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  • March 14, 2018 4:51 PM | Anonymous member

    "At the time of the founding" eighteenth century political philosopher James Burgh would write,

    Some things are right in theory, for instance, but not in practice, and contrariwise… In a country which pretends to be free, and where, consequently, the people ought to have weight in the government, it is peculiarly necessary that the people be possessed of just notions of the interest of their country, and be qualified to distinguish between those who are faithful to them, and those who betray them. [Burgh, J. (1971). POLITICAL DISQUISITIONS: OR, An ENQUIRY into public ERRORS, DEFECTS, and ABUSES. Illustrated by, and established upon FACTS and REMARKS extracted from a Variety of AUTHORS, ancient and modern. CALCULATED To draw the timely ATTENTION of GOVERNMENT and PEOPLE (Vol. I). New York: Da Capo Press. Page xi.]

    The question for us as Second Amendment supporters is, how do we properly explain the true meaning of the Second Amendment to “those who betray the be interests of their country”?

    Fourteen years before he died, James Madison would write:

    A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives… Learned Institutions ought to be favorite objects with every free people. They throw that light over the public mind which is the best security against crafty & dangerous encroachments on the public liberty. [James Madison to W. T. Barry, 4 Aug. 1822. Volume 1, Chapter 18, Document 35. (1987). Retrieved 7 18, 2008, from The Founders' Constitution:                                                              ]

    There are many people who claim that they know what the Second Amendment truly means but just are not fully armed with the power of knowledge. Few can explain in one sentence what the Amendment means and fewer still, who have actually "studied the subject like students."  

    It is no answer to say:  

    • "If guns are outlawed, only outlaws will have guns."
    • "Gun control is holding your gun with two hands."
    • "What part of “shall not be infringed” don’t you understand?"

    But how do we “throw that light over the public mind” and "prevent dangerous encroachments on the public liberty?” How do we properly explain the Second Amendment? 

    Like Burgh’s Political Disquisitions, this essay is an exploration into 350 years of facts into an attempt to distinguish between truth and fiction in the right to bear arms. Burgh would quote Sir William Temple and write,

    None can be said to know things well, who do not know them in their beginnings.

    Knowing the facts from the beginning is how this essay came to be in 2003. Like Burgh, “I was sure that there was a right and wrong in government, as in other things.” [Burgh,  DISQUISITIONS (Vol. I). Pg. v.] What you are about to read is the culmination of 15 years of investigating the truth.

    John Adams would note in A Defence of the Constitutions of Government of the United States of America that,

    We often hear and read of free states, a free people, a free nation, a free country, a free kingdom, and even of free republics; and we understand, in general, what is intended, although every man may not be qualified to enter into philosophical disquisitions concerning the meaning of the word liberty, or to give a logical definition of it. [Adams, J. (1797). A Defence of the Constitutions of Government of the United States of America. Philadelphia: Budd and Bartman. Page 122. All citations of this work are from the Law Book Exchange Reprint. Union NJ, (2001)]

    Adams uses the phrase free state four times in the first volume, several more times in the second & third volumes and actually gives the definition a free state in the later.

    Aside from being a member of both the First and Second Continental Congresses, a signer of The Declaration of Independence (hereinafter Declaration) and the second President of the United States, Adams was the Vice President under Washington when the Bill of Rights was ratified. Yet Adams’ definition goes virtually un-noticed “by students of the subject.” [See Burton v. Sills 248 A. 2d 521 - NJ: Supreme Court 1968 at 97 (calling Second Amendment Law Review authors who erroneously claimed that “the language of the Second amendment … refers to the collective right … which today is characterized as the state National Guard ... students of the subject.")]

    In his third volume Adams asks,

    What is a free state? It is plain our author means a single assembly of representatives of the people, periodically elected, and vested with the supreme power. This is denied to be a free state. [Adams A Defence supra, Vol. III Pg. 292. (Referring to Marchamont Needham as “our author.”)]

    No New Jersey Court gives the logical definition of the free state included with their theory that the Second Amendment is a collective right, or that Heller only allows arms to be borne in the home.

    New Jersey Courts continue to maintain that even though Heller rejected Burton’s “the militia is the National Guard” and even though McDonald applies the right to bear arms to the State of New Jersey, that there is no difference in the keep arms and bear arms clauses in the 2nd Amendment. 

    But we don’t even need to argue over the operative clause in the Second Amendment to prove that we as the "fit elements of society" [See Burton at 97 & 105] have a right to be issued a 2C:58-4 Permit to Carry a Handgun (as long as we pass(ed) the 2C:58-3 background checks and our need is “lawful.” [See Heller at 2787 and 2818 (the core lawful purpose of the Second Amendment is self-defense.)]

    As Sir William Temple said, “to know thing well we must know them in their beginnings.” So here we go. The definition of a free state was available nearly 350 years before Christ. The New Jersey Supreme Court has continuously failed to understand what a free state is. And although touching on it, the Heller Court only spent one page on its explanation, leaving the meaning of a free state over simplified with ‘(t)he phrase “security of a free state” meant “security of a free polity,” not security of each of the several States…’ [Heller at 2800.]

    Aristotle in A Treatise of Government would not only give several explanations of the definition of a free state, Aristotle would use the term on fifty-nine separate occasions. The opponents of the right to bear arms call themselves, “students on the subject,” [Burton at 97 citing Feller and Gotting (claiming the Militia of the Second Amendment is the National Guard)] and,

    shelter themselves under the fashion of the times, and join the general censure of Aristotle as a blockhead*; when, if they were pressed to know from what part of his writings they formed so decisive an opinion, they would be forced (and surely with a blush) to acknowledge, that they never read a single page in any of them, from whence to form a judgment from their own experience.” [Aristotle. (1776). A Treatise on Government. (A. William Ellis, Trans.) London: T. Payne, B. White, T. Cadel. Page v-vi. (John Adams Library copy.) (* Reads, “Aristotle, whom I don’t take to be so great a blockhead as those do who never read him.” Citing Fielding’s Tom Jones.)]

    Who is the blockhead? Aristotle who gave the definition to the founders or the New Jersey Courts who never actually read any first source historical sources and relied on Feller and Gotting who claimed the militia of the Second Amendment is the National Guard, an appendage of the standing Army? 

    Another signer of the Declaration, twice elected to the Continental Congress, and signer of the Constitution who became, not President, but an Associate Justice of the Supreme Court, was James Wilson who also clearly gives the definition of a free state, and tells us that,

    In this study all men are interested: it is rich in delight: it is inestimable in importance: its maxims should he known by every citizen of every free state… [Wilson, J. (1804). The Works of the Honourable James Wilson, L.L.D. Philadelphia: Lorenzo Press, Printed for Bronson and Chauncey. Page XXXX. ]

    Wilson goes on to explain why the maxims of a free state should he known by every citizen in one:

    Reasons, and very sufficient ones, were suggested, why this should be the case. A new reason, striking and illustrious, now appears, why the maxims of this law ought to be particularly known and studied by every citizen of the United States. To every citizen of the United States, this law is not only a rule of conduct, but may be a rule of decision. As judges and as jurors, the administration of this law is, in many important instances, committed to their care. [Wilson, J. (1804). The Works of the Honourable James Wilson, L.L.D. Philadelphia: Lorenzo Press, Printed for Bronson and Chauncey. Page XXXX. See also Tucker T 308.]

    Like Wilson, Adams testified the same truth (citing Florence) in that these maxims concern every person:

    since the interest of “monarchy" (that is, arbitrary power, or the government of men) may reside in a consul as well as in a king; in a dictator as well as in a consul; in the hands of many as well as of a single person; and that its custom hath been to lurk under every form, in the various turns of government; it concerns every people, in a state of freedom, to keep close to the rules of a free state for the turning out of monarchy, whether simple or compound, both name and thing, in one or many ; so they ought ever to have a reverend and noble respect of such founders of free states and commonwealths, as shall block up the way against monarchic tyranny, by declaring for the liberty of the people, as it consists in a due and orderly succession of authority in their supreme assemblies… It is very true, that a people who have declared themselves a free state, should know what freedom is, and have it represented in all its lively and lovely features, that they may grow zealous and jealous over it. They should also be made acquainted, and thoroughly instructed in the means and rules of its preservation against the adulterous wiles and rapes of any projecting sophisters that may arise. [Adams, J. (1797). A Defence supra (Vol. III). Page 413 Emphasis by Factor.]

