Bruen directs judges to perform a text, history and tradition only analysis to Second Amendment cases without any judicial balancing of the government's interest in the challenged law against the importance of the asserted right to "keep and bear arms."
The court said: In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10 (1961). New York State Rifle & Pistol Association, Inc. v. Bruen :: 597 U.S. ___ (2022) :: Justia US Supreme Court Center
In the colonial, founding, and early republic periods, Americans were recognized as having the right peaceably to bear or carry arms in public. The only exception was the slave codes that prohibited slaves and, in some states, free blacks from bearing arms without a license that government authorities had discretion to grant or deny. See Stephen P. Halbrook, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? 204-63 (2021).
In sum, having no arms right was an incident of slavery. Even free blacks were required to obtain a license to possess or carry a firearm, and the license could limit possession to one’s premises.
Slaves were deprived of all of the rights that would be set forth in the Bill of Rights. The Second Amendment was not unique in that regard. St. George Tucker summarized their plight thus:
To go abroad without a written permission; to keep or carry a gun, or other weapon; to utter any seditious speech; to be present at any unlawful assembly of slaves; to lift the hand in opposition to a white person, unless wantonly assaulted, are all offences punishable by whipping.
St. George Tucker, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of It, in the State of Virginia 65 (1796).
Virginia law provided: “No free negro or mulatto, shall be suffered to keep or carry any firelock of any kind, any military weapon, or any powder or lead, without first obtaining a license from the court of the county or corporation in which he resides . . . .” Ch. 111, §§ 7 & 8, 1 Va. Code 423 (1819).
As a Virginia court held, among the “numerous restrictions imposed on this class of people [free blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States,” was the restriction “upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. 447, 449 (Gen. Ct. 1824). The contrast with free citizens was stark. Calling the Second Amendment “the true palladium of liberty,” St. George Tucker wrote: “The right of self defence is the first law of nature . . . . Wherever . . . the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 St. George Tucker, Blackstone’s Commentaries, App., 300 (1803).
Virginia’s only restriction on free citizens was not enacted until 1838, and it related just to the manner of bearing arms: “If a free person, habitually, carry about his person hid from common observation, any pistol, . . . he shall be fined fifty dollars.” Va. Code, tit. 54, ch. 196, § 7 (1849).
Other southern states recognized the right to carry arms by free citizens subject to restrictions on concealed carry, and either banned carry by African Americans or subjected it to discretionary licensing. The Kentucky Constitution provided: “That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” Ky. Const., Art. XII, § 23 (1792). Its restriction on concealed carry was declared violative of that right. Bliss v. Commonwealth, 2 Litt. 90, 92 (Ky. 1822).
However, Kentucky law provided that “[n]o negro, mulatto, or Indian, whatsoever, shall keep or carry any gun,” except that “every free negro, mulatto or Indian, being a house-keeper, may be permitted to keep one gun,” and “all negroes, mulattoes and Indians, bond or free, living at any frontier plantation, may be permitted to keep and use guns . . . by license from a justice of the peace . . . .” Ch. 174, §§ 5& 6 (1798), in 2 Digest of the Statute Law of Kentucky 1150 (1822).
Maryland made it unlawful “for any free negro or mulatto to go at large with any gun, or other offensive weapon . . . .” Ch. 86, § II (1806), in 3 Laws of Md. 297 (1811). However, this did not “prevent any free negro or mulatto from carrying a gun” if he had “a certificate from a justice of the peace, that he is an orderly and peaceable person . . . .” Id
The Court of Appeals of Maryland described “free negroes” as being treated as “a vicious or dangerous population,” as exemplified by laws “to prevent their migration to this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness.” Waters v. State, 1 Gill 302, 309 (Md. 1843).
Some free blacks obtained both permits to travel and gun licenses. “As they traveled with a permit or carried a licensed gun, they were that much closer to citizenship.” Martha S. Jones, Birthright Citizens: A History Of Race and Rights in Antebellum America 106-07 (2018)
Alabama provided that “no slave shall keep or carry any gun,” but added that “any justice of the peace may grant . . . permission in writing to any slave, on application of his master or overseer, to carry or use a gun and ammunition within the limits of said master’s or owner’s plantation . . . .” Digest of the Laws of the State of Ala. 391-92 (1833).
Tennessee’s first constitution declared: “That the freemen of this State have a right to keep and to bear arms for their common defence.” Tenn. Const., Art. XI, § 26 (1796). “[S]o solemn an instrument hath said the people may carry arms . . . .” Simpson v. State, 13 Tenn. 356, 360 (1833).
