The American right to keep and bear arms is not a right to commit murder.
Murder is not the right to keep and bear arms as it was understood by the Framers of the Second Amendment or the people who voted to enact the Second Amendment into law. Murder is not the Second Amendment right as it has been interpreted by the United States Supreme Court or by Federal court of appeals, or by any American State Court of last resort in the history of the Second Amendment.
The view that the Second Amendment is a right to commit murder is something that developed over the past 30 or 40 years.
It is difficult to pinpoint the exact date because these kinds of things don’t spring up overnight.
Since at least around the year 1260 in England, people who carried concealed weapons were severely punished. For example, the ca 1260 law regulating the carrying of arms at tournaments prohibited the spectators from bearing any arms. Violators were punished with seven years of imprisonment. A long time considering the average lifespan was thirty years in those days. Carrying a concealed weapon at the tournament was punished by a lifetime in prison.
From 1603 to 1825, if you used a concealed weapon to kill another person in England then you were executed. There was no possibility of a pardon or reduction in sentence. And it certainly did not matter if you were in an otherwise fair fight and you had to use your concealed weapon to save your life.
Upon hearing this, many people say so what? The United States was not England.
The thirteen American States were all English colonies prior to the War for Independence. The American colonies were governed by English law. The new American states and new American Federal government based their legal system on the English legal system.
When it came to concealed carry, the new United States were even stricter in their prohibitions on concealed carry than was England. In England, one could carry a weapon concealed but if he used it then he had to follow a multipart ritual. He had to remove the weapon from its place of concealment. He had to prominently display the formerly concealed weapon to his opponent. The concealed carrier could not use the concealed weapon, upon pain of death if he did and his opponent died within six months.
The concealed carrier had to stand there, displaying his concealed weapon while his opponent decided whether or not he wished to similarly arm himself and continue in mutual combat.
American states took a much simpler approach which their English forefathers had taken from time to time. American states simply banned concealed carry.
And some of the states simply banned concealable firearms.
By the early 20th-century, several states had banned the carrying of handguns in public. Oklahoma recently repealed its ban, Texas repealed its virtual ban on carrying handguns in public. In the Second half of the 20th-century, New York State and Florida would ban the Open Carry of handguns in public for the purpose of self-defense.
In the second decade of the 21th-century, California would ban the Open Carry of handguns. The carrying of handguns concealed is virtually non-existent in the heavily populated cities and counties of Los Angeles and San Francisco because California state law requires a permit to carry a weapon concealed in public, and those concealed carry permits are rarely issued to the general public there. Los Angeles County alone has over ten million people, one-quarter of the state’s population. The last state audit showed that the Los Angeles County Sheriff had issued nine concealed carry licenses to people who were not judges or police officers.
English law did not prohibit Englishmen from carrying concealed weapons in England after the 1603 law was repealed in 1825. As far as I have been able to determine, it was not until the 1950s that it became illegal to carry a handgun concealed (or openly) in England without good cause.
A review of the American states’ legal decisions in the 1800s and early 1900s reveals that in many cases, handguns that were easily and ordinarily carried concealed were not considered to be arms protected by the Second Amendment or state analogs to the Second Amendment, even though their possession in the home or on one’s private property may have been legal.
That was the implication of the United States Supreme Court 1939 Miller decision. A decision that is inexplicably so often cited by the anti-gun groups. The Miller decision held that a shotgun with a barrel length of less than 18 inches was not protected by the Second Amendment because short-barreled shotguns are not the type of arms an American would take to war.
The Miller decision is a perfect example of why the higher courts should leave fact-finding to juries. It appears that short-barreled shotguns were in common use by American Soldiers in World War I. That fact was never presented to the Supreme Court because only one side showed up in that case, the government. But in any event, the Supreme Court and the Federal courts of appeal are not supposed to decide facts in dispute, facts are left for juries to decide.
All nine justices, the five in the majority and the four in the minority, could have easily pointed to American laws and legal decisions predating the 1939 Miller decision going back to at least 1815 that banned the carrying of handguns that were easily and ordinarily carried concealed.