    Adams uses sophisters here as one using sophistry, a method of argumentation that seems clever but is actually flawed or dishonest. [Encarta Dictionary: English (North America).] So we have to seriously consider  Adams' application of sophister when reading JUSTICE JACOBS’ decisions in both Burton and Siccardi v. State, 284 A. 2d 533 - NJ: Supreme Court 1971. Or when Loretta Weinberg tells us that “urgent necessity is legislative intent”.

    In his Heller dissent, JUSTICE STEVENS would mock JUSTICE SCALIA’S opinion,

    Thus, the proeme, or preamble, is often called in to help the construction of an act of parliament.”* In light of the Court’s invocation of Blackstone as “‘the preeminent authority on English law for the founding generation,’”** its disregard for his guidance on matters of interpretation is striking. [Heller post at 2838-39, STEVENS, J., dissenting. Citing at * 1 Commentaries on the Laws of England 59–60 (1765) (hereinafter Blackstone). At ** citing 2798 quoting Alden v. Maine, 527 U. S. 706, 715 (1999)).]

    What is so striking is that STEVENS must have missed that Blackstone wrote,

    In a land of liberty, it is extremely dangerous to make a distinct order of the profession of arms. In absolute monarchies this is necessary for the safety of the prince, and arises from the main principle of their constitution, which is that of governing by fear: but in free states the profession of a soldier, taken singly and merely as a profession, is justly an object of jealousy. In these no man should take up arms, but with a view to defend his country and it's laws: he puts not off the citizen when he enters the camp; but it is because he is a citizen, and would wish to continue so, that he makes himself for a while a soldier. The laws therefore and constitution of these kingdoms know no such state as that of a perpetual standing soldier, bred up to no other profession than that of war: and it was not till the reign of Henry VII, that the kings of England had so much as a guard about their persons. [Blackstone, William. Commentaries on the Laws of England: A Facsimile of the First Edition of 1765--1769. Chicago: University of Chicago Press, 1979. Vol. 1, pg. 395.]

    STEVENS obviously completely missed Blackstone’s comparison of an absolute monarchy with a free state, But we do know this from Blackstone, in free states citizens take up arms to defend the country and it's laws.

    Remember, what John Adams said, "as judges and as jurors, the administration of this law is, in many important instances, committed to our care." In order to fully understand the Second Amendment and to refute any claim, by STEVENS or anyone else, that “the text of the Amendment” leaves “no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution,” [Heller post at 2822 STEVENS, J., dissenting.] as well as to completely understand the difference between keep arms and bear arms; we as citizens, and the Courts, must fully understand the definition of a free state. And to understand the definition we must remember that Adams told us there were "rules of a free state" and we "need to keep them close for the turning out of monarchy."

    The rules of a free state are:

    I. where the legislative adheres strictly to the laws of nature, and calculates every one of its regulations for improving society, and promoting industry and honesty among the people, [Mason, J. (1979). Anglo-American Anti-military Tracts 1697-1830. (R. H. Kohn, Ed.) New York: Arno Press. Page 144. Note †, Taken from, ORATION DELIVERED AT BOSTON, MARCH 6, 1780 By Mr. Jonathan Mason, Jun. pages 129-145. See also Henry Home, L. K. (2007). Sketches of the History of Man (Vol. II). (J. A. Harris, Ed.) Indianapolis: The Liberty Fund Inc. Page 378. See also Adams J. (the other) (1995/1789) Curious Thoughts on the History of Man Cheifly abridged from the Celebrated Works of Lord Kames, Lord MonBoddo, Dr. Dunbar and the Immortal Montestquieu Bristol/London: Thoemmes Press/G.Kearsley. Page 203-204; See Samuel Adams letter to The Honorable Henry Seymour Conway in Wells, W. V. (1865-1969). The Life and Public Services of Samuel Adams (Vol. I). Freeport: Books for Libraries Press. Page 159; Sam Adams letter to Lord Camden in Wells, W. V. (1865-1969). The Life and Public Services of Samuel Adams (Vol. I). Freeport: Books for Libraries Press. Page 160; Samuel Adams, Natural Rights of the Colonists as Men, in Wells, W. V. (1865-1969). The Life and Public Services of Samuel Adams (Vol. I). Freeport: Books for Libraries Press. Pgs 502 and 506.] 

    (So when I say Loretta claims "urgent necessity" is legislative intent it can't be as it interferes with the first law of nature viz., self preservation and therefore we can't actually be in a free state if the legislature created as rule that interferes with the first law of nature.)

    II. where the sovereign or supreme power resides in the people; where the law of nations is the law of the people … who are under the most sacred obligations to exercise that power, or to delegate it to such as will exercise it, in a manner agreeable to those rules and maxims, [Wilson Works supra Vol. I). Page 153-154.]

    III. where there is equal participation of every citizen in government, [Needham, M. (1767). The Excellencie of a Free State. London: A. Millar, T. Cadell in the Strand; G. Kearsly in ludgate Street, and H. parker in Cornhill. Page 112. Adams, J. A Defence supra Vol. III., Page 287, 310, 313, 334, 345, 349, 361. Adams J. (the other) Curious Thoughts supra Page 27, 112, “All men are, by nature, equal in rank.” Aristotle. (1776). A Treatise on Government. supra Page 184, 188, 194. See also pages 19 & 38, (“Now in the generality of free States, the Governors, and the Governed, alternately change place ; for an equality without any Preference is what Nature chuses;”); page 48, ((“so also in Civil Society, where -it is possible, it would be better that the Government should continue in the same hands; but where it is not (as Nature has made all men equal, and therefore it is just, be the admmiftration good or bad, that all should partake of it) there it is best to observe a Rotation, and let thofe who are their equals, by turns submit to thofe who are at that time Magiftrates, as they will, in their turns, alternately be governors and governed, as if they were different Men : by the same Method different Persons will execute different Offices.”))]

    (So if the government claims only police officers defend the public and enforce the laws and therefore only police officers can carry handguns in public, then there is not equal participation in government.)

    IV. where everyone enjoys that equality he has a Right to, and fully possesses what is his own. [Aristotle. A Treatise supra pgs. 184, 188, 194]

    V. Where the law is supreme over all things. [Aristotle. A Treatise supra pgs. 184, 188, 194]

    VI. Where the Constitution is fixed; it is from thence that the legislative derives its authority; therefore it cannot change the Constitution without destroying its own foundation. [Samuel Adams letter to the Earl of Shelburne; Samuel Adams to the Marquis of Rockingham, in Wells, W. V. (1865-1969). The Life and Public Services of Samuel Adams (Vol. I). Freeport: Books for Libraries Press. Pgs. 158 & 159.]

    VII. Where the legislative has no right to absolute, arbitrary power over the lives and fortunes of the people. [Samuel Adams, The Rights of Colonists as Subjects in The Life and Public Services of Samuel Adams supra Vol. I Page 505-506.]

    VIII. Where Citizens have the right of judging when their privileges are invaded, and of using all prudent measures for preserving them. [Dickinson, J. (1903). Letters From a FARMER in Pennsylvania. (R. Halsey, Ed.) New York: The Outlook Company. Letter VI., Page 66.]

    IX. Contains the principle of free and equal elections. [Wilson, J. Works supra Page 123.

    X. Where taxes are exactly proportioned to the abilities of those who are to pay them. [Dickinson, J. Letters From a FARMER supra Letter X., Page 112.]

    XI. A perpetual jealousy respecting liberty is absolutely requisite in all free states. [Dickinson, J. (1903). Letters From a FARMER supra letter XI. Page 117.]

    XII. and where perfect equality [in law] is the end. [Adams, J. A Defence supra Vol. II Page 6. NB: Adams did not write in law, however, Adams did not mean all men were equal in knowledge, wealth or property for he never wrote such a thing. What Adams means here is that all men are equal in their liberty and thus their ability to pursue knowledge, wealth and property. See also, Adams J. (the other) Curious Thoughts supra Page 231.]

    Upon processing The Rules of a Free State, the Second Amendment takes on a meaning so far above and beyond a collective militia right or an exclusively in the home right that every single argument made by the opponents of the individual right, based on 

    • State’s rights, 
    • the National Guard, 
    • the police power, 
    • the “we as a people are too advanced for guns,” theories or, 
    • STEVENS’ dissent in Heller that “there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution”, 

    completely fall apart.