By contrast, Tennessee law provided that “[n]o slave shall go armed with gun, sword, club or other weapon” without a certificate from the county court. Acts 1741, c. 24, in 1 Statute Laws of the State of Tennessee of a Public & General Nature, 314 (1831).
Reflecting the above, Tennessee amended its constitutional guarantee, which Arkansas and Florida copied, to state: “That the free white men of this State shall have a right to keep and to bear arms for their common defence.” Tenn. Const., Art. I, § 26 (1834); Ark. Const., Art. II, § 21 (1836); Fla. Const., Art. I, § 21(1838).
Delaware had no restrictions on the peaceable carrying of arms by white persons. However, it forbade “free negroes and free mulattoes to have, own, keep, or possess any gun [or] pistol,” except that such persons could apply to a justice of the peace for a permit to possess a gun, which could be granted with a finding “that the circumstances of his case justify his keeping and using a gun . . . .” Ch. 176, § 1, 8 Laws of the State of Del. 208 (1841). The police power was said to justify restrictions such as “the prohibition of free negroes to own or have in possession fire arms . . . .” State v. Allmond, 7 Del. 612, 641 (1856).
North Carolina declared: “That the people have a right to bear arms for the defense of the state . . . .” N.C. Dec. of Rights, Art. XVII (1776). Thus, “[f]or any lawful purpose — either of business or amusement - the citizen is at perfect liberty to carry his gun.” State v. Huntley, 25 N.C. (3 Ired.) 418, 422-23 (1843). But North Carolina made it unlawful “if any free negro, mulatto, or free person of color, shall wear or carry about his or her person, or keep in his or her house, any shot gun, musket, rifle, pistol, sword, dagger or bowie-knife, unless he or she shall have obtained a licence therefor from the Court of Pleas and Quarter Sessions of his or her county . . . .” State v. Newsom, 27 N.C. 250, 207 (1844) (Act of 1840, ch. 30). The provision was upheld partly on the ground that “the free people of color cannot be considered as citizens . . . .” Id. at 254
The court further averred: “It does not deprive the free man of color of the right to carry arms about his person, but subjects it to the control of the County Court, giving them the power to say, in the exercise of a sound discretion, who, of this class of persons, shall have a right to the licence, or whether any shall.” Id. at 253.
“[T]he Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). The English Declaration of Rights recognized thirteen “true, ancient and indubitable rights,” including the following: “That the Subjects which are Protestants, may have Arms for their Defence . . . .” 1 W. & M., Sess. 2, c.2, (1689).
“By the time of the founding, the right to have arms had become fundamental for English subjects.” Heller, 554 U.S. at 593. “Americans valued the ancient right . . . even more important for self-defense and hunting” than for militia. Id. at 599.
The Massachusetts Declaration of Rights, Article 1 (1780), stated that “[a]ll men are born free and equal, and have certain natural, essential, and unalienable rights,” including “the right of enjoying and defending their lives and liberties . . . .” And it provided in Article 17: “The people have a right to keep and to bear arms for the common defence.”
In the Virginia convention, George Mason recalled that “when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised . . . to disarm the people; that it was the best and most effectual way to enslave them.” 3 Jonathon Elliot ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution 380 (1836).
South Carolina law provided that no person of color “shall, without permission in writing from the District Judge or Magistrate, be allowed to keep a fire arm . . . .” S.C. Stat., No. 4730, § XIII, 250 (1865). An African American convention resolved that “the late efforts of the Legislature of this State to pass an act to deprive us of arms be forbidden, as a plain violation of the Constitution . . . .” 2 Proceedings of the Black State Conventions, 1840-1865, 302 (1980). Senator Charles Sumner summarized the petition, noting “that they should have the constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press.” Cong. Globe, 39th Cong., 1st Sess. 337 (1866).
Rep. William Lawrence quoted Order No. 1 (1866) for the Department of South Carolina, which declared:
The constitutional rights of all loyal and well disposed inhabitants to bear arms, will not be infringed; nevertheless this shall not be construed 20 to sanction the unlawful practice of carrying concealed weapons; nor to authorize any person to enter with arms on the premises of another without his consent.
Cong. Globe, 39th Cong., 1st Sess., 908-09 (1866).