If they had then the Second Amendment, according to the Heller decision, might have only protected large handguns that are not easily or ordinarily carried concealed.
The 2008 and 2010 Supreme Court decisions in Heller and McDonald were a gift to the owners of handguns.
For example, an 1815 Georgia law banned the carrying of all handguns except for what were known as Horseman’s pistols.
To give you an idea of just how large these handguns were, they were too large to be carried in a holster on one’s hip. Instead, they were carried in a holster carried by one’s horse. Hence the name, “horseman’s pistol.”
Instead, Justice Scalia chose a Georgia Supreme Court decision invalidating that 1815 law as it applied to the Open Carry of handguns, regardless of size, but upheld the law as it applied to the concealed carry of handguns.
The Heller decision, written by Justice Scalia, also held that the only thing the Miller decision stands for today is that there are some kinds of weapons not protected by the Second Amendment. The decision did not say what those weapons are but the Heller decision did say that all bearable arms are, prima facie, protected by the Second Amendment.
That means if you can pick the weapon up that weapon is, on its face, protected by the Second Amendment. If the weapon is not protected by the Second Amendment then the burden lies with the government to prove that the weapon is a “dangerous and unusual” weapon not protected by the Second Amendment.
That is how Supreme Court decisions are supposed to work. Justice Scalia said that is how it works in a Fox News interview after his decision is published. Justice Scalia said something in effect to a shoulder-fired missile that can bring down an airliner is a bearable arm that presumptively falls with the class of arms protected by the Second Amendment. Justice Scalia was asked if they or semi-automatic rifles that hold 100 rounds are protected by the Second Amendment? Justice Scalia said that is for a future court to decide.
As we all know, the inferior courts have been in full revolt against the Supreme Court decisions in Heller and McDonald. The 7th-circuit court of appeals upheld a ban on AR-15’s and similar semi-automatic rifles because, according to the 7th circuit court of appeals, the ban makes some people feel better to know that they are banned.
Despite the gift of the Heller decision to American handgun owners, many of them condemn Justice Scalia for also saying that concealed carry is not a right and can therefore be prohibited.
There’s just no pleasing some people.
But then there was that one judge …
The district court judge who was assigned to my California Open Carry lawsuit way back in 2011 would eventually rule in favor of the State of California.
Judge Samuel James Otero said the American people do not have a right to even possess firearms. Judge Otero compared firearms to crystal meth and people who carry firearms to dealers in crystal meth.
Judge Otero neglected to mention in his final judgment dismissing my Open Carry lawsuit that he was someone with a concealed carry permit. Most concealed carry permits in Los Angeles, then and now, city and county, are issued to judges and police officers.
Judge Otero has since retired but have no fear. Senators Feinstein and Harris get to veto any district court judge nominee that President Trump makes in California. Whoever Judge Otero’s replacement may be, he or she will hate the Second Amendment just as much as Otero did.
And $5 will get you $10 Otero’s replacement will have a California concealed carry permit before the ink is dry on his or her confirmation.
I would not be surprised to find out that the new judge is issued a concealed carry permit without his even having to fill out an application, let alone give “good cause” as to why he should be issued a concealed carry permit.
There was a time, not too long ago, when a lawyer for the Heritage Foundation tweeted why concealed carry is a Second Amendment right and why people should carry concealed weapons. I replied to this lawyer, Pan Faced Amy Swearer, that if someone were to repeat to the police or prosecutor what she had just told all of her followers, after having shot and killed someone, then that person would be guilty of murder.
I confronted Pan Faced Amy Swearer on a Federalist Society Podcast about her posts on Twitter in which she claims that concealed carry is a Second Amendment right. I reminded here that the United States Supreme Court said in District of Columbia v. Heller that concealed carry is not a right.
All nine justices in the Heller decision were in agreement that concealed carry is not a right.
Pan Faced Amy Swearer did not defend her lies on Twitter. Instead, she responded by saying, in a surprisingly deep male-sounding voice, that the Heller decision had nothing to do with carrying guns.
The District of Columbia laws that Dick Heller challenged did not just ban the possession of handguns. The laws banned the carrying of firearms within the home and on one’s private property.
As a police officer, Dick Heller could openly carry firearms in public, including a handgun, but he could not carry any firearm, handgun, rifle or shotgun in his home or on his private property.
The Heller decision had everything to do with the right to bear arms.
There is only one place in the Heller decision where the court cited two cases that in its own words “perfectly captured” the meaning of the right to keep and bear arms shall not be infringed.
Those two cases held that the Second Amendment does not allow the banning of handguns, and they held the right to openly carry firearms is the right guaranteed by the Constitution.
The Supreme Court in the Heller decision did not just say in passing but emphasized that the carrying of weapons concealed is not protected by the Second Amendment. So much so, the Heller decision included a separate section, Section III, stating a non-exhaustive list of what the Second Amendment does not protect, and what the Heller decision did not cast doubt on.
The very first item in Section III of the Heller decision said that concealed carry is not a right and once again cited the two decisions that held Open Carry is the right and concealed carry is not a right, Nunn and Chandler.
Section III of the Heller decision, in describing what the Second Amendment right is not, continued by saying that nothing in its decision should cast doubt on the longstanding prohibitions on the possession of firearms by felons or the mentally ill or on the commercial sale of arms.
The Heller decision also said the right does not protect “dangerous and unusual weapons.” Unfortunately, the Heller decision did not give any examples of dangerous and unusual weapons or explain to the lower courts how they were to make the determination that a particular weapon is dangerous and unusual and therefore not protected by the Second Amendment.
Section III of the Heller decision was put there because the late Justice Stevens lobbied former Justice Kennedy to include the section. According to Justice Stevens, Justice Kennedy insisted that the limitations on the Second Amendment right be included in order to obtain his vote (Kennedy’s) in favor of the majority decision in Heller. Heller needed five justices to win. Justice Kennedy provided that fifth vote.
Two years later, the United States Supreme Court published the McDonald decision. The McDonald decision makes binding the Second Amendment right on all states and local governments. In the McDonald decision, Section III of the Heller decision was again cited in response to a dissent.
McDonald v. City of Chicago involved a challenge to a citywide ban on the possession of Chicago residents. The City of Chicago ban was not limited to the home or to private property. Unless one had a state permit, it was illegal to keep or bear a handgun anywhere in the City of Chicago.
If the five justices in the majority in the McDonald decision, or the four justices in the minority, had wanted to challenge the Heller decision’s holding that concealed carry is not a right protected by the Second Amendment, they had the perfect opportunity.
They did not.
And so it should not surprise you to learn that when all nine justices from the Heller decision were born, and throughout much of their life, only a handful of states even allowed the carrying of a weapon concealed in public, and all but one of that handful of states required a government-issued permission slip to carry a handgun concealed in public. Concealed carry simply was not legal in nearly all 50 states because it was a crime of moral turpitude to carry a weapon concealed and permits to carry a weapon concealed simply did not exist.
By the way, a concealed carry permit is a defense to the crime of concealed carry. Having a concealed carry permit, or living in a state with shall-issue concealed carry permits, does not change the law. Concealed carry remains a crime of moral turpitude.
On a finer point, eliminating the crime of carrying a weapon concealed does not make it a right protected by either a state or Federal Constitution. Eliminating the crime of concealed carry does not mean that carrying a concealed weapon is not an act of moral turpitude.
And so, concealed carry never having been a Second Amendment right, it should not come as any surprise to anyone that all nine justices of the United States Supreme Court, like every court before them, held that concealed carry is not protected by the Second Amendment.
Continued in Part 3.
Somewhere on YouTube is a video of a Horseman’s and saddle holster that was issued to a non-combat Union Officer. Officers had to carry a handgun but since he was never going to be in combat and the government did not want to waste a revolver on him, they gave him a horseman’s pistol to carry with him when he made his rounds.