    Consequently the inclusion of the free state rules crush any argument Justices STEVENS and BREYER had in Heller [BREYER J dissenting Heller post at 14, 15, 16, 17, 18, 19 & 23] or JUSTICE JACOBS may have had in Burton or Siccardi with regard to: 

    • crime statistics, 
    • the “interpretation of the legislators,” or 
    • the “awareness of the dangers inherent in the carrying of handguns and the urgent necessity for their regulation” (which came from the Police Chief testimony in Siccardi,)

    as reasoning for any judiciary to circumvent the right to bear arms by only allowing the bearing of arms to take place in the home. (NB Samuel Adams in free state rule #1 and #7 supra.)

    On November 20th, 1772, Sam Adams would write The Report of the Committee of Correspondence to the Boston Town Meeting to assert the Rights of the Colonists as Men and it would soon afterwards be published by Ben Franklin. In the first and fourth paragraphs respectively, Sam Adams would write:

    Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. Those are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature… [Cushing, H. A. (Ed.). (1907). The Writings of Samuel Adams (Vol. III). New York: G.P. Putnam's Sons. Pgs. 350-369.]

    Every natural right not expressly given up, or, from the nature of a social compact, necessarily ceded, remains. [Cushing supra pg. 352.]

    Sam Adams points out that life, liberty and property, go hand in hand with “the right to support and defend them in the best manner they can.” And that this right to support and defend life liberty and property is a branch of “the duty of self-preservation, commonly called the first law of nature.”

    And if the first rule of a free state is “where the legislative adheres strictly to the laws of nature,” JUSTICE STEVENS was completely wrong that there is “no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.” If the founders did not want to enshrine the common law right of self defense in the Constitution, they would not have used the terminology free state in the Second Amendment. [See Marbury v. Madison, 5 US 137 - Supreme Court 1803 at 174 (It cannot be presumed that any clause in the constitution is intended to be without effect.)]

    Carrying a handgun with a 2C:58-4 permit in New Jersey is not about killing. It is about not dying which would be, as per Blackstone, "defending the laws." And here Sam Adams’ “right to support and defend life in the best manner,” can only be read as the right to defend those laws viz., preserve life, with arms. 

    We must note here that the Heller Court pointed out that:

    St. George Tucker’s version of Blackstone’s Commentaries … conceived of the Blackstonian arms right as necessary for self-defense. He equated that right, absent the religious and class-based restrictions, with the Second Amendment. See 2 Tucker’s Blackstone 143. In Note D, entitled, “View of the Constitution of the United States,” Tucker elaborated on the Second Amendment: “This may be considered as the true palladium of liberty … The right to self-defence is the first law of nature: in most governments it has been the study of rulers to confine the right within the narrowest limits possible. [Heller at 2805. First ellipsis by Factor, second in original by JUSTICE SCALIA]

    The Heller Court equated Sam Adams' "first law of nature" to both Tucker and Blackstone’s (t)he right to self-defence is the first law of nature, which then conceived the right to arms as necessary for that defense.

    As the New Jersey Courts are trying to limit the right to bear arms to an “in the home reading” or at the very least determining the right on a case-by-case basis using the Siccardi Rule's “urgent necessity” definition, [See In re Preis, 573 A. 2d 148 - NJ: Supreme Court 1990 at 571 (Under the Siccardi rule there must be "an urgent necessity for self-protection." The requirement is of specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means.) In re Application of Borinsky, 830 A. 2d 507 - NJ: App. Div. 2003 at 516. (holding that "justifiable need" must be evaluated on a case-by-case basis on a determination…") Citing Preis supra. at 573.] we must understand that JUSTICE SCALIA pointed out via Tucker thru Blackstone that “in most governments it has been the study of rulers to confine the right within the narrowest limits possible.” Certainly, New Jersey’s “in the home” approach limiting 2C:58-4 Permits is the narrowest limit possible and does not take into consideration The Rules of Free State.

    So now that we "know things well because we know them in their beginnings" as per Sir William Temple, and are "fully instructed" to "know these maxims," i.e. the rules of a free state, from this point forward when an anti-Second Amendment person asks us why we need a handgun? Why we need an AR15? Why we need a 2C:58-4 Permit to Carry a Handgun in Public &c. &c., the answer, in one sentence is:


    And this is how we preserve our free state and Right to Bear Arms "against the adulterous wiles and rapes of any projecting sophisters." 

  • March 12, 2018 4:32 PM | Anonymous member

    There were three complaints in Heller, one of which dealt exclusively with carrying handguns in Public. 

    An investigatory reading of Heller reveals the ruling in Heller was not “in the home” or outside the home viz., in public. True enough, SCOTUS held that "the District's ban on handgun possession in the home” (and the District’s) “prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense … violates the Second Amendment” [Heller at 2821-2822. Inside the parenthesis and emphasis by Factor.]

    However, the actual ruling in Heller also contained the phrasing that:

    (a)ssuming (Dick Anthony) Heller was “not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home. [Heller at 2822. Inside the parenthesis and emphasis by Factor.]

    The lower Courts fail to recognize that SCOTUS recognized the carrying of handguns in public 94 years before Heller [See Patsone v. Pennsylvania, 232 US 138 - Supreme Court 1914. Second to last sentence at 143 (The prohibition does not extend to ((t)he possession of) weapons such as pistols that may be supposed to be needed occasionally for self-defence.)] and focus on the last three words “in the home.”

    The lower Courts start with an incomplete reading of the Heller decision nearsightedly holding only that,

    the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense. [US v. Skoien, 614 F. 3d 638 - Court of Appeals, 7th Circuit 2010. SYKES, Circuit Judge Sykes, dissenting at 647.]

    In Factor A-5202-08T4 (App. Div.), Judges Lihotz and Ashrafi myopically held that:

    (t)he Court in Heller did not "undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment[.]" It was reviewing the constitutionality of a District of Columbia law banning possession of firearms in the home.” [At 9.]

    But the phrase “banning possession of firearms in the home is only 33% true.

    The Federal District Court also clung to an “in the home” reading of Heller erroneously holding that the Heller Court (only),

    explicitly recognized … that the Second Amendment confers an individual right to keep and bear arms,” but that “(t)he Court held that a District of Columbia law which forbade the individual possession of useable handguns in the home violated the Second Amendment.” [Piszczatoski v. Filko, 840 F. Supp. 2d 813 - Dist. Court, D. New Jersey 2012 at 819. Emphasis by Factor.]


    held that a total ban on handgun possession in the home is unconstitutional under “any of the standards of scrutiny that we have applied to enumerated constitutional rights…” [Piszczatoski at 819. Emphasis by Factor.]

    The Piszczatoski Court myopically used the term “in the home” thirty five times.  Myopically is not used disparagingly here but scholarly. Piszczatoski also claimed that,

    the historical sources cited by Heller do not establish that the individual right necessarily extended to a broad general right to carry for self-defense. At most, they suggest that there may be a limited right to carry a handgun outside the home for certain purposes in certain situations that should be explored and determined on a case-by-case basis. [At 827]

    This, like “in the home” will be proven to be impossible viz., completely false, in the next section of this Application. But nevertheless, the last two paragraphs of Heller 2792 which make up all but one sentence of the page, were devoted to the phrase “keep arms.” Pages 2793, 2794, 2795, 2796 and three quarters of page 2797; four and three quarter pages in total, were devoted to the term “bear arms.”

    Although Heller fully explained the difference between ‘the phrases "keep arms" and “bear arms stating that:

    ‘we think … "bear arms" means … simply the carrying of arms.’ [Heller at 2796. (Arraignment of the sentence’s clauses adjusted by Applicant for ease of reading and does not disturb the meaning.)]

    This wasn’t dicta, this is how Heller arrived at its individual rights decision. [See Heller at 2796 (But if "bear arms" means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add "for the purpose of killing game." The right "to carry arms in the militia for the purpose of killing game" is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that "to bear arms" is not limited to military use.)]

    Even if the argument is made that 2796’s “(i)f "bear arms" means, as we think, simply the carrying of arms” is dicta, the Courts,

    should not idly ignore considered statements the Supreme Court makes in dicta. The Supreme Court uses dicta to help control and influence the many issues it cannot decide because of its limited docket. "Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court's marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there." [Official Committee ex rel. Cybergenics v. Chinery, 330 F. 3d 548 - Court of Appeals, 3rd Circuit at 561 citing In re McDonald, 205 F.3d 606, 612-13 (3d Cir.2000) (brackets in original) (quoting United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998)). ]

    Piszczatoski simply ignored Heller’s five and three-quarter page explanation from 2792 to 2797 of the difference between to keep and to bear, as well as Heller’s culmination of:

    (p)utting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.

