conceived, that it would be going much too far, to
impair by construction or abridgement a constitutional privilege, which
is so declared; neither, after so solemn an instrument hath said the
people may carry arms, can we be permitted to impute to the acts thus
licensed, such a necessarily consequent operation as terror to the
people to be incurred thereby; we must attribute to the framers of it,
the absence of such a view.”
114. Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am.
Dec. 251 (1822).
“For, in principle, there is no difference between a law prohibiting the
wearing 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.”
115. In Archuleta v. Wagner, 523 F.3d 1278, 1282 (10th Cir. 2008)
“[G]overnment officials performing discretionary functions generally are
granted a qualified immunity and are shielded from liability for civil
damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would
have known.” Id. at 1282-83 (quoting Wilson v. Layne, 526 U.S. 603, 609
(1999)). “Once the qualified immunity defense is asserted, . . . the
plaintiff must demonstrate that the defendant’s actions violated a
constitutional or statutory right” and that “the constitutional or
statutory rights the defendant allegedly violated were clearly
established at the time of the conduct at issue.”
116. In determining whether a constitutional right was clearly
established, we look at the specific context of the case. Bowling v.
Rector, 584 F.3d 956, 964 (10th Cir. 2009).
“A plaintiff can demonstrate that a constitutional right is clearly
established by reference to cases from the Supreme Court, the Tenth
Circuit, or the weight of authority from other circuits. There need not
be precise factual correspondence between earlier cases and the case at
hand, because general statements of the law are not inherently incapable
of giving fair and clear warning. The right must only be sufficiently
clear that a reasonable official would understand that what he is doing
violates that right.”
117. Further in Snell v. Tunnell, 920 F.2d 673, 700 (10th Cir. 1990) the
court states.
“The requisite causal connection is satisfied if the defendant set in
motion a series of events that the defendant knew or reasonably should
have known would cause others to deprive the plaintiff of her
constitutional rights.”
“Any official who ‘causes’ a citizen to be deprived of her
constitutional rights can also be held liable.” Snell, 920 F.2d at 700
(quotation omitted).
118. The 10th Cir. Court has demonstrated causation by showing an
affirmative link between the constitutional deprivation and the
officer’s or government officials exercise of control or direction.
119. The Supreme Court has already ruled on this matter, and poses the
first question of conduct in Wilson v. Layne, 526 U.S. 603, 609 (1999);
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998); Siegert v.
Gilley, 500 U.S. 226, 232 (1991). The threshold inquiry is whether the
plaintiff's allegations, if true, establish a constitutional violation.
Hope v. Pelzer, 122 S. Ct. 2508, 2513 (2002); Saucier v. Katz, 533 U.S.
194, 201 (2001); Siegert, 500 U.S. at 232. In the first question, The
right to keep and bear arms is a defacto “Constitutional Right” under
the 2nd and 14th Amendments, and any infringement or deprivation attempt
by any government official or government agency “pierces and rips
asunder the veil” of either absolute immunity, qualified immunity,
prosecutorial, and even judicial, or immunities of any other types or
descriptions. Hence, any government officer, employee, or agent that
violates, or attempts to violate a citizen’s Constitutional right does
so at the cost of forfeiting all forms of immunity of their office or
position, and hence they stand naked and vulnerable before the court,
with no immunity of any form whatsoever.
120. The second question by the Supreme Court is whether the right was
clearly established before the time of the alleged violation.
“That question is necessary because those acting under color of
authority should be on notice that their conduct is unlawful before they
are subject to suit.”
Hope, 122 S. Ct. at 2516-18; Anderson v. Creighton, 483 U.S. 635, 638-40
(1987).
121. On the second Question by the Supreme Court is that if the right
being “clearly established” in that the right is understood by the
common man, is well ingrained into the training of any member of the
military or law enforcement, and in fact is taught in most High School
civics and government courses (and is required to be known in order to
become a U.S. Citizen through naturalization). In short, the question is
that is it a commonly understood, and commonly accepted civil right. The
answer in this case is that indeed, most high school graduates or
immigrants would recognize the right, as would any member of the
military, most college graduates, and as would all police officers in
the Town of Rockport, or elsewhere. The question of whether a right is
clearly established is an issue of law for the court to decide. Elder v.
Holloway, 510 U.S. 510, 516 (1994), but it can be assumed that the state
actors were well aware that the right was indeed “clearly established”
or “ well understood” by them.
122. The third question is whether a reasonable agent of the state,
acting under color of law, similarly situated, would understand that the
challenged or prohibited conduct violated that established right. Swain
v. Spinney, 117 F.3d 1, 9 (1st Cir. 1997). On the third question, the
reasonableness inquiry is also a legal determination, although it may
entail preliminary factual determinations if there are disputed material
facts (which should be left for a jury). Swain, 117 F.3d at 10.
123. “[T]he concept of due process is equivalent to ‘fundamental
fairness.’” Newman v. Massachusetts, 884 F. 2d 19, 23 (1st Cir. 1989)
(citation omitted). Due process requires that impacted individuals be
“entitled to the Constitutional minimum of ‘some kind of hearing’ and
‘some pre termination opportunity to respond.’” O’Neil v. Baker, 210 F.
3d 41, 47-78 (1st Cir. 2000) (quoting Cleveland Bd. Of Educ. v.
Loudermill, 470 U.S. 532, 542 (1985) (footnote omitted). “The ubiquity
of the ‘notice and opportunity to be heard’ principle as a matter of
fundamental fairness is deeply engrained in our jurisprudence.” Oakes v.
