The Judiciary:State and Federal
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Supreme Court Justice Antonin Scalia:
"It is incontestible that the Constitution established a system of `dual sovereignty.' Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained `a residuary and inviolable sovereignty,' The Federalist No. 39, at 245 (J. Madison). This is reflected throughout the Constitution's text, Lane County v. Oregon, 7 Wall. 71, 76 (1869); Texas v. White, 7 Wall. 700, 725 (1869), including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a State's territory, Art. IV, §3; the Judicial Power Clause, Art. III, §2, and the Privileges and Immunities Clause, Art. IV, §2, which speak of the `Citizens' of the States; the amendment provision, Article V, which requires the votes of three fourths of the States to amend the Constitution; and the Guarantee Clause, Art. IV, §4, which `presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights,' Helvering v. Gerhardt, 304 U.S. 405, 414-415 (1938). Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers,but only discrete, enumerated ones, Art. I, §8, which implication was rendered express by the Tenth Amendment's assertion that `[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.'" Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Antonin Scalia:
"The power of the Federal Government would be augmented immeasurably if it were able to impress into its service--and at no cost to itself--the police officers of the 50 States." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Antonin Scalia:
"The dissent of course resorts to the last, best hope of those who defend ultra vires congressional action, the Necessary and Proper Clause. It reasons, post, at 3-5, that the power to regulate the sale of handguns under the Commerce Clause, coupled with the power to `make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,' Art. I, §8, conclusively establishes the Brady Act's constitutional validity, because the Tenth Amendment imposes no limitations on the exercise of delegated powers but merely prohibits the exercise of powers `not delegated to the United States.' What destroys the dissent's Necessary and Proper Clause argument, however, is not the Tenth Amendment but the Necessary and Proper Clause itself. When a `La[w] . . . for carrying into Execution' the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier, supra, at 19-20, it is not a `La[w] . . . proper for carrying into Execution the Commerce Clause,' and is thus, in the words of The Federalist, `merely [an] ac[t] of usurpation' which `deserve[s] to be treated as such.' The Federalist No. 33, at 204 (A. Hamilton). See Lawson & Granger, The `Proper' Scope of Federal Power: A Jurisdictional Interpretation of the Sweeping Clause, 43 Duke L. J. 267, 297-326, 330-333 (1993). We in fact answered the dissent's Necessary and Proper Clause argument in New York: `[E]ven where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts. . . . [T]he Commerce Clause, for example, authorizes Congress to regulate interstate commerce directly; it does not authorize Congress to regulate state governments' regulation of interstate commerce.' 505 U. S. 144 (1992), at 166." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Antonin Scalia:
"What we have said makes it clear enough that the central obligation imposed upon CLEOs by the interim provisions of the Brady Act--the obligation to `make a reasonable effort to ascertain within 5 business days whether receipt or possession [of a handgun] would be in violation of the law, including research in whatever State and local recordkeeping systems are available and in a national system designated by the Attorney General,' 18 U.S.C. § 922(s)(2)--is unconstitutional. Extinguished with it, of course, is the duty implicit in the background check requirement that the CLEO accept notice of the contents of, and a copy of, the completed Brady Form, which the firearms dealer is required to provide to him, §§922(s)(1)(A)(i)(III) and (IV)." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Antonin Scalia:
"We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit isreversed." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Sandra Day O'Conner:
"Our precedent and our Nation's historical practices support the Court's holding today. The Brady Act violates the Tenth Amendment to the extent it forces States and local law enforcement officers to perform background checks on prospective handgun owners and to accept Brady Forms from firearms dealers." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Clarence Thomas:
"The Court today properly holds that the Brady Act violates the Tenth Amendment in that it compels state law enforcement officers to `administer or enforce a federal regulatory program.' See ante, at 25. Although I join the Court's opinion in full, I write separately to emphasize that the Tenth Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) ("This government is acknowledged by all to be one of enumerated powers"). `[T]hat those limits may not be mistaken, or forgotten, the constitution is written.' Marbury v. Madison, 1 Cranch 137, 176 (1803). Accordingly, the Federal Government may act only where the Constitution authorizes it to do so. Cf. New York v. United States, 505 U.S. 144 (1992)." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Clarence Thomas:
"In my `revisionist' view, see post, at 3, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power `to regulate Commerce . . . among the several states,' does not extend to the regulation of wholly intrastate, point of sale transactions. See United States v. Lopez, 514 U.S. 549,584 (1995) (concurring opinion). Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must `temper our Commerce Clause jurisprudence' and return to an interpretation better rooted in the Clause's original understanding. Id., at 601; (concurring opinion); see also Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, (1997) (Thomas, J.,dissenting). Even if we construe Congress' authority to regulate interstate commerce to encompass those intrastate transactions that `substantially affect' interstate commerce, I question whether Congress can regulate the particular transactions at issue here. The Constitution, in addition to delegating certain enumerated powers to Congress, places whole areas outside the reach of Congress' regulatory authority. The First Amendment, for example, is fittingly celebrated for preventing Congress from `prohibiting the free exercise' of religion or `abridging the freedom of speech.' The Second Amendment similarly appears to contain an express limitation on the government's authority. That Amendment provides: `[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.' This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to `keep and bear arms,' a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment's protections. As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms `has justly been considered, as the palladium of the liberties of a republic.' 3 J. Story, Commentaries §1890, p. 746 (1833). In the meantime, I join the Court's opinion striking down the challenged provisions of the Brady Act as inconsistent with the Tenth Amendment." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Clarence Thomas:
"Note 1:Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be `ordinary military equipment' that could `contribute to the common defense.' Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Justice Clarence Thomas:
"Note 2:Marshaling an impressive array of historical evidence, a growing body of scholarly commentary indicates that the `right to keep and bear arms' is, as the Amendment's text suggests, a personal right. See, e.g., J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo American Right 162 (1994); S. Halbrook, That Every Man Be Armed, The Evolution of a Constitutional Right (1984); Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 Duke L. J. 1236 (1994); Amar, The Bill of Rights and the Fourteenth Amendment, 101 Yale L. J. 1193 (1992); Cottrol & Diamond, The Second Amendment: Toward an Afro Americanist Reconsideration, 80 Geo. L. J. 309 (1991); Levinson, The Embarrassing Second Amendment, 99 Yale L. J. 637 (1989); Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204 (1983). Other scholars, however, argue that the Second Amendment does not secure a personal right to keep or to bear arms. See, e.g., Bogus, Race, Riots, and Guns, 66 S. Cal. L. Rev. 1365 (1993); Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 Yale L. J. 551 (1991); Brown, Guns, Cowboys, Philadelphia Mayors, and Civic Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L. J. 661 (1989); Cress, An Armed Community: The Origins and Meaning of the Right to Bear Arms, 71 J. Am. Hist. 22 (1984). Although somewhat overlooked in our jurisprudence, the Amendment has certainly engendered considerable academic, as well as public, debate." Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. UNITED STATES [521 U. S. 98 (1997)]
Supreme Court Chief Justice William Rehnquist:
"`the people' seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by `the People of the United States.' The Second Amendment protects `the right of the people to keep and bear Arms,' and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to `the people'... While this textual exegesis is by no means conclusive, it suggests that `the people' protected by the Fourth Amendment, and by the First and Second Amendments ... refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with the country to be considered part of that community." United States v. Verdugo-Urquidez [58 U.S. Law Week 4263, Feb. 28, 1990]
Supreme Court Justice Antonin Scalia:
"It would... be strange to find in the midst of a catalog of the rights of individuals a provision securing to the states the right to maintain a designated Militia. Dispassionate scholarship suggests quite strongly that the right of the people to keep and bear arms meant just that. There is no need to deceive ourselves as to what the original Second Amendment said and meant." A Matter of Interpretation: Federal Courts and the Law, Princeton University Press, 1997, 159 pages.
Supreme Court Justice Sandra O'Connor:
"As the second Justice Harlan recognized: [T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on." Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al. [505 U.S. 833 (1992)]
Supreme Court Justice Sandra O'Connor:
"The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e.g., Duncan v. Louisiana, 391 U. S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U. S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view." Planned Parenthood of Southeastern Pennsylvania, et al. v. Robert P. Casey, et al. [505 U.S. 833 (1992)]
Supreme Court Justice Black:
"[I]t is true that [the provisions of the Bill of Rights] were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century whenever excessive power is sought by the few at the expense of the many." Adamson v. California [332 U.S. 46, 89 (1947)]
Dissenters to United States v. Verdugo-Urquidez:
"The Framers of the Bill of Rights did not purport to `create' rights. Rather, they designed the Bill of Rights to prohibit our Government from infringing rights and liberties presumed to be pre-existing. ... Americans vehemently attacked the notion that rights were matters of `favor and grace,' given to the people from the government." United States v. Verdugo-Urquidez [58 U.S. Law Week 4263, Feb. 28, 1990]
Supreme Court Justice John Marshall:
"The power to tax involves the power to destroy." McCulloch v. Maryland [4 Wheat. 316, 431 (1819)]
Supreme Court Justice Holmes:
"The judge cannot direct a verdict it is true, and the jury has the power to bring in a verdict in the teeth of both law and facts. But the judge always has the right and duty to tell them what the law is upon this or that state of facts that may be found, and he can do the same none the less when the facts are agreed. If the facts are agreed the judge may state that fact also, and when there is no dispute he may say so although there has been no formal agreement. Perhaps there was a regrettable peremptoriness of tone - [254 U.S. 135, 139] but the jury were allowed the technical right, if it can be called so, to decide against the law and the facts - and that is all there was left for them after the defendant and his witnesses took the stand." Horning v. District of Columbia [254 U.S. 135 (1920)]
Supreme Court Justice Louis Brandeis, dissenting:
"But it is still the rule of the federal courts that the jury in criminal cases renders a general verdict on the law and the facts; and that the judge is without power to direct a verdict of guilty although no fact is in dispute. United States v. Taylor (C. C.) 11 Fed. 470; Atchison, etc., Ry. v. United States, 172 Fed. 194, 96 C. C. A. 646, 27 L. R. A. (N. S.) 756." Horning v. District of Columbia [254 U.S. 135 (1920)]
Supreme Court Justice Louis Brandeis:
"The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure, and satisfaction of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States [277 U.S. 438 (1928)]
Supreme Court Justice Louis Brandeis:
"Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States [277 U.S. 438 (1928)]
Supreme Court Justice Louis Brandeis:
"Decency, security and liberty alike demand that government officials shall be subjected to the rules of conduct that are commands to the citizen. In a government of laws, existence of the government laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, omnipresent teacher. For good or for ill, it reaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law, it invites every man to become a law unto himself. It invites anarchy." Olmstead v. United States [277 U.S. 438 (1928)]
Supreme Court Justice George Sutherland:
"For the saddest epitath which can be carved in memory of a vanished freedom is that it was lost because its possessors failed to stretch forth a saving hand while there was still time." [The Blue Press, June, 1994]
Supreme Court Justice George Sutherland:
"Constitutional provisions for the security of person and property are to be liberally construed, and 'it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.' Boyd v. United States, 116 U.S. 616, 635, 6 S. Ct. 524, 535 (29 L. Ed. 746); Gouled v. United States, 255 U. S. page 304, 41 S. Ct. 261, supra." Byars v. United States [273 U.S. 28 (1927)]
Supreme Court Justice Robert H. Jackson:
"Intellectual freedom means the right to re-examine much that has been long taken for granted. A free man must be a reasoning man, and he must dare to doubt what a legislative or electoral majority may most passionately assert. The danger that citizens will think wrongly is serious, but less dangerous than atrophy from not thinking at all. Our Constitution relies on our electorate's complete ideological freedom to nourish independent and responsible intelligence and preserve our democracy from that submissiveness, timidity and herd-mindedness of the masses which would foster a tyranny of mediocrity. The priceless heritage of our society is the unrestricted constitutional right of each member to think as he will. Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error." Communications Assn. v. Douds [339 U.S. 382 (1950)]
Supreme Court Justice Brennan:
"The State's fear that voters might make an ill-advised choice does not provide the State with a compelling justification for limiting speech. It is simply not the function of government to `select which issues are worth discussing or debating,' Police Department of Chicago v. Mosley, [31]408 U.S. 92, 96 (1972), in the course of a political campaign." Brown v. Hartlage [456 US 45 (1982)]
Supreme Court Justice Douglas:
"A state may not impose a charge for the enjoyment of a right granted by the federal constitution." Murdock v. Commonwealth of Pennsylvania [63 S.Ct. 870 319 U.S. 105 (1943)]
Supreme Court Justice Douglas:
"The power to tax the exercise of a privilege is the power to control or suppress its enjoyment." Murdock v. Commonwealth of Pennsylvania [63 S.Ct. 870 319 U.S. 105 (1943)]
Supreme Court Justice Douglas:
"As stated by the Supreme Court of Illinois in a case involving this same sect and an ordinance similar to the present one, a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution.' 9 Blue Island v. Kozul, 379 Ill. 511, 519, 41 N.E.2d 515, 519." Murdock v. Commonwealth of Pennsylvania [63 S.Ct. 870 319 U.S. 105 (1943)]
Supreme Court Justice Whittaker:
"It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, 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." Staub v. City of Baxley [355 U.S. 313 (1958)]
Supreme Court Justice Stewart:
"`It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, 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.' Staub v. Baxley, 355 U.S. 313, 322 See Above. And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license. The Constitution can hardly be thought to deny to one subjected to the restraints of such an ordinance the right to attack its constitutionality, because he has not yielded to its demands." Shuttlesworth v. City of Birmingham [394 U.S. 147 (1969)]
Supreme Court Chief Justice John Jay:
"The jury has the right to judge both the law as well as the fact in controversy." Georgia vs. Brailsford (1794)
Supreme Court Chief Justice Morrison R. Waite:
"The right there [in the Second Amendment] specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second Amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress." U.S. v. Cruikshank, et al. [U.S. Reports v.92 pp.551-553, Lawyer's Edition v.23 p.588 (1875)]
Supreme Court Chief Justice Roger B. Taney:
"It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went." Dred Scott v. Sandford [60 U.S. 393 (1856)]
Supreme Court Justice William B. Woods:
"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 perogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision [the 2nd Amendment] 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 public security, and disable the people from performing their duty to the general government." Presser v. Illinois [U.S. Reports v.116 p.252, Supreme Court Reports v.6 p.580, Lawyer's Edition v.29 p.615 (1886)]
Supreme Court Justice James C. McReynolds:
"No appearance for appellees." Unanimous opinion in U.S. v. Miller [U.S. Reports v.307 p.174, Supreme Court Reporter v.59 p.816, Lawyer's Edition v.83 p.1206 (1939)]
Supreme Court Justice James C. McReynolds:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158" Unanimous opinion in U.S. v. Miller [U.S. Reports v.307 p.174, Supreme Court Reporter v.59 p.816, Lawyer's Edition v.83 p.1206 (1939)]
Supreme Court Justice James C. McReynolds:
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." Unanimous opinion in U.S. v. Miller [U.S. Reports v.307 p.174, Supreme Court Reporter v.59 p.816, Lawyer's Edition v.83 p.1206 (1939)]
Supreme Court Justice Frankfurter:
"Law itself is on trial as the `stern daughter of the voice of God.'" Sacher v. United States [343 US 1 (1952)]
Supreme Court:
"Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." Cases v. United States [131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943)]
Supreme Court:
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda v. Arizona [384 US 436 p. 491 (1966)]
United States Court of Appeals, 8th Circuit:
"Although an individual's right to bear arms is constitutionally protected, see United States v. Miller, 307 U.S. 174, 178-179 (1939), the possession of a gun, especially by anyone that has been convicted of a violent crime, is nevertheless a highly regulated activity, and everyone knows it." U.S. v. Hutzell, No. 99-3719, July 5, 2000
United States Court of Appeals, 5th Circuit:
"The right to defend oneself against deadly attack is fundamental." U.S. v. Panter [Federal Reporter, 2nd series, pp. 268-271 (1982)]
United States Court of Appeals, 7th Circuit:
"There is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law. But there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order." Bowers v. DeVito [Federal Reporter, Second Series v.686F.2d p.618 (7th Circuit, 1982)]
United States District Court, 5th Circuit:
"Congress may regulate an individual's activity if such activity "exerts a substantial economic effect on interstate commerce," regardless of whether that effect is direct or indirect. Wickard v. Filburt, 317 U.S. 111, 125, 63 S.Ct. 82, 89, 87 L.Ed. 122 (1942). As broad as that language seems, the power of Congress to regulate under the Commerce Clause is not without limits. This Court is concerned over the increasing federalization of crime by Congress, when such federalization occurs in apparent disregard of the Tenth Amendment mandate that rights not delegated to the federal government be reserved to the States. Early in its Lopez opinion the Fifth Circuit wrote, "[T]he Tenth Amendment, though it does not purport to define the limits of the commerce power, obviously proceeds on the assumption that the reach of that power is not unlimited, else there would be nothing on which the Tenth Amendment could operate." Lopez at 1347. While this Court expresses no opinion as to the power of Congress to regulate possession of machine guns at a national level, it simply finds that Congress made no findings, explicit or implied, to support its authority to ban the mere possession of machine guns. The Tenth Amendment is still a part of the Constitution. It is not
difficult for Congress to find an interstate nexus as a part of its legislative history process or for Congress to require an interstate nexus as an element of the crime itself. [footnote 6] In light of the Fifth Circuit's recent holding in Lopez, this Court finds 18 U.S.C. section 922(o) unconstitutional and orders the indictment against Defendant Charles Bownds dismissed." U.S. v. Bownds, 860 F. Supp. 336 (S.D Miss. 1994)
United States District Court, 5th Circuit:
"Defendant Charles Bownds was indicted for a violation of 18 U.S.C. section 922(o), which reads in its entirety as follows:
(o)(1) Except as provided in paragraph (2), it shall be
unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to-
(A) a transfer to or by, or possession by or under the
authority of, the United States or any department or agency
thereof or a State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun
that was lawfully possessed before the date this subsection
takes effect.