    As if the Court never actually reads Heller, the  Piszczatoski  Court went on to boldly proclaim that,

    the specific question before the Supreme Court was whether the District of Columbia's prohibition of keeping useable handguns in the home violated the Second Amendment, Heller clearly held that the Second Amendment protects at its core an individual right to possess and use a handgun for self-defense within the home. [Piszczatoski at 820. Emphasis by Applicant.]

    Piszczatoski’s blinders are most revealing within the Court’s citations:

    (t)he court wrote "it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. [Piszczatoski at 825 citing Williams v. State, 417 Md. 479, 10 A.3d 1167, 1177-78 (2011), cert. denied, Williams v. Maryland, ___ U.S. ___, 132 S.Ct. 93, 181 L.Ed.2d 22 (2011). Emphasis by Applicant.]

    But these “in the home” claim(s) are the “incomplete reading” of Heller that Circuit Judge Sykes’s dissent in Skoien spoke of. [See US v. Skoien, 614 F. 3d 638 - Court of Appeals, 7th Circuit 2010, at 647 (My colleagues start with an incomplete reading of the Supreme Court's opinion in Heller. They say the Court held only that "the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense.)]

    Judge Sykes was correct. There were six separate DC Codes that Heller specified on 2788.

                I.          7-2501.01(12), [at 2788]

              II.          7-2502.01(a),   [at 2788; post at 2854]

            III.          7-2502.02(a)(4) [at 2788; post at 2854]

           IV.          22-4504(a),      [at 2788]

             V.          22-4506,           [at 2788; post at 2853]

           VI.          7-2507.02.        [at 2788 & 2818, post at 2853 & 2862]

    Of these six Codes, there were three separate complaints in Heller.

    The present suit involves challenges to three separate District firearm restrictions. [Heller post at 2853.Justice Breyer dissenting.]

    The first complaint regarded the prohibition of handguns via the inability to legally register them and the fact that it is a crime to carry of handguns in public.

    The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. See D.C. Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001). [Heller at 2788]

    The second complaint regarded the carrying of handguns in public; the equivalent of NJSA 2C:58-4 which is the New Jersey statue concerned in this case:

    (w)holly apart from that prohibition, no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. See §§ 22-4504(a), 22-4506. [Heller at 2788; See Heller post at 2853. Justice Breyer dissenting. (The first challenge is to the District firearm restriction which requires a license from the District's Chief of Police in order to carry a "pistol," i.e., a handgun, anywhere in the District.) Emphasis by Factor]

    The only difference between the DC law and NJ law is that New Jersey ‘has constructed a "careful grid" of possessory and purposive offenses requiring that close attention be paid to the specifics of each offense.’ [State v. Ingram, 488 A. 2d 545 - NJ: Supreme Court 1985 at 495] and does not consider the home as a zone of unlawful carry. [See State v. Harmon, 516 A. 2d 1047 - NJ: Supreme Court 1986 at 198-199 (A homeowner who possesses a gun in his home (presumably as a precaution against crime) does not violate N.J.S.A. 2C:39-5 because under N.J.S.A. 2C:39-6(e), he is not carrying it.)] Whereas DC first requires a license from the District's Chief of Police in order to carry a "pistol," i.e., a handgun, anywhere in the District. [See Heller post at 2853. Justice Breyer dissenting. Citing D.C. Code § 22-4504(a) (2001); see also §§ 22-4501(a), 22-4506.]

    To avoid “incomplete reading(s)” of Heller, it is important to notice the Heller Court’s use of the phrase “(w)holly apart from that prohibition.” Clearly the registration of pistols [See Heller at 2788 (citing DC Code §§ 7-2501.01(12), 7-2502.01(a), 7-2502.02(a)(4) (2001).)] and the carrying of pistols in public [See Heller at 2788 (citing §§ 22-4504(a), 22-4506.) were two separate facets of regulation.

    Perhaps better said in a Second Amendment context, the first complaint regarded the keeping of arms (in that they could not be registered) while the second complaint regarded the bearing of arms in public (in that no one was issued a permit to carry “anywhere in the District” unless the chief of police issued a license.) [See Heller at 2788, the 4th, 5th and 6th sentence of § 1.]

    The third complaint was not a registration or a carry complaint but a possession (intact) complaint and read:

    District of Columbia law also requires residents to keep their lawfully owned firearms, such as registered long guns, "unloaded and dissembled or bound by a trigger lock or similar device" unless they are located in a place of business or are being used for lawful recreational activities. See § 7-2507.02. [Heller at 2788 .Emphasis by Factor.]

    So when Heller ruled at 2822 that “the District must permit him to register his handgun and must issue him a license to carry it in the home,” this ruling addressed two separate complaints from completely separate DC Codes. These separate codes are similar to NJ’s 2C:58-3 Permit to Purchase a Handgun and 2C:58-4’s Permit to Carry a Handgun.

    The permit to carry that SCOTUS told DC to issue Dick Anthony Heller was not a permit to carry it only in the home because on June 26th 2008,DC did not have that type of carry permit nor the equivalent of NJ’s  2C:39-6(e) exemption. [See n.8 supra and n.9 supra.] Thus a full reading of Heller reveals the permit SCOTUS told DC it must issue was a permit:

    to carry a "pistol," i.e., a handgun, anywhere in the District. [Heller post at 2853. Justice Breyer dissenting. Citing DC Code § 22-4504(a) (2001); see also §§ 22-4501(a), 22-4506.]

    The carry permit “anywhere in the District” was the permit that DC conceded Dick Anthony Heller was going to get. [See Heller post at 2853 Justice Breyer dissenting (the first challenge requires a license from the District's Chief of Police in order to carry a "pistol," i.e., a handgun, anywhere in the District citing DC Code § 22-4504(a) (2001) and 22-4506.); See Heller at 2788 (no person may carry a handgun without a license, but the chief of police may issue licenses for 1-year periods. Citing §§ 22-4504(a), 22-4506.) (The public handgun carry licensing Codes are the same in both the decision and the Breyer dissent.)] Specifically addressing this type of carry permit, there were statements before the Court made by DC that identified,

    if the handgun ban is struck down and respondent registers a handgun, he could obtain a license, assuming he is not otherwise disqualified, [Heller at 2819 citing Brief for Petitioners 58.] 

    SCOTUS then noted DC’s meaning of “otherwise disqualified” stating,

    by which they apparently mean if he is not a felon and is not insane. [Heller at 2819 citing Brief for Petitioners 58.] 

    Dick Anthony Heller conceded at oral argument that he did not,

    "have a problem with ... licensing" and that the District's law is permissible so long as it is "not enforced in an arbitrary and capricious manner." [Heller at 2819 citing Tr. of Oral Arg. 74-75.]

    Heller did not see the need to address the carry permit in the decison because DC conceded Heller could get one. 

    The present suit involves challenges to three separate District firearm restrictions. The first requires a license from the District's chief of police in order to carry a "pistol," i.e., a handgun, anywhere in the District. See D.C.Code § 22-4504(a) (2001); see also §§ 22-4501(a), 22-4506. Because the District assures us that respondent could obtain such a license so long as he meets the statutory eligibility criteria, and because respondent concedes that those criteria are facially constitutional, I, like the majority, see no need to address the constitutionality of the licensing requirement. See ante, at 2818 - 2819. [Heller post at 2853.]

    So while the Heller Court did not see the need to address the carry permit in its analysis, the Court assumed that DC’s issuance of a license would satisfy Dick Anthony Heller’s prayer for relief and included the §§ 22-4504(a) and 22-4506 carry permit (“anywhere in the District”) in the Court’s actual ruling. [See Heller at 2822 (the District must permit him to register his handgun and must issue him a license to carry it in the home.) Emphasis by Applicant.] 

    Consequently a lawyerly reading of the Heller decision cannot focus on the last clause of the decisionary sentence alone viz., “in the home.”  Page 2822’s “license to carry it” was DC’s license to “carry it” “anywhere in the District” viz., in public. Thus one third of the Heller holdings actually concerned a carry permit in public which is the equivalent of NJSA 2C:58-4.


  • March 05, 2018 4:29 PM | Anonymous member

    Although Heller was decided in 2008, and McDonald applied the Second Amendment to the States in 2010, New Jersey still reads the right to bear arms as it re-interpreted the Second Amendment in 1968.