This order was repeatedly printed in the Loyal Georgian, a black newspaper, beginning with the issue of Feb. 3, 1866, at 1. That issue also included the following:
Have colored persons a right to own and carry fire arms?
A Colored Citizen Almost every day we are asked questions similar to the above. . . .
Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms, and states that this right shall not be infringed. . . . All men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves. Id. at 3.
Deprivation of the right to bear arms was debated in bills leading to enactment of the Freedmen’s Bureau Act and the Civil Rights Act of 1866. Rep. Thomas Eliot, sponsor of the former, explained that the bill would render void laws like that of Opelousas, Louisiana, providing that no freedman “shall be allowed to carry fire-arms” without permission of his employer and as approved by the 21 board of police. Cong. Globe, 39th Cong., 1st Sess. 517 (1866). He quoted from a report that in Kentucky “[t]he civil law prohibits the colored man from bearing arms . . . .” Id. at 657
Senator Garret Davis said that the Founding Fathers “were for every man bearing his arms about him . . . for his own defense.” Id. at 371. Yet places like Alexandria, Virginia “enforce[d] the old law against them in respect to whipping and carrying fire[1]arms . . . .” Report of the Joint Committee on Reconstruction, H.R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, at 21 (1866)
Rep. George W. Julian argued: Although the civil rights bill is now the law, . . . [it] is pronounced void by the jurists and courts of the South. Florida makes it a misdemeanor for colored men to carry weapons without a license to do so from a probate judge, and the punishment of the offense is whipping and the pillory. South Carolina has the same enactments . . . Cunning legislative devices are being invented in most of the States to restore slavery in fact.
A Mississippi court declared the Civil Rights Act void in upholding the conviction, under the 1865 Mississippi law quoted above, of a freedman for carrying a musket without a license while hunting.
New York Times, Oct. 26, 1866, at 2.
Another Mississippi court found the ban on freedmen having arms without a license void: The citizen has the right to bear arms in defense of himself, secured by the constitution. . . . Should not then, the freedmen have and enjoy the same constitutional right to bear arms in defence of themselves, that is enjoyed by the citizen? . . . While, therefore, the citizens of the State and other white persons are allowed to carry arms, the freedmen can have no adequate protection against acts of violence unless they are allowed the same privilege.
New York Times, Oct. 26, 1866, at 2.
The above judicial decisions were noted in a report from General Ulysses S. Grant stating: “The statute prohibiting the colored people from bearing arms, without a license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).
“In sum, it is clear that the Framers [of the constitution] counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald, 561 U.S. at 777. As such, the right of a law abiding person to carry a firearm could not be dependent on the discretion of an official nor subject to license from the same.
Patsy, 457 U.S. at 504 n.6 (citing remarks of Rep. Washington Whitthorne). On the same page of his speech, Whitthorne objected that “if a police officer . . . should find a drunken negro or white man upon the streets with a loaded pistol flourishing it, & c., and by virtue of any ordinance, law, or usage, either of city or State, he takes it away, the officer may be sued, because the right to bear arms is secured by the Constitution . . . .” Cong. Globe at 337.
In sum, the Civil Rights Act of 1871 was understood to provide a remedy to persons who were deprived of the right to bear firearms. No one suggested that the right was limited to one’s house or that the state could licenses to carrying of arms.
The laws that licensed the carrying of arms and the schemes that subjected African Americans to such a discretionary licensing system were among the deprivations that prompted Congress to act and abolish by repeatedly arguing the preexisting right to keep and bear arms without a license as guaranteed in the plain text of the second amendment.
In 1892, Ida B. Wells wrote that a “Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.” Ida B. Wells, Southern Horrors: Lynch Law in All its Phases 16 (1892). She had in mind recent events in Jacksonville, Florida, and Paducah, Kentucky, where well-armed blacks had thwarted lynch mobs.
Perhaps not coincidently, a year later Florida made it a crime for a person “to carry around with him, or to have in his manual possession” a “Winchester rifle or other repeating rifle” without a license, which “may” be granted after posting a $100 bond with approved sureties. 1893 Fla. Laws 71-72. (In 1901, the law was amended to add pistols to the list.) That would be equivalent to $2,859 today.