United States, 400 F. 3d 92, 98 (1st Cir. 2005) citations omitted.
124. In Ezell v. City of Chicago, 10 -3525 (7th Cir. 7-6-2011) the
Appeals Court decided the scope of the Second Amendment right as
recognized in Heller and applied to the States in McDonald;
“Heller held that the Amendment secures an individual right to keep and
bear arms, the core component of which is the right to possess operable
fire arm handguns included for self-defense, most notably in the home.
Id. at 592‐95, 599, 628‐29.”
125. Ezell (2011) further tells us:
“But the Supreme Court has now spoken in Heller and McDonald on the
Second Amendment right to possess a gun in the home for self-defense and
the City must come to terms with that reality. Any regulation on
firearms ownership must respect that right.”
126. In Snyder v. Massachusetts, 291 U. S. 97, 105 (1934), the Court
spoke of rights that are “so rooted in the traditions and conscience of
our people as to be ranked as fundamental.” As the Supreme Court has
found in the McDonald, and Heller decisions, the right to keep and bear
arms, particularly within the sanctity of one’s home, is and always has
been an ordered liberty of United States citizenship fundamental and
beyond the pale of discretionary, subjective regulations by the States.
127. Plaintiff Atkinson, respectfully submits that any statutory scheme
which invades the fundamental liberty right of self defense within the
home by enacting any scheme which attempts to regulate the possession
and/or storage of any firearm(s) providing a basis to interfere in any
way or attempt to revoke or impinge upon such a right without the barest
of fundamental fairness and due process such as a Loudermill type
hearing, is fatally flawed and wholly prohibited under the application
of the Second Amendment to all of the States in light of the newly
decided authority contained herein. Under the present status of
jurisprudence, in light of newly decided authorities, it is respectfully
submitted that without a prior showing cloaked with the fairness of a
Loudermill type hearing that an individual is either a convicted felon
or legally and previously adjudged insane, any interfere with a
Massachusetts citizen’s unqualified right to keep arms within the
sanctity of the citizen’s home is per se unreasonable and prohibited.
128. Although McDonald’s five Justice majority reached the conclusion
that the right to keep and bear arms is a protected liberty interest
under the Second Amendment in different ways, under either the Due
Process Clause or Privileges or Immunities Clause, a majority confirmed
that “the Second Amendment right is fully applicable to the States.”
McDonald at 3026. Where a “fourteenth amendment liberty interest is
implicated…the state therefore must adhere to rigorous procedural
safeguards.” Valdivieso Ortiz v. Burgos, 807 F. 2d 6, 8 (1st Cir. 1986);
see also Kuck v. Danaher, 600 F. 3d 159, 165 (2d Cir. 2010) (same).
129. Richard Henry Lee, Virginia delegate to the Continental Congress,
initiator of the Declaration of Independence, and member of the first
Senate, which passed the Bill of Rights, stated:
“To preserve liberty, it is essential that the whole body of the people
always possess arms, and be taught alike, especially when young, how to
use them.”
130. On January 20, 1982, Orrin G. Hatch, Chairman of the Subcommittee
on the Constitution of the Senate, 96th Congress, 2nd Session:
“Utilizing the research capabilities of the Subcommittee on the
Constitution, the resources of the Library of Congress, and the
assistance of constitutional scholars such as Mary Kaaren Jolly, Steven
Halbrook, and David T. Hardy, the subcommittee has managed to uncover
information on the right to keep and bear arms which documents quite
clearly its status as a major individual right of American citizens. We
did not guess at the purpose of the British 1689 Declaration of Rights;
we located the Journals of the House of Commons and private notes of the
Declaration's sponsors, now dead for two centuries. We did not make
suppositions as to colonial interpretations of that Declaration's right
to keep arms; we examined colonial newspapers which discussed it. We did
not speculate as to the intent of the framers of the second amendment;
we examined James Madison's drafts for it, his handwritten outlines of
speeches upon the Bill of Rights, and discussions of the second
amendment by early scholars who were personal friends of Madison,
Jefferson, and Washington while these still lived. What the Subcommittee
on the Constitution uncovered was clear — and long lost — proof that the
second amendment to our Constitution was intended as an individual right
of the American citizen to keep and carry arms in a peaceful manner, for
protection of himself, his family, and his freedoms.”
131. Patrick Henry, in the Virginia Convention on the ratification of
the Constitution further articulated that:
“The great object is that every man be armed . . . Everyone who is able
may have a gun.”
132. The author of the Bill of Rights, James Madison, writes in this
Federalists Papers:
“The advantage of being armed . . . the Americans possess over the
people of all other nations . . . Notwithstanding the military
establishments in the several Kingdoms of Europe, which are carried as
far as the public resources will bear, the governments are afraid to
trust the people with arms.”
133. The Supreme Court’s prior restraint doctrine mandates higher standards:
“It is settled by a long line of recent decisions of this Court that an
ordinance which… makes the peaceful enjoyment of freedoms which the
Constitution guarantees contingent upon the uncontrolled will of an
official – as by requiring a permit or license which may be granted or
withheld in the discretion of such official – is an unconstitutional
censorship or prior restraint upon the enjoyment of those freedoms.”
--
James M. Atkinson
President and Sr. Engineer
"Leonardo da Vinci of Bug Sweeps and Spy Hunting"
http://www.linkedin.com/profile/view?id=15178662
Granite Island Group
jm..._at_tscm.com
http://www.tscm.com/
(978) 546-3803
Received on Sat Mar 02 2024 - 00:57:22 CST