    The common law did not recognize any absolute right to keep and bear arms. [Burton v. Sills, 248 A. 2d 521 - NJ: Supreme Court 1968 at 96 citing the Statute of Northampton, 2 Edw. III, c. 3 (1328).]

    As a direct result of Burton, the State became emboldened and “furthered” the State Police Investigation Unit's Rule in 1971 with a “strict policy” of Assignment Judges [See Siccardi at 557.] that required when “determining when a 2C:58-4 permit to carry should be issued to a private citizen” the Court must follow “the core substantive standard of Siccardi.

    Under the Siccardi rule there must be "an urgent necessity for self-protection." The requirement is of specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means. Generalized fears for personal safety are inadequate, and a need to protect property alone does not suffice. [In re Preis, 573 A. 2d 148 - NJ: Supreme Court 1990 citing Siccardi v. State, 284 A. 2d 533 - NJ: Supreme Court 1971 at 557-558.]

    And while Burton held that, 

    New Jersey's Gun Control Law is highly purposed and conscientiously designed toward preventing criminal and other unfit elements from acquiring firearms while enabling the fit elements of society to obtain them with minimal burdens and inconveniences, [Burton at 105.] 

    since 1971, virtually no “fit element of society” viz., a 2C:58-3 FID Card holder, is granted a 2C:58-4 Permit to Carry a Handgun.

    In 1766, The Presbyterian College of New Jersey, known today as Princeton University, sent Richard Stockton to the town of Paisley, Scotland to persuade to the Reverend John Witherspoon to accept the appointment as President of the College. The female branches of Witherspoon’s family had been reluctant to immigrate to America, however, and Richard Stockton had to call on all of his powers of persuasion to promote the interests of the College and reverse Witherspoon’s objections. [Sanderson, J., & Waln Jr., R. (1823). Biography of the Signers of the Declaration of Independence. Eastern District of Pennsylvania: R.W. Pomeroy. Page 78.]

    During Stockton’s tour of the United Kingdom, while residing in Great Britain, Stockton was attacked one night in the city of Edinburgh by a desperate robber. The physical confrontation with the robber was not only severe, but a matter of life and death. Stockton, however, skillfully defended himself with a small sword in his possession, and emerged from the engagement successful after repelling the attack by wounding to robber and forcing his retreat. As the story goes, the sword is still in the possession of the Stockton family. [Sanderson pg. 79.]

    At this point we have to look at Stockton’s small sword as a concealed weapon, for if it weren’t concealed the attacker most likely would not have attacked, and we need to ask ourselves:

    • 1.    Did Stockton have “specific threats” about the desperate robber?
    • 2.    Had Stockton survived “previous attacks” from the desperate robber?
    • 3.    Did Stockton have permit to carry a concealed weapon?
    • 4.    Or was Stockton carrying the concealed sword over “generalized fears for his personal safety"?

    Stockton, by preserving his own life, would end up signing the Declaration as a Representative of New Jersey. Witherspoon would also become a signer the Declaration of Independence as a representative of New Jersey.

    But there is more to consider about Stockton’s persuasion to get Witherspoon to accept the Princeton position. Witherspoon’s:

    students included, in addition to a president and vice-president of the United States, nine cabinet officers, twenty-one senators, thirty-nine congressmen, three justices of the Supreme Court, and twelve state governors. Five of the nine Princeton graduates among the fifty-five members of the Constitutional Convention of 1787 were students of Witherspoon. [] 

    James Madison himself attended the College of New Jersey and studied under and was heavily influenced by John Witherspoon. So we have to wonder where we would be right now, if Stockton wasn’t carrying his concealed sword, and was killed by the robber, and Witherspoon never came back to Princeton with him?

    In a September 7th, 1774 letter from Lord Dartmouth to Royal Governor William Franklin, Dunmore expressed the King’s anxiety concerning the Continental Congress in Philadelphia,

    I must not omit this Opportunity of expressing to you how great Concern it has given the King to find that His Subjects in the different Colonies in North America have been induced, upon the grounds stated in their different Resolutions, to nominate Deputies to meet in general Congress at Philadelphia. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 496-497.]

    A few weeks earlier, in August 1774, John Witherspoon had written in Thoughts on American Liberty,

    That it be recommended to the legislature of every colony, to put their militia upon her best footing; and to all Americans to provide themselves with arms, in case of war with the Indians, French or Roman Catholics, or in case they should be reduced to the hard necessity of defending themselves from murder and assassination. [Larry R. Gerlach New Jersey in the American Revolution 1763-1783 A Documentary History. New Jersey Historical Commission, Trenton. NJ 1975 Citing here John Witherspoon, The Works of John Witherspoon (9vols., Edinburgh, 1804), 9:73-77.]

    While Witherspoon was not writing an exact Second Amendment analogue, Witherspoon makes several important revelations about the militia of the Second Amendment in New Jersey “at the time of the founding”. [See Heller at 2802 (Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.)]

    “Upon her best footing” must be synonymous with well regulated. [See Heller at 2800 (the adjective "well-regulated" implies nothing more than the imposition of proper discipline and training.)]

    And for the militia to be “upon her best footing”, all citizens must “provide themselves with arms.” This would be hard to do if New Jersey banned them all or did not let New Jersey citizens carry their arms outside the home with a 2C:58-4 Permit to Carry.

    And indeed, the Colony of New Jersey once tried to do that. The same year Witherspoon wrote Thoughts on American Liberty, the Royal Governor of New Jersey, William Franklin was a recipient of an October 19th, 1774 circular letter from the Earl of Dartmouth to all the Governors in America, relative to arresting and securing any gunpowder, arms or ammunition which might be imported from England to the Colonies without license.

    His Majesty having thought fit, by His Order in Council this Day, to prohibit the Exportation from Great Britain of Gunpowder, or any sort of Arms or Ammunition. I herewith inclose to you a Copy of the Order, and it is His Majesty’s Command that you take the most effectual measures for arresting, detaining and securing any Gunpowder, or any sort of arms or ammunition, which may be attempted to be imported into the Province under your Government, unless the Master of the Ship having such Military Stores on Board shall produce a License from His Majesty, or the Privy Council, for the exportation of the same from some of the Ports of this Kingdom. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 497-498.]

    Imagine that, the Governor of New Jersey took measures to stop gun powder, arms and ammunition from coming into New Jersey without a license from the King or the Privy Council because the King believed the Continental Congress to be of doubtful Propriety & Legality and viewed the delegates to be, for lack of a better word, insurgents.

    The New Jersey delegates were Stephen Crane, John De Hart, James Kinsey, William Livingston, and Richard Smith. De Hart sat on the New Jersey Supreme Court for a brief time, Kinsey would become the Chief Justice of New Jersey's Supreme Court and Livingston would replace William Franklin as Governor and yet the King outlawed gun powder, arms and ammunition because these talented men met in public. Sound familiar? 

    Look at today's proposals.

    1. No magazines over 10 rounds without a license from Murphy or Loretta!

    2. No 2C:58-4 Permit without a license from a License from His Majesty, or the Privy Council ... I mean the the County Judge and the Chief. 

    Nevertheless, while the Colonial government was attempting to ban gun powder, arms and ammunition in New Jersey, Witherspoon was simultaneously telling the citizens to “provide themselves with arms.” And quite discreetly, Witherspoon said the arms were “in case of war with the Indians, French or Roman Catholics, or in case they should be reduced to the hard necessity of defending themselves from murder and assassination. [Emphasis by Factor.] Both were apparently legal “at the time of founding.”

    Compare Witherspoon’s “in case of” terminology with the Siccardi Rule where there must be: 

    a special danger to the applicant's life … as evidenced by serious threats or earlier attacks.” [Preis at 566.] 

    New Jersey contends that: 

    the "justifiable need" component of the carry permit law accommodates,  on a case-by-case basis, those who have a reason--one based on more than a generalized concern about the prevalence of crime—to anticipate a violent attack in a public place warranting lawful defensive use of a handgun. [In re Wheeler, 81 A. 3d 728 - NJ: Appellate Div. 2013 at 739.] 

    There is that nail in the State's coffin "on a case-by-case" basis again!!!

    Anticipate an attack? There is no way Richard Stockton anticipated the attack in Scotland. Clearly Stockton was carrying his concealed sword on a generalized fear of Crime. And although Stockton was carrying the sword in violation of the Siccardi Rule, that is to say for a “generalized fear for personal safety,” we might all be British if he didn't!   

    Moreover, Witherspoon wrote Thoughts on American Liberty over a month before Dunmore’s Circular Letter. Worse for the State, when determining if NJAC 13:54-2.4d1 is constitutional, under the Siccardi Rule

    • Indians or the French, would have had to attack Witherspoon’s citizens first.
    •  Witherspoon’s citizens would then have had to survive the attack (or attacks as the Siccardi Rule reads plural) 
    • and only then could Witherspoon’s citizens arm themselves.

    In Thoughts on American Liberty, Witherspoon’s citizens armed in case the Indians or the French attacked viz., in preparation for a possible attack. These are two diametrically opposed views of the militia.

    And Witherspoon’s citizens weren’t just arming “themselves” to “suppress Insurrections or repel Invasions” as in Article 1 Section 8 clause 15. Witherspoon’s citizens were arming “in case they should be defending themselves from murder and assassination.”

    So in New Jersey, in 1774, citizens could arms themselves and carry weapons in public before any attack took place and for their own “generalized fears for personal safety.”

    Even Royal Governor William Franklin knew the colonies were always permitted to obtain arms and drill militia for their own defense as a letter from Lord Hillsborough to Franklin dated May, 4th, 1771 points out.

    His Majesty has no Doubt of your attention to the Security of the of the Colony under your Govt, & of the Disposition of His Faithful Subjects in New Jersey to concur with you in every Measure that would have been necessary for putting it into a State of Defence, in case the Issue of the Dispute with Spain had been contrary to his Majesty’s Expectation. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 274.]

    William Franklin concurred with Witherspoon in that the citizens are only secure when “every measure” in the state of defense is taken in case of an attack.

    In the historical blink of an eye, a mere 1222 days before Dartmouth’s Circular Letter, every measure for the State of Defence was concurred with. And Franklin was so aware of that the people of New Jersey were allowed to have arms in public, to protect themselves in case of a problem, that in a speech to the New Jersey Council and Assembly April 18th, 1771, only sixteen days previous to the State of Defence letter, Franklin spoke with an eerie foreshadowing,

    During the late Prospect of a War, the defenceless State of this Province must no doubt have occurred to you, and to the People in general. His Majesty’s uniform Wishes to preserve the public Tranquility may not always be successful. A Time of Peace, however, is certainly the best Time to prepare for War*, and there is no knowing how soon an Event may happen. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 239-240.]

    The * note in Archives of NJ on page 274 reads,

    The reverend Aaron Burr, in “A discourse delivered in New-Ark, in New Jersey, January 1, 1755,” uses this expression (speaking of the threatened French War): “The way to have peace in the Present case, is to make a speedy and vigorous Preparation for War.”

    In a speech to Congress, January 8, 1790, Washington put the same idea thus:

    To be prepared for war is one of the most effectual means of preserving the peace.

    The Latin proverb is, “Si vis pacem, para bellum.” New Jersey’s own delegate to the Constitutional Convention Jonathan Dayton would say the same thing on Saturday, August 18th 1787

    “Preparations for war are generally made in time of peace;” [Elliot's Debates, Vol. 5, pg. 443.]

    Aaron Burr, George Washington, Jonathan Dayton all wrote the same analogue as William Paterson in his 1793 Essay on a Well Regulated Militia,

    To be prepared for war is the way to prevent it; to be ready in arms to meet and resist tyranny never fails to deter it approach. Tyrants dred freemen, when freemen not only have arms in their hands, but know how to use them. [See Blog 1]

    Considering their place in History “at the time of the founding”, all of these writers make the Siccardi Rule's "specific threats or previous attacks demonstrating a special danger to the applicant's life" look highly unconstitutional. And Heller was all about how the Second Amendment was viewed “at the time of founding.”

    In interpreting this text, we are guided by the principle that "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L.Ed. 23 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation. [Heller at 2788.]

    Keeping in mind that Governor Franklin was speaking in 1771, “at the time of the founding”, one important feature of Franklin’s speech is that the head of the provincial New Jersey government admitted that the government may not always be able to protect the people. William Franklin’s words ring as clear today as New Jersey has likewise admitted that it too cannot always preserve the public tranquility,” if we consider New Jersey’s Tort Reform Act because, 

    “the police are immune from liability for their failure to provide protection and failure to arrest or detain dangerous criminals. Instead the law recognizes that is each individual’s responsibility to effectively provide for their safety outside their homes, where the vast majority of violent crimes occur.” [See John C. Lenzen Liberizing the Concealed Carry of Handguns by Qualified Civilians: The Case for “Carry Reform Rutgers Law Review (Rutgers-Newark) Note, 47 (1995): 1503.]

    If we look at Franklin’s last line of this paragraph we will see that “preparation” is a common thought of the founding generation. William Franklin’s speech continued,

    This is therefore a Matter worthy of your particular attention. For my part, I know nothing we have to rely on, under God, for our Protection against the sudden Attempts of an Enemy, but the Regiment of Regulars which his Majesty has been so kind to afford us, and the Militia. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 240.]

    Did the royal governor say we can only rely on government regulars or government regulars and the militia? Between Witherspoon and Franklin, it is clearly evident that there was a right of citizens to bear arms in defense of the Colony and themselves “in case they should be reduced to defending themselves from murder and assassination.”

    But the New Jersey Supreme Court maintained in 1971 that “(t)he common law did not recognize any absolute right to keep and bear arms.” [Burton v. Sills, 248 A. 2d 521 - NJ: Supreme Court 1968 at 96 citing Statute of Northampton, 2 Edw. III, c. 3 (1328)]

    By placing reliance on the Statute of Northampton, the Burton Court was worse than wrong in claiming that there was no right to bear arms in public in New Jersey. William Paterson re-codified that Laws of New Jersey after the Laws of Allinson. Bouvier v. Baltimore & N. Y. R. Co., is a 1902 case from the New Jersey Court of Errors and Appeals, and while the case is about the transfer of a right of entry, it proves that the Statute of Northampton is bad law in New Jersey. The Court said:

    … it was rightly hold in the supreme court that the English law against maintenance, is not in force in New Jersey. The opinion of Chief Justice Beasley in that case makes this very clear. He says: "By the act of November 24, 1792-(Pamph. L. 794), Judge Paterson was authorized to collect and put in form all the statutes of England and of this state which then remained in force here, and Mr. Griffith, in referring to the revision that was the result of this authority, says that the compiler ' omitted, as inapplicable, the English statutes relative to the buying and selling of titles (1 Rich. II. chap. 9; 32 Hen. VIII. chap. 9), as he did also those against maintenance. I Edw. III. chap.14; 20 Eliz. chap. 4, etc. Also of Champerty, 3 Edw. I. chap. 25; 28 Edw. I. chap. 11.' The question then arises, What was the meaning of this omission? I can perceive no other solution except the inference that Judge Paterson considered them neither a part of the statute law of this state nor as adapted to our circumstances. By the Constitution of 1776 it was declared, in article 22, ' that the common law of England, as well as so much of the statute law as have been heretofore practised in this colony, shall still remain in force, until they shall be altered by a future law of the legislature;' and when, therefore, this particular series of acts was not comprised in this accurate and authentic compilation of the laws in force, it seems manifest that such leaving out was a meditated exclusion. If it be said that such a rejection of the statute law did not affect the common law, and that by the common law maintenance was prohibited, my answer is that, since the publication of the body of selected laws just referred to, there is no trace of the prevalence of any part of such a doctrine, either in our practice, judicial dicta, or decisions. It is obvious that Mr. Griffith inferred that the entire doctrine of maintenance and champerty was thought by Judge Paterson to be 'inapplicable' to the polity of this state. And, although in some of the older legal digests and commentaries the doctrine of maintenance is said to be a part of the common law, nevertheless I am strongly of the opinion that it would be altogether impracticable to ascertain of what rules such doctrine consisted, as embodied in that ancient system.'' He then goes on, most eruditely, to show that there is the best, reason for believing that, although often spoken of as appears above by the old writers as part of the common law maintenance is entirely the creature of English statutory law, and of the judicial construction of such law, and that the consequence is that when this set of acts was designedly left out of our statute book there existed no rational ground for the contention that any part of the law of maintenance in any form remained in force in this state. [67 N.J.L. 281, 51 Atl. 781 (1902).]

    While Bouvier v. Baltimore held that that the English law against maintenance, is not in force in New Jersey, in essence, for our purposes, the Court ruled that when Paterson revised the statutes of New Jersey, the omission of an English statute, was evidence that the English Common Law pertaining to such statute became inapplicable to the polity of this state. 

    As Paterson’s Laws makes maintenance inapplicable so it does to make the Statute of Northampton inapplicable and  the view of the Bouvier v. Baltimore Court certainly holds merit, for in Paterson’s Laws, the only people forbidden to carry firearms in public were slaves, and that was only on Sundays. [See Paterson’s Laws, page 308. An ACT respecting slaves. Passed the 14th of March, 1798. “IX. And be it Enacted, That if any negro or other slave shall be seen…to hunt or carry a gun on the First day of the week, or Christian Sabbath, commonly called Sunday, any constable or person…is hereby authorized…to apprehend …such negro or slave…”]

    The way the Courts read a law is if the law specified only Negros and slaves, and only on Sunday, the law recognized that everyone else could carry a gun seven days a week. 

    Lest anyone think the term a well-regulated militia was invented by the Madison in the Second Amendment or even by George Mason in the Virginia Declaration of Rights in 1776.

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power. [13th clause.]

    William Franklin was the Governor of New Jersey at time of Allinson’s Laws, the predecessor to Paterson's Laws and the laws that are to remain in full force unless incompatible with the 1776 Constitution.

    That all the laws of this Province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this Colony (such only excepted, as are incompatible with this Charter) and shall be, according as heretofore, regarded in all respects, by all civil officers, and others, the good people of this Province. [XXI]

    In The Speech of His Excellency William Franklin to the Gentlemen of the Council, Mr. Speaker, and Gentlemen of the Assembly dated, Burlington May 22, 1765, William Franklin would say,

    A well regulated Militia is of the utmost Importance to the Security of the Inhabitants from foreign Invasions, and internal Commotions. [New Jersey Archives, First Series, Vol. XXIV Newspaper Extracts Vol. V 1762-1765. Pgs. 540 & 543.]

    If George Mason used the analogue,

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power,

    in the 13th clause of the VDR in 1776, and first used the terminology,

    …that a well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government, [Rutland, R. A. (Ed.). (1970). The Papers of George Mason (Vol. 1). Chapel Hill: The University of North Carolina Press. Page 212.]

    in the Fairfax County Committee of Safety Proceedings in January of 1775, how did William Franklin come to use the phrase a full ten years earlier in 1765 if it wasn’t a common law right of New Jersey citizens as per Burton?

    In the Political Works of Andrew Fletcher, Fletcher wrote A Discourse of Government with relation to Militias that was printed in 1698 and Fletcher uses the term well regulated militia, not with a free government as Mason did in 1775, but closer William Franklin’s “Security of the Inhabitants from foreign Invasions and internal Commotions”

    Let us now consider whether we may not be able to defend ourselves by well-regulated militias against any foreign force, though never so formidable: that these nations may be free from the fears of invasion from abroad, as well as from the danger of slavery at home. [Fletcher, A. (1997). Political Works. (J. Robertson, Ed.) Cambridge: Cambridge University Press. Page 19.]

    Fletcher’s “fears or invasions” looks strikingly similar to the militia clause of Article 1 Section 8 to “repel Invasions”. But “the danger of Slavery at home” looks more like the Second Amendment than the Militia Clause’s “suppress Insurrections.”

    However, in his Speeches by a Member of the Parliament, of 1703, Fletcher does lay the ground work for the 2nd.

    We also know that a good and well regulated militia is of so great importance to a nation, as to be the principal part of the constitution of any free government. [Fletcher, A. (1997). Political Works. (J. Robertson, Ed.) Cambridge: Cambridge University Press. Page 166.]

    In 1703, Andrew Fletcher used free government just like George Mason did in 1775 and well-regulated militia just like William Franklin in 1765. It appears that the free government of Fletcher and Mason has a lot more in common with the Security of the Inhabitants than the right of the States to arm their militia.

    Nevertheless the New Jersey Citizens in 1765 were not defending from foreign invasions with 2C:58-3 Permits and their guns “in their homes.” In order to defend against and invasion the citizens must bear viz., carry their arms in public. And that is not just for invasions, that goes for internal Commotions i.e. enforcement of the laws as well. Any remaining claim that “the common law did not recognize any absolute right to bear arms” was just ousted like William Franklin by the New Jersey Militia at the onset of the Revolution.

  • February 28, 2018 5:30 PM | Anonymous member

    In Federalist 26 Hamilton wrote,

    “Schemes to subvert the liberties of a great community require time to mature them for execution.” [Hamilton, A., Madison, J., & Jay, J. (2000). The Federalist. Birmingham: Palladium Press. 164.]

    During the Debates of the Federal Constitution, on August 23, 1787, the Committee of Eleven were responsible for the Militia Clauses in Article 1 Section 8. [Elliot's Debates, Volume 1 pg. 258; See Vol. 1, pg. 248 (naming Langdon, King, Sherman, Livingston, Clymer, Dickinson, M'Henry, Mason, Williamson, C. C. Pinckney, Baldwin to the Committee.)]

    George Mason was on the Committee of Eleven with New Jersey’s William Livingston and

    >‘Mason (had) introduced the subject of regulating the militia. He thought such a power necessary to be given to the general government. He hoped there would be no standing army in time of peace, unless it might be for a few garrisons. The militia ought, therefore, to be the more effectually prepared for the public defence. Thirteen states will never concur in any one system, if the disciplining of the militia be left in their hands. If they will not give up the power over the whole, they probably will over a part, as a select militia. He moved, as an addition to the propositions just referred to the committee of detail, and to be referred in like manner, “a power to regulate the militia.”’ [Elliot's Debates, Volume 5, pg. 440. Saturday, August 18, 1787.]

    But even though Mason had initiated the Militia Clause of Article 1 Section 8 (Congress shall have Power To ...provide for calling forth the Militia), a year later on Saturday, June 14, 1788, Mason became panicked about his own Militia Clause saying “unless there be some restrictions on the power of calling forth the militia … we may very easily see that it will produce dreadful oppressions.” Mason was afraid the Militia Clause could be used to make the people hate militia duty and install a standing army. Mason was looking for some form of Constitutional Protection guarantees and told the following story which means as much to us in New Jersey in 2018 as it did in 1787. Mason said,

    >“No man has a greater regard for the military gentlemen than I have. I admire their intrepidity, perseverance, and valor. But when once a standing army is established in any country, the people lose their liberty. When, against a regular and disciplined army, yeomanry are the only defence,--yeomanry, unskilful and unarmed,--what chance is there for preserving freedom? Give me leave to recur to the page of history, to warn you of your present danger. Recollect the history of most nations of the world. What havoc, desolation, and destruction, have been perpetrated by standing armies! An instance within the memory of some of this house will show us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, (Sir William Keith) who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia. [Here Mr. Mason quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought, at the same time, to have some such power. But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use. I am not acquainted with the military profession. I beg to be excused for any errors I may commit with respect to it. But I stand on the general principles of freedom, whereon I dare to meet any one. I wish that, in case the general government should neglect to arm and discipline the militia, there should be an express declaration that the state governments might arm and discipline them. With this single exception, I would agree to this part, as I am conscious the government ought to have the power. [Elliot's Debates, Volume 3 page 380.]

    Mason never signed the Constitution because it didn’t contain a Bill of Rights to protect against this. [See Elliot's Debates, Friday, June 27, 1788. Vol. 3 Pg. 659. (proposed Bill of Rights 17th Clause "That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."); Elliot's Vol. 5 pg. 502 (Col. MASON seconded the motion, declaring that he would sooner chop off his right hand than put it to the Constitution as it now stands.)]

    But to us in New Jersey we have to look at Mason's words (citing Keith), “to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.”

    Look at the laws in New Jersey now. No Carry Permits for anyone. 15 round magazines, no flash suppressors, no bayonet lugs, no collapsible stocks, no .50 Caliber, Permit for every handgun, one gun a month &c. &c. 

    Look at the Bills ready to be signed by Murphy.

    A2761 Magazine Ban: Reduces maximum capacity of ammunition magazines to 10 rounds.

    A2758 Kills right to carry: Codifies regulations defining justifiable need to carry handgun.

    A2757 Requires dealer background checks for private gun sales.

    A1016 Smart Guns: Establishes commission to approve smart guns; requires firearm retailers to sell smart guns.

    A1217 Authorizes gun violence restraining orders and firearm seizure warrants.

    A1181 Requires firearms seizure when mental health "professionals" think someone poses risk.

    Is Murphy the modern day Sir William Keith?

    Is Murphy, like Keith, trying to disarm us?

    Is Murphy, like Keith, trying to “weaken us?”

    Is Murphy, like Keith, trying to let us sink gradually, by totally disusing and neglecting the militia?”

    Historically understanding a government would try to disarm its own people to enslave them, the only other question becomes, what exactly is Murphy trying to do? 

    "Schemes to subvert the liberties of a great community require time to mature them for execution." 

    "unarmed,--what chance is there for preserving freedom?" 

  • February 27, 2018 9:39 AM | Anonymous member

    My name is Jay Factor. I am currently working with Mark Cheeseman and John Jillard on the brief to take "urgent necessity" out of the Administrative Code and to take the Siccardi Rule out as NJ Court precedent in 2C:58-4 Handgun Carry Permits.  

    I would like to start my first post off by thanking everybody at CNJFO for meeting with us last week and giving us a chance to explain the case, asking questions and actually listening to what we were saying. Great Group of People who are truly stewards of the RKBA. 

    "New Jersey allows you to keep guns, but the State has no bear arms clause in the constitution allowing you to carry arms." That is what my County Judge told me when I was denied my 2C:58-4 Permit in 2008. (If you want to look me up see IN THE MATTER OF THE DENIAL OF THE APPLICATION OF JAY FACTOR FOR A PERMIT TO CARRY A HANDGUN App. Div. Docket No. A-5202-08T4. Decided April 21, 2010.) Is that true? How can that be if the term militia is used in the constitution seven times? 

    When discussing our rights as NJ citizens to Carry Handguns with 2C:58-4 Permits, my thought (to properly explain the right as it existed in NJ "at the time of the founding", (which is how Heller interpreted the right) was for a first post to go back to the beginning, more or less, in NJ, to see what our NJ founders thought the Second Amendment meant to them. 

    William Paterson was a member of the Provincial Congress of May, 1775, signer of the New Jersey Constitution of 1776, first Attorney General for the State of New Jersey and compiler of Paterson’s Laws, which re-codified all of NJ's Laws after separation from Great Britain. 

    We all know what the Federalist Papers are. The US Supreme Court would say "(t)he opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth." [Cohens v. Virginia, 19 US 264 - Supreme Court 1821 at 418.]

    George Washington himself, would appoint William Paterson to the Supreme Court where Paterson took his Judicial Oath on March, 11th 1793. Like a Federalist Paper, writing under the surname Aurelius, Paterson’s Essay on a Well Regulated Militia was printed in the New Brunswick Guardian February 13, 1793 , just twenty six days before he took the oath of the Supreme Court. The only logical deduction is that Supreme Court Justice Paterson held the same opinion of the militia as Aurelius, his pseudonym as author of Essay

    The original draft is in Archibald S. Alexander Library Special Archives section at Rutgers.  There is a printed transcription available at Journal of the Rutgers University Libraries June 1955, Volume XVIII, #2, pages 41-43 find in special archives @ Rutgers University Library Journal, call number 16-20, 1952-1957. ALEX, NJ, Z, 733, .R955. There are no pictures allowed in Special Archives and this hand transcribed by me. Outside of my private Facebook page 2C:58-4, Paterson's Essay has never been online before. With the exception of the readers of the Rutgers Library Journal in 1955, this has not been read since 1793. Enjoy.

    Essay on a Well Regulated Militia

    A well regulated militia is considered as essential to the preservation of civil liberty. What, indeed, is a militia but the people themselves prepared to act as soldiers for the purpose of resisting oppression and securing their rights. To be prepared for war is the way to prevent it; to be ready in arms to meet and resist tyranny never fails to deter it approach. Tyrants dred freemen, when freemen not only have arms in their hands, but know how to use them. Discipline, aided and enforced by the energy and impulse of freedom, is irresistible. Even men untutored in the art of war, but resolved to be free or die, have achieved wondrous things. Witness Switzerland and the Netherlands; witness America and France. The citizens of New Jersey are too enlightened to stand in need of any dissertation upon the utility and importance of well-organized and disciplined militia. Congress have begun this interesting work, the legislature have pursued it; but it depends on you my countrymen, to finish it.* By the constitution it is ordained, that the men of every company shall elect their own officers; shortly you will be called upon to execute this important duty. Much depends upon its proper discharge; your own honor, your own liberty, and the transmission of that liberty to generations unborn. What persons should be the object of choice, with what vices uncontaminated, and with what virtues and talents adorned? Pause; the questions are weighty; think upon them carefully and often, for well they deserve your most serious consideration. Choose not the drunkard; he is wedded to his bottle and glass, and fit for nothing but to swallow whiskey and grog! Call upon him to forsake his beloved liquor, to foreswear the bowl, and to resume his original manhood; the call is in vain; he would sooner forsake and forswear friends, and relations, family and country, than forego one drop of the intoxicating draught; he is useless to society, worse than useless, his example is bad, and, if in office, dreadfully influential and contagious. More is to be feared from a drunken officer than any host of foes. Alas! that so many promising parts and amiable dispositions should fall a sacrifice to this debasing and dead-doing vice. Avoid, therefore the drunkard; shun him in pestilence. Choose not a man of indolence and sloth. The life of an officer, when in the field, is a life of activity, of vigilance, and toil; he rises early and late takes rest; duties are continually pressing upon him, when one is discharged, another waits; he is always doing and never done. Is a man, made up of nature’s heaviest mould, to whom thought is labor, and activity is death, fit for a station, which requires unremitting diligence, constant energy, and the most strenuous exertions? Choose not an ignorant man. Can he teach others, who stands in need of being taught himself? A person of an over-easy and indulgent temper is not formed for an officer; his pliability, and, perhaps, fondness to please, relax discipline, and destroy subordination; ductile and obsequious, his men work him into any shape; he yields to their solicitations, grants what they ask, and wills what they wish. What an inversion of order! Instead of leading, he follows, and instead of commanding, obeys. Avoid such a character, if you wish to be a expert in military exercise, to be useful to the public, or respectable in the eyes of your fellow citizens. Above all, shun and despise the man, who attempts to gain votes by dealing out bottles of brandy and bowls of grog, or other improper means and base arts. Can the spirit of freemen endure such conflict, or suffer the perpetrator to rise into office by the profuse distribution of spirituous liquors and strong drink? Every attempt of this kind resent and indignantly repel. Esau sold his birthright for a mess of pottage. Baser ye, if you barter your suffrages for a glass of brandy, or a can of grog. Choose the sober and sensible, the cool and brave, the steady and prudent man; the man who knows or is capable of knowing his duty, and will discharge it faithfully; the man who is collected in the midst of danger, and firm and decided in every state of things; the man who has a becoming degree of pride, and is ambitious to excel, who courts distinction, has the honor of soldiery at heart, and makes their glory his own; the man who possesses an elevating fervor of sentiment, whose spirit animates, and whose ardor warms. Bear in mind, I beseech, that on the selection of proper characters for the office depends [sic] the formation and discipline, the arrangement and evolutions of military bodies. A mistake in this particular is ruinous beyond repair. With you rest the power of Choice; with this power are intimately connected the honor & safety, the military state and frame of every corps; in short, the establishment of an effective Militia depends upon the election of proper officers or, in other words, upon your own suffrages. Highly then, it becomes every individual to examine the qualifications of the respective candidates before he proceeds to vote. Permit me to conclude with a short address to such as are exempted from militia duty on the score though beyond the age** prescribed for military life, still much is in your power and effect. By advice you can aid, and by your presence encourage. Readily impart both. The military spirit beats strong and high; suffer it not to abate. Interest and duty unite in the call and say catch, oh! catch! the rising ardor, cherish and fan it into a general flame. Contemplate, again and again contemplate, the late revolution, in which you bore an active part; arduous and bloody, and dubious was the conflict, and many and gloomy were the hours, that past over your heads. Dark days may again return; clouds may again obscure our political horizon; again may the oppressor arise and attempt to enslave. Your sons may be called upon to act the part, which you have so gloriously performed. You have given them freedom; instruct them how to preserve the inestimable gift. Bid them, arm; bid them learn the use of arms. Say, with these weapons we fought our way to liberty and independence; gently sinking into the vale of life, we now resign them to our sons; and, sacred to freedom! May they never, never tarnish in your hands. No never to tarnish, reiterate and vow the generous and ardent youths.


    * Congress provided for the establishment of a uniform militia system in the act of May 28, 1792. The corresponding New Jersey law was enacted November 30, 1792.

    ** Enrollment for militia duty was required of men between the ages of eighteen to forty five.

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