Wednesday, May 18, 2005
Instead of getting ready for a meeting later today, I'm reading Pressler v Illinois.
Got there by the usual free association clicking > volokh > bill of rights organization > landmark cases.
A recent 2nd circuit case had upheld denial of a gun permit to a guy who visits his parents in New York. New York bans handguns. The opinion relied in part of Pressler,
so I thought it might be interesting to read the case itself.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. bold added.
This is somewhat out of context; the rest of the decision is not helpful.
Strangely, it doesn't consider whether or not bearing arms is a privilege or immunity under the 14th, although it does discuss assembly as a p&i. It construes assembly narrowly, saying there must be both peaceable assembly and "petition for redress of grievances"; here there was no petition. I doubt modern cases on the assembly clause are limited in that way - not sure.
Cruikshank:
Again, very much out of context, but a useful quote:
The rights of life and personal liberty are natural rights of man. 'To secure these rights,' says the Declaration of Independence, 'governments are instituted among men, deriving their just powers from the consent of the governed.' The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Cruikshank held thar peaceable assembly and bearing arms are rights subject to state jurisdiction, and only peaceable assembly to petition the federal government is a federal P&I. Thus it's a pre-incorporation case, subsequently overruled.
Got there by the usual free association clicking > volokh > bill of rights organization > landmark cases.
A recent 2nd circuit case had upheld denial of a gun permit to a guy who visits his parents in New York. New York bans handguns. The opinion relied in part of Pressler,
so I thought it might be interesting to read the case itself.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. bold added.
This is somewhat out of context; the rest of the decision is not helpful.
Strangely, it doesn't consider whether or not bearing arms is a privilege or immunity under the 14th, although it does discuss assembly as a p&i. It construes assembly narrowly, saying there must be both peaceable assembly and "petition for redress of grievances"; here there was no petition. I doubt modern cases on the assembly clause are limited in that way - not sure.
Cruikshank:
Again, very much out of context, but a useful quote:
The rights of life and personal liberty are natural rights of man. 'To secure these rights,' says the Declaration of Independence, 'governments are instituted among men, deriving their just powers from the consent of the governed.' The very highest duty of the States, when they entered into the Union under the Constitution, was to protect all persons within their boundaries in the enjoyment of these 'unalienable rights with which they were endowed by their Creator.' Cruikshank held thar peaceable assembly and bearing arms are rights subject to state jurisdiction, and only peaceable assembly to petition the federal government is a federal P&I. Thus it's a pre-incorporation case, subsequently overruled.
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