Part of the Heller methodology is the use of text, history, and tradition of regulations.

Not discussions, not proposed laws, not policy, but actual regulations. That is, laws passed by the legislatures of the state or federal government.

Today, it is pretty easy to gather the current laws. It is more difficult to get historical records. “The Court House burned down.” isn’t just an excuse, it actually happened, in several places.

Remember that in the war of 1812, the British marched into Washington, D.C. and burned large parts of it.

So what is a rogue court and an infringing state to do when they can’t find a regulation to match their proposed infringement?

Find somebody who made it up!

Item, it is enacted, that no man great nor small, of what condition soever he be, except the King’s servants in his presence, and his Ministers in executing of the King’s precepts, of of their office, and such as be in their company assisting them, and also upon a cry made for arms to keep the peace, and the same in such places where such acts happen, be so hardy to come before the King’s justices, or other of the King’s Ministers doing their office with force and arms, nor bring no force in affray of peace, nor to go nor ride armed by night nor by day, in fairs, markets nor in the presence of the King’s Justices, or other ministers, nor it [sic, likely “in”] no part elsewhere, upon pain to forfeit their armour to the King, and their bodies to prison at the King’s pleasure. And that the King’s Justices in their presence, Sheriffs and other ministers in their bailiwicks, Lords of Franchises, and their bailiffs in the same, and Mayors and Bailiffs of cities and boroughs, within the same cities and boroughs, and boroughholders, constables and wardens of the peace within their wards shall have power to execute this etc. [in original] And that the Justices assigned, at thier coming down into the country, shall have power to enquire how such officers and lords have exercised their offices in this case, and to punish them whom they find that have not done that which pertain to their office.
Francois Xavier Martin, A Collection of Statutes of the Parliament of England in Force in the State of North Carolina, 60-61 (Newbern 1792) | Duke Center for Firearms LawDuke Center for Firearms Law, (last visited Dec. 16, 2023)

The quote was taken from the Duke Center for Firearms Law web page.

Something stands out in that “law,” claiming to be from 1792. I couldn’t put my finger on it, but our readers are much sharper than I am.

My memory is pretty poor, but I seem to remember that the American Revelation ended September 3, 1783. The author of this piece of “history” wants us to believe that nearly a decade later, North Caroline was still referring to the “King” and “Lords”?

This “regulation” does not pass the sniff test. I believe it to be fabricated. When it was fabricated, I do not know. But for the Second Circuit court to depend on it indicates that they did not treat their job seriously.

The Second Circuit then cites to —1786 Va. Acts 35. (Ch. 49, An Act Forbidding and Punishing Affrays). | Duke Center for Firearms LawDuke Center for Firearms Law, (last visited Dec. 16, 2023). This should be familiar to the Second Circuit, and to those of us in the Second Amendment Community.

Respondents next direct our attention to three late-18th-century and early-19th-century statutes, but each parallels the colonial statutes already discussed. One 1786 Virginia statute provided that “no man, great nor small, [shall] go nor ride armed by night nor by day, in fairs or markets, or in other places, in terror of the Country.” Collection of All Such Acts of the General Assembly of Virginia ch. 21, p. 33 (1794).14 A Massachusetts statute from 1795 commanded justices of the peace to arrest “all affrayers, rioters, disturbers, or breakers of the peace, and such as shall ride or go armed offensively, to the fear or terror of the good citizens of this Commonwealth.” 1795 Mass. Acts and Laws ch. 2, p. 436, in Laws of the Commonwealth of Massachusetts. And an 1801 Tennessee statute likewise required any person who would “publicly ride or go armed to the terror of the people, or privately carry any dirk, large knife, pistol or any other dangerous weapon, to the fear or terror of any person” to post a surety; otherwise, his continued violation of the law would be “punished as for a breach of the peace, or riot at common law.” 1801 Tenn. Acts pp. 260–261.

A by-now-familiar thread runs through these three statutes: They prohibit bearing arms in a way that spreads “fear” or “terror” among the people. As we have already explained, Chief Justice Holt in Sir John Knight’s Case interpreted this in Terrorem Populi element to require something more than merely carrying a firearm in public. See supra, at 34–35. Respondents give us no reason to think that the founding generation held a different view. Thus, all told, in the century leading up to the Second Amendment and in the first decade after its adoption, there is no historical basis for concluding that the preexisting right enshrined in the Second Amendment permitted broad prohibitions on all forms of public carry.
New York State Rifle & Pistol Assn., Inc. V. Bruen, 142 S.Ct. 2111, 41–42 (U.S. 2022)

In other words, the Supreme Court has already looked at this law and found that it does not support infringements.

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By awa

11 thoughts on “When A Rogue Court Proves They Are Disingenuous”
  1. There’s a reason historians use Turabian aka Chicago style citations for items like this. That cite is incomplete and does not provide proper reference to accurately portray where it came from.

    I’ve looked at other Duke Law’s info on their gunlaw page and found a number of them to be incomplete and/or inaccurate.

    Perfect for gun control advocates.

      1. Not fabricated, perhaps, but definitely deceptive if that little tidbit isn’t with the material at Duke.

      2. So they’re claiming the date the collection was published as the date the law was passed? Completely dishonest.

    1. A little more digging and research. It may be a publication from the US but again, includes laws that were in force going back to the original founding of the colony. So should one actually look at the book, one would see when the noted law was ‘in force’, not that it necessarily was in 1892. So deceptive, dishonest, or incompetent. Pick one or more.

      Here’s a copy for sale w/ some more info.

  2. Funny how the anti Freedoms say the Second Amendment is “ outdated and irrelevant in today’s society “, but they fabricate a regulation from that period and claim it relivent… fuk em, fuk em all.

    1. Yup. Also reminds me of something I saw the other day … something about ignoring the writings of old white men more than a century dead. Like Marx, for instance.

  3. Seems to be a bit of an Art.1, Sec.9, Cl.8 Constitutional violation there; Ergo ‘void at inception’.

    And if it is NOT void, then there’s that sticky bit of there being no actual king. Since there is no actual ‘king’ for this to operate under, there are also no ‘king’s men’ to privilege, and it would apply equally to all citizens (see also: Ammend. 14), be they in the employ of .Gov or not with the net result being that all .gov actors in the state would be disarmed (read: prevented from carrying) as well.

    You don’t get to have it both ways. Either EVERYONE can carry, or NO ONE can carry; Even .gov goons.

    1. There were “King’s men” when it was written … in the 1300s. Look up the Statute of Northampton; Chapter 3 is the part about the King’s men carrying arms.
      Even then, it was not understood at the time to be a broad prohibition on normal citizens/subjects carrying arms for lawful purposes — only “in fairs, markets, [or] in the presence of the justices or other ministers” (the latter of which is no different from how the Secret Service maintains roving “gun-free zones” around political VIPs), and “in affray of the peace”.
      We can read the “in affray of the peace” as roughly equivalent to, “to the terror of the public”, and indeed that’s how it was understood in the 1600s and 1700s, when similar language was on the books in America. Peaceably carrying arms for any lawful purpose was lawful, carrying arms with evil intent and/or to terrorize and frighten the public was not — and that “evil intent” was an essential element of the alleged crime that had to be proven. Actual court records from the era show that people were acquitted of charges of violating these statutes because they went armed for self-defense, and did not threaten or frighten others (i.e. “evil intent” couldn’t be proven, so the whole case fell apart).
      But New York State omits that bit from their briefs and argues that the Statute of Northampton supports their prohibition on everyone’s right to carry (excepting State enforcers).
      I wonder why they might leave that part out…. Seems kinda important….

  4. The passage mentioning all the King’s men who are allowed to carry weapons, is excerpted from the Statute of Northampton, which was passed in England in the 1300s (1328, if memory serves, but the 1300s anyway).
    It was considered in some colonies here, but I don’t believe any ever formally enacted it.
    But you spotted one of the glaring logical problems: having just fought a war for independence from England, why on Earth would a newly-freed American state enact a law forbidding the carry of arms, except for the English King’s men?
    From a legal perspective, under Heller and Bruen, text, history, and tradition are to be based around 1792, on actual laws and regulations from that era. Not the 1300s, and not a proposal that was never enacted in America!
    I for one am looking forward to the judicial smackdown coming for this nugget of idiocy, but unfortunately, until it comes the challenged law is being allowed to stand based on this “logic”.

  5. When it comes to 2A questions the subject is NOT complicated or difficult. What part of “SHALL NOT BE INFRINGED”. Is so difficult to grasp. It’s just about the simplest statement possible.

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