Home -> Law Blog Directory -> Academic Blogs -> Is That Legal

Academic

: Is That Legal

Gun Rights in Georgia

By Eric Muller

Yesterday's Supreme Court gun-rights argument in Heller caused me to query how the issue of gun rights was viewed by early 19th century state courts. An 1846 ruling from the Georgia Supreme Court seemed the most interesting. The case is called Nunn v. State. The issue was whether a state law regulating the sale of hand guns and knives for use as concealed weapons, under which the defendant was convicted, was unconstitutional. First, the Georgia court ruled that the 2nd Amendment applied to the states, just as -- citing one of its earlier rulings -- the 5th Amendment's double-jeopardy clause applied to the states. No incorporation theory at work there. Nor any reference to the 9th Amendment. Just a textual argument that many of the protections of the Bill of Rights apply to limit the powers of both the federal and state governments:

I am inclined to the opinion, that the article in question does extend to all judicial tribunals whether constituted by the Congress of the United States or the States individually. The provision is general in its nature and unrestricted in its terms; and the sixth article of the Constitution declares, that the constitution shall be the supreme law of the land, and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary not withstanding. These general and comprehensive expressions extend the provisions of the Constitution of the United States, to every article which is not confined by the subject matter to the national government, and is equally applicable to the States. . . . The right of the people peaceably to assemble and petition the government for a redress of grievances; to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures; in all criminal prosecutions, to be confronted with the witness against them; to be publicly tried by an impartial jury; and to have the assistance of counsel for their defence, is as perfect under the State as the national legislature, and cannot be violated by either.

Next, the court ruled that the 2nd Amendment established a fundamental right. Finally, the court ruled that a portion of the statute at issue was constitutional:

We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed.

I don't foresee the Supreme Court ruling in Heller that the 2nd Amendment protects the right to carry weapons openly. On the other hand, that the 2nd Amendment protects an individual right seems clear in all the early cases on the topic. Just as was a state legislature's power to regulate the manner in which that right was exercised.

Full post as published by Is That Legal on March 19, 2008 (boomark / email).