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The Right to Bear Arms? What History Tells Us.

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  • The law does "not extend to prohibit a man from keeping a gun for his necessary defence." Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739).

    "The mere having a gun was no offense . . . for a man may keep a gun for the defense of his house and family. "Mallock v. Eastley, 87 Eng. Rep. 1370, 1374 (K.B. 1744).

    "A gun may be kept for the defense of a man’s house." Wingfield v. Stratford, 96 Eng. Rep. 787 (K.B. 1752);

    "It is not an offence to keep or use a gun."The King v. Thompson, 100 Eng. Rep. 10, 12 (K.B. 1787).

    "A gun may be used for other purposes, as the protection of a man's house." Rex v. Hartley, II Chitty 1178, 1183 (1782).

    A common jury instruction of the period in question on the meaning of the right to arms in the English Bill of Rights stated in part:
    Those do not represent the meaning of the right to keep and bear arms as it existed in America in 1789. Plus, they're all bogus or taken out of context and used by you to mislead.

    1776 Pennsylvania Constitution: That the people have a right to bear arms for the defence of themselves and the state.
    No right to keep and bear arms there. Only the right to bear arms for defense, which means the right to join with others to form a military force for defense.

    1777 Vermont Constitution: That the people have a right to bear arms for the defence of themselves and the State
    No right to keep and bear arms there. Only the right to bear arms for defense, which means the right to join with others to form a military force for defense.
    Last edited by Miss You; 19 Nov 08, 09:33.

    Comment


    • Originally posted by Miss You View Post
      Those do not represent the meaning of the right to keep and bear arms as it existed in America in 1789.
      Yes they do. They are court decisions and jury instructions specifically protecting the right to keep arms for self defense.

      Originally posted by Miss You View Post
      Plus, they're all bogus or taken out of context and used by you to mislead.
      Interesting assertion, totally false of course, but interesting none the less. Perhaps you could actually back up your words? I doubt if you have even read the cases cited, but rest assured, I have. The cases are not available on the web as far as I can determine, but they are referenced in many places on the web. For example, The US Department of Justice had this to say about Rex v Gardner and some of the other cases I cite:

      In eighteenth-century English, an individual could "keep arms," and keep them for private purposes, unrelated to militia duty, just as he could keep any other private property, and the phrase was commonly used in this sense. For example, in Rex v. Gardner (K.B. 1738), a defendant charged with "keeping a gun" in violation of a 1706 English statute (which prohibited commoners from keeping specified objects or "other engines" for the destruction of game) argued that "though there are many things for the bare keeping of which a man may be convicted; yet they are only such as can only be used for destruction of the game, whereas a gun is necessary for defence of a house, or for a farmer to shoot crows." The court agreed, reasoning that "a gun differs from nets and dogs, which can only be kept for an ill purpose." (46) The Court of Common Pleas six years later treated Gardner as having "settled and determined" that "a man may keep a gun for the defence of his house and family," (47) and in 1752 the King's Bench reiterated that "a gun may be kept for the defence of a man's house, and for divers other lawful purposes." (48) The same usage appeared in an earlier prosecution of a man for "keeping of a gun" contrary to a statute that barred all but the wealthy from privately owning small handguns.

      MEMORANDUM OPINION FOR THE ATTORNEY GENERAL, August 24, 2004
      The footnotes in the text are as follows:

      46
      2 Strange Rep. 1098, 1098 (applying 5 Ann., c. 14 (1706)); see Rex v. Gardner, 87 Eng. Rep. 1240, 7 Mod. Rep. 279 (K.B. 1739) (apparently later case, but similar); id. at 1241 (defendant, arguing that “to charge only that he kept a gun is improper, for it includes every man that keeps a gun,” and that guns are kept “for the defence of a man’s house”); id. (Lee, C.J.) (words of statute “do not extend to prohibit a man from keeping a gun for his necessary defence”); id. (Probyn, J.) (“farmers are generally obliged to keep a gun, and are no more within the Act for doing so than they are for keeping a cabbage-net”).

      47
      Mallock v. Eastly, 87 Eng. Rep. 1370, 1374, 7 Mod. Rep. 482 (C.P. 1744).

      48
      Wingfield v. Stratford, 96 Eng. Rep. 787, 787, Sayer Rep. 15 (K.B. 1752).

      49
      King v. Silcot, 87 Eng. Rep. 186, 186, 3 Mod. Rep. 280 (K.B. 1690) (italics omitted) (interpreting 33 Hen. VIII, c. 6 (1541), and quashing indictment because it did not specifically allege that defendant’s income was insufficient when he kept the gun).
      http://www.usdoj.gov/olc/secondamendment2.pdf

      Miss You, you really have no idea of exactly who you are dealing with here. If you did, you would cease with the wild accusations and scurry off to some other forum in which you could spew your fasehoods and distortions.

      Do you really wish me to go through Wilson and the meaning of the Pennsylyvania Constitutional provision... AGAIN??? Seems we might have done that before.
      Last edited by legaleagle_45; 19 Nov 08, 10:14.

      Comment


      • Originally posted by Miss You View Post
        No right to keep and bear arms there. Only the right to bear arms for defense, which means the right to join with others to form a military force for defense.
        Wrong again. Both quotes say "in defense of themselves and the state". You like to conveniently ignore the "themselves" part.

        Comment


        • Originally posted by legaleagle_45 View Post
          They are court decisions and jury instructions specifically protecting the right to keep arms for self defense.
          What exactly was the American law that did "not extend to prohibit a man from keeping a gun for his necessary defence", that was mentioned in the case of Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739)?

          Where in Rex v. Gardner did the court say there was an individual right to keep and bear arms for personal defense in America in 1789?
          Last edited by Miss You; 19 Nov 08, 13:36.

          Comment


          • Originally posted by Miss You View Post
            What exactly was the American law that did "not extend to prohibit a man from keeping a gun for his necessary defence", that was mentioned in the case of Rex v. Gardner, 87 Eng. Rep. 1240, 1241 (K.B. 1739)?
            You of course realize there was no "American law" at all in 1739. British law was the focal point. The applicable British law at issue for Rex v. Gardner was 5 Ann., c.14 (1706).

            Originally posted by Miss You View Post
            Where in Rex v. Gardner did the court say there was an individual right to keep and bear arms for personal defense in America in 1789?
            Pretty lame question, since a case decided in 1739 would not say anything about the state of the law in 1789. However, and as I assume you have a modicum of intelligence, the common law is based upon precedent. Prexisting case law declares the present state of the law until that case has been overruled by some subsequent case. Therefore, the burden is now upon you to find some case which overruled the holding of Rex v. Gardner and thereby altered the finding that a man "may keep a gun for his necessary defence" at some time prior to 1789.
            Last edited by legaleagle_45; 19 Nov 08, 13:44.

            Comment


            • Originally posted by legaleagle_45 View Post
              If it was not a preexisting right, the use of such language would not make sense.
              It does not. I may be missing something here again, but isn't a tongue a vehicle for understanding?

              P.S. I've had to up my letter count in words there as a gesture of compromise.
              Tactics are based on Weapons... Strategy on Movement... and Movement on Supply.
              (J. F. C. Fuller 1878-1966)

              Comment


              • Originally posted by legaleagle_45 View Post
                You of course realize there was no "American law" at all in 1739. British law was the focal point. The applicable British law at issue for Rex v. Gardner was 5 Ann., c.14 (1706).
                Was there any "American law" in the late 1700's, when the Second Amendment was made?

                Pretty lame question, since a case decided in 1739 would not say anything about the state of the law in 1789.
                I see, so the British "law" which didn't prohibit a man from keeping a gun for his necessary defense wasn't even a law of one of the 13 states, as of 1789. Did the British "law" in question actually say a man had a right to keep a gun?

                PS: If a court opined that a particular English game law, regarding the killing of rabbits at night, didn't forbid one from knowingly and intentionally causing the death of a stupid person, and that one who killed a stupid person, didn't violate the game law; would that opinion establish a general legal right to kill stupid people, under the game law that forbid the killing of rabbits at night?

                Is your name really David Barton?
                Last edited by Miss You; 19 Nov 08, 15:35.

                Comment


                • Originally posted by Miss You View Post
                  Was there American law when the Second Amendment was made?
                  Obviously, but totally irrelevant. A more relevant question would be "was there a law which prohibited a man from keeping a gun." See, you have the prexisiting law as enunciated with Rex v Gardner to deal with... because unless the common law was changed by statute or decision, it will remain in force, even in America.

                  Originally posted by Miss You View Post
                  I see, so the "law" which didn't prohibit a man from keeping a gun for his necessary defense wasn't even a law of one of the States, as of 1789?
                  Correct, but the law which provided that "a man may keep a gun for the defence of his house and family" was the law in 1789. It was part of the common law which we inherited and it will retain its vitality unless and until it is overruled by subsequent case law or subsequent statute. If you had even a scintilla of legal knowledge concerning this subject, you would not even need to ask such a fool-hardy question.


                  Originally posted by Miss You View Post
                  Did the "law" in question actually say a man had a right to keep a gun?
                  That law did not, otherwise Rex v Gardner would have not been required to find that the law did not extend to prohibit such... come on, you really need to put your thinking cap on. However, the decision in Rex v Gardner and the other cases relied upon were decided upon the basis of another English Law, to wit: 1 W. & M., Sess. 2, c.2, § 1 (1689).... Now lets see if you have some real intellectual firepower. Do you know what that law is? Can you defeat its application? (Well, you can't defeat its application, but will you be able to formulate an intelligent attempt to defeat it, or must I suffer through something similsr to "Tucker was praising the English for disarming the population of England"?)

                  Comment


                  • Ahhh, you added a PS

                    Originally posted by Miss You View Post
                    PS: If a court opined that a particular English game law, regarding the killing of rabbits at night, didn't forbid one from knowingly and intentionally causing the death of a stupid person, and that one who killed a stupid person, didn't violate the game law; would that opinion establish a general legal right to kill stupid people, under the game law that forbid the killing of rabbits at night??
                    Nope, but a more general proclamation that says a man can knowingly and intentionally cause the death of a stupid person is not dependant upon the application of any particular law. You are lucky the Courts of England made no such proclamation, huh? But they did proclaim: "a man may keep a gun for the defence of his house and family"

                    Originally posted by Miss You View Post
                    Is your name really David Barton?
                    Never heard of him, so nope that is not me.

                    Comment


                    • Originally posted by legaleagle_45 View Post
                      "a man may keep a gun for the defence of his house and family"
                      Yup. Works for me. Simple words that you can almost directly translate back into Old English, even German.
                      Tactics are based on Weapons... Strategy on Movement... and Movement on Supply.
                      (J. F. C. Fuller 1878-1966)

                      Comment


                      • What were the legal issues in the case of Rex v Gardner?

                        Comment


                        • Originally posted by Miss You View Post
                          What were the legal issues in the case of Rex v Gardner?
                          Did Rex actually bite a Gardener? Lordy, that wouldn't be the first time. If it was a postman there'd be a suit.
                          Tactics are based on Weapons... Strategy on Movement... and Movement on Supply.
                          (J. F. C. Fuller 1878-1966)

                          Comment


                          • Originally posted by Miss You View Post
                            What were the legal issues in the case of Rex v Gardner?
                            You are testing me?

                            ROFLMAO!

                            Ok, you asked a specific question, I will provide a specific answer. There was only one legal issue in Rex v Gardner, that being the sufficiency of an indictment to support a criminal charge.

                            Any other questions? LOL!!!

                            Comment


                            • I thought the issue was whether a gun was "an engine to destroy game."
                              Last edited by Miss You; 19 Nov 08, 16:57.

                              Comment


                              • Originally posted by Miss You View Post
                                I thought the issue was whether a gun was "an engine to destroy game."
                                Actually, Gardner challenged the indictment based upon the insufficiency of the indictment to allege anything other than that he had a gun. The 1707 Statute of Anne prohibited unqualified persons from possessing certain listed hunting devices "or any other Engines to kill and destroy the Game". The court quashed (not to be confused with squashed) the indictment reasoning that a gun "differs from nets and dogs, which can only be kept for an ill purpose...." and that.... "a gun is necessary for defense of a house, or for a farmer to shoot crows."

                                Comment

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