The average monthly wage for farm labor in Florida in 1890 was $19.35.6 Licenses were obviously beyond the means of poor persons, not to mention the unlikelihood of them being issued to African Americans. This law “was passed when there was a great influx of negro laborers in this State,” and it was “for the purpose of disarming the negro laborers . . . . The statute was never intended to be applied to the white population . . . .” Watson v. Stone, 148 Fla. 516, 524, 4 So. 2d 700 (1941) (Buford, J., concurring). Moreover, it was estimated that “80% of the white men living in the rural sections of Florida have violated this statute,” “not more than 5% of the men in Florida who own pistols and repeating rifles have ever applied” for a license, and that “there had never been . . . any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested.”
The Jim Crow era, with its regime of legal discrimination based on race, ended with the enactment of federal civil rights legislation in the 1960s. Exercise of the right to bear arms for self-defense was essential to protect members of the civil rights movement. Laws that subjected the right to bear arms to licence issuance played a role in the history of the civil rights movement. Perhaps the most stark illustration was the denial of a carry license to Martin Luther King, Jr.
In historical perspective, Massachusetts (and other states) licensing scheme colored as law is heir to the Black Codes and Jim Crow regimes except that, instead of discriminating only against black people, in the age of pretended color-blindness in a system that too often disproportionately impacts black Americans in all aspects of life, it deprives the people at large of the right to bear arms, which is reserved to members of a privileged class determined by government officials via the issuance of licenses.
By definition a license falls within the prohibition stated in the Murdock Court as one literally has to pay a licensee fee to then have the permission to exercise what the federal constitution already grants. This license fee thus makes the right a privilege and thus transferrable. Making it an infringement on rights that are, according to the unanimous Declaration of Independence, inalienable. Henry Campbell Black's Law dictionary 4th edition, page 1067 defines a license as "Permission to do something which without the license would not be allowable. " Yet the right to bear arms, is a public and individual right; and the 2nd amendment itself allows possession thereof.
It continues to define it as "a permission ... to do some act which without such authorization would be illegal, or would be a trespass or tort; A permit or privilege to do what otherwise would be unlawful." Yet the second amendment already allows, permits and makes lawful the possession of arms. There are several states with 'constitutional carry' or permit-less carry laws. Those laws are entirely based on the fact that the second amendment already guarantees the right to keep, possess, carry and bear arms without a license. Therefore, no one needs permission, which a license is permission, to exercise said right.
In Chief of Police of Shelburne v. Moyer, the Massachusetts Court of Appeals concluded, consistent with Davis, that a statute requiring a person to have a license in order to carry a firearm did not violate the constitution because "[t]here is no right …for a private citizen to keep and bear arms and thus to require that a citizen have a license to do so is not unconstitutional."…
Clearly with the Heller court’s decision, according to the Massachusetts court of appeals, since there is an individual right to keep and bear arms, any law requiring a citizen to have a license is in fact unconstitutional.
Black's Law Dictionary also states that a license is a "privilege from the state or sovereign. " The second amendment specifies that it is a right. The supreme court has already confirmed that the second amendment codifies a preexisting natural right. Rights are clearly distinguished from privileges. So with the nature, purpose and plain text definition of a license, it is unconstitutional to license a right.
According to page 1487 of Black's Law Dictionary, under the subsection 'CONSTITUTIONAL LAW', a natural right is defined as "those which grow out of the nature of man and depend upon personality, as distinguished from such as are created by law... they are those which are plainly assured by natural law... in order to fulfill the ends to which his nature calls him." Clearly, things that are derived from nature, cannot be licensed and are not privileges from the state or sovereign. The book continues to state that "The term right, in civil society, is defined to mean that which a man is entitled to have, or to do, or to receive from others... " A privilege, by contrast is defined on page 1359 as "a peculiar advantage, exemption or immunity"; "enjoyed by a person, company, or class, beyond the common advantages of other citizens. "
But the bill of rights is free and open to all, they do not only apply to specified groups or people beyond the common advantages of other citizens. And therefore, are not privileges subject to licenses. Or as the Supreme Court in Bruen put it, "The constitutional right to bear arms in public for self-defense is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees."
The act of paying for the license and then being granted the privilege to keep and bear arms under the name possession, is the exact opposite of inalienable. According to Henry Campbell Black’s Law dictionary 4th edition, page 903, inalienable is defined as " ...those things which cannot be bought or sold or transferred from one person to another..." By licensing the right, and converting the possession of a firearm it into a crime if one does not have a license, it is thus converted in to a privilege; and by charging a fee, that privilege is then being bought and transferred from government officials to the people, i.e., person to person, in violation of the federal constitution and republican principles.