18 U.S.C. section 922(o). The government alleges that Charles Bownds purchased two Sten machineguns and other firearms components at a gun show in New Jersey in early 1991, for $300. In April, 1991, Mr. Bownds allegedly sold the machineguns to Randy and Danny Hammond in Jackson, Mississippi, for $1500." U.S. v. Bownds, 860 F. Supp. 336 (S.D Miss. 1994)
U.S. District Judge Wayne Anderson:
"The erosion of the rights of people on the other side of town will ultimately undermine the rights of each of us." Speaking of warrantless searches of Chicago housing projects, Pittsburgh Post-Gazette, April 8, 1994
Subcommittee on the Constitution of the Senate Judiciary Committee:
"The Second Amendment right to keep and bear arms therefore, is a right of the individual citizen to privately possess and carry in a peaceful manner firearms and similar arms. Such an 'individual rights' interpretation is in full accord with the history of the right to keep and bear arms, as previously discussed. It is moreover in accord with contemporaneous statements and formulations of the right by such founders of this nation as Thomas Jefferson and Samuel Adams, and accurately reflects the majority of the proposals which led up to the Bill of Rights itself. A number of state constitutions, adopted prior to or contemporaneously with the federal Constitution and Bill of rights, similarly provided for a right of the people to keep an bear arms. If in fact this language creates a right protecting the states only, there might be a reason for it to be inserted in the federal Constitution but no reason for it to be inserted in state constitutions. State bills of rights necessarily protect only against action by the state, and by definition a state cannot infringe its own rights; to attempt to protect a right belonging to a state by inserting it in a limitation of the state's own powers would create an absurdity. The fact that the contemporaries of the framers did insert these words into several state constitutions would indicate clearly that they viewed the right as belonging to the individual citizen, thereby making it a right which could be infringed either by state or federal government and which must be protected from infringement by both." 97th Congress, Second Session (February, 1982), SuDoc# Y4.J 89/2: Ar 5/5
Subcommittee on the Constitution of the Senate Judiciary Committee:
"The conclusion is thus inescapable that the history, concept and wording of the Second Amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner." 97th Congress, Second Session (February, 1982), SuDoc# Y4.J 89/2: Ar 5/5
Subcommittee on the Constitution of the Senate Judiciary Committee:
"Historical evidence, starting with English common law and progressing, to the British Declaration of Rights in the 17th century, to the American Bill of Rights a century later, overwhelmingly supports that individual, rather than collective interpretation, be given the Second Amendment." 97th Congress, Second Session (February, 1982), SuDoc# Y4.J 89/2: Ar 5/5
Subcommittee on the Constitution of the Senate Judiciary Committee:
"That the National Guard is not the `Militia' referred to in the Second Amendment is even clearer today. Congress had organized the National Guard under its power to 'raise and support armies' and not its power to 'Provide for organizing, arming and disciplining the militia.' The modern National Guard was specifically intended to avoid status as the constitutional militia, a distinction recognized by 10 U.S.C. 311(a). Title 32 U.S.C. in July 1918 completely altered the definition of the militia and its service, who controls it and what it is. The difference between the National Guard and Regular Army was swept away, and became a personnel pay folder classification only, thus nationalizing the entire National Guard into the Regular Standing Armies of the United States." 97th Congress, Second Session (February, 1982), SuDoc# Y4.J 89/2: Ar 5/5
United States Code:
"The militia of the United States consists of all able-bodied males at least 17 years of age and ... under 45 years of age." Title 10, United States Code (311(a) (also see Title 10, USC (312, Title 32 USC (109) and Title 32 USC (313))
Sixteenth American Juriprudence, Second Edition, Section 177:
"The general rule is that an unconstitutional statute, though having formed in nature of law, is in reality no law, but is wholly void and ineffective for any purpose, since unconstitutionality dates from the time of its enactment and not merely from the date of decision so branding it. An unconstitutional law in legal contemplation is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection and justifies no acts performed under it.
No one is bound to obey an unconstitutional law and no courts are bound to enforce it."