For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms

By Clayton E. Cramer | Go to book overview

IV. PROBLEMS OF JUDICIAL INTERPRETATION

Judicial interpretation of the Second Amendment provides a wealth of information with which to prove either the republican or liberal position, depending on which decisions are cited, and how selectively the quotes are made. Courts frequently make decisions on the narrowest possible grounds, in response to particular points of law raised by one side or the other; it is therefore remarkably easy to quote individual sentences from a decision that completely contradict the overall meaning of the decision. This is especially true when lawyers--trained for advocacy, not objectivity--are writing history. The only way out of the morass of selectively quoted decisions is to read the originals, in their entirety.

In addition, we will be examining at least three different sets of rights in this part of the book, each of which reflects a progressively greater set of restrictions on the individual: the right to concealed carry of arms; the right to open carry of arms; and the right to possess arms on private property. There are many variations, and in the next few chapters we will examine court cases involving a variety of combinations of types of arms, carry modes, and places of possession.

Federal laws regulating private ownership, transfer, or carriage of firearms appear to be relatively recent, at least as applied to the non-Indian population of the United States. In a sense, federal laws restricting sales of firearms to Indians were export controls on hostile foreign powers, even though these foreign powers were within the boundaries of the United States. These federal restrictions on sales to Indians appear at least as early as 1873, and were not abolished until 1979.1 State laws were also passed to restrict sales to Indians. While no attempt has been made to develop a comprehensive list of such statutes, Idaho, as one example, did not repeal a law prohibiting sales of firearms and ammunition to Indians until 1949.2

Even determining when the first federal laws appeared has been a frustrating experience. One source asserts that, "Federal involvement in firearms possession and transfer was not significant prior to 1934, when the National Firearms Act of

____________________
1
Halbrook, That Every Man Be Armed, 234-5. Carl P. Russell, Guns On The Early Frontier, ( Berkeley: University of California Press, 1957), reprinted ( Lincoln, Nebr.: University of Nebraska Press, 1980), 40-61, gives a detailed account of the arming of the Indians, first by the English, then by the American government through 1842, with no apparent attempt at limiting sales, except during the Revolution and the War of 1812.
2
Idaho Code Annotated §18-3309 ( 1987).

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For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Foreword vii
  • Preface xiii
  • Acknowledgment xvii
  • I. Definitions 1
  • II. European Origins 19
  • III. The Legislative History of the Second Amendment 31
  • IV. Problems of Judicial Interpretation 63
  • V. "To Keep and Carry Arms Wherever They Went" 69
  • VI. "No Negro. . . Shall Be Allowed to Carry Fire-Arms" 97
  • VII. "Carrying Concealed Weapons is a Grievous Evil" 141
  • VIII. "A Proper Reason for Carrying a Pistol" 165
  • IX. Civil Rights, Civil Disturbances 197
  • X. The Right Comes Out of Its Coma? 221
  • XI. At the Crossroads 269
  • Selected Bibliography 275
  • Index 281
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