The Supreme Court also said "[a]cross constitutional rights, the courts have consistently forbidden the use of special fees and taxes on constitutionally protected conduct to generate general revenue."
It is clear that the license scheme generates revenue, by both the application process and litigation in courts, i.e. fines, court fees and prison or jail time.
The Supreme court also stated that "It could hardly be denied that a tax laid specifically on the exercise of those freedoms would be unconstitutional. Yet the license tax imposed by this ordinance is, in substance, just that. "
A license tax according to page 1069 of Henry Campbell Black's Law dictionary 4th edition is a "Charge or fee imposed primarily for... the protection of the safety of the public, or the regulation of relative rights, privileges or duties... " This is clearly what the statutory licensing scheme is designed to do and according to the supreme court, it is clearly unconstitutional.
The same dictionary on page 1070 continues to state that a license tax is "in the exercise of the ordinary police power of the state", clearly the statutes imposed on me in this case are imposed by police power, as I would have to have gotten the permission from them. The Murdock Court also explained that the bill of rights exists apart from state authority. The amendments are guaranteed to the people by the Federal Constitution and since they are, they cannot be subject to a license, a fee, a license fee, a license tax or criminal liability.
The Murdock Court made it plain: A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution ... a person cannot be compelled "to purchase, through a license fee or a license tax, the privilege freely granted by the constitution. 11 Blue Island v. Kozul, 379 Ill. 511,519, 41 N.E.2d 515.
There is also reference to a case in Tennessee in 1833. The state's highest court offered its interpretation of the right to bear arms. See Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833), cited in Heller, 554 U.S. at 585 n.9.
After Simpson was convicted of disturbing the peace by appearing armed in public, which in essence these are the nature of the allegations made against me under the guise of "unlicensed possession", codified in statutes under the guise of "public safety"; Simpson faulted the indictment for failing clearly to require proof of actual violence. Id. at 357- 58. The high court agreed, because---even assuming that colonial law did not require proof of actual violence to punish colonists for walking with weapons-the Tennessee "constitution ha[d] completely abrogated it." Id. at 360. No such prohibition could survive the state constitution's grant of "an express power ... secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature." Id. Absent an act of violence, then, Simpson's indictment for merely carrying firearms could allege no crime tolerable to the constitution of Tennessee.
The courts in their historical analysis, which I provided to this court, did not solely rely on this one reference regarding the historical context of the second amendment. But in every case referenced, there was never any mention of the need of a license, nor punishment and or criminal liability for not having a license. This is because, by definition, according to Henry Campbell Black's Law Dictionary 4th edition, page 1070 a license is 'permission' and just as referenced in Bruen and Young, only slaves needed permission from their masters to keep and bear arms.
This fact is pointed out in the United States Supreme Court Case McDonald v. City of Chicago, 561 U.S. 742 (2010). The court stated the following: "Many legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well. Footnote 18 "Black Code, ch. 33, §19, 1806 La. Acts pp. 160, 162 (prohibiting slaves from using firearms unless they were authorized by their master to hunt within the boundaries of his plantation); Act of Dec. 18, 1819, 1819 S. C. Acts pp. 29, 31 (same); An Act Concerning Slaves, §6, 1840 Tex. Laws pp. 42-43 (making it unlawful for "any slave to own firearms of any description").
In 1832, James Kent, sometimes called the "American Blackstone", was a respected New York legislator and legal scholar. Wrote that "in most of the United States, there is a distinction in respect to political privileges, between free white persons and free colored persons of African blood; and in no part of the country do the latter, in point of fact, participate equally with the whites, in the exercise of civil and political rights." Although Black Codes existed before the Civil War and many Northern states had them, it was the Southern U.S. states that codified such laws in everyday practice. The best known of them were passed in 1865 and 1866 by Southern states, after the Civil War, in order to restrict African Americans' freedom, and to compel them to work for low or no wages. The goal was to suppress the influence of free blacks (particularly after slave rebellions) because of their potential influence on slaves. Restrictions included prohibiting them from voting, bearing arms, gathering in groups for worship, and learning to read and write.
Some states explicitly curtailed Black people's right to bear arms, justifying these laws with claims of imminent insurrection. In Mississippi and Alabama, these laws were enforced through the creation of special militias.
Florida's Black Codes passed in 1866 rivaled those of Mississippi and South Carolina in severity. Advised by the Florida governor and attorney general as well as by the Freedmen's Bureau that it could not constitutionally revoke Black people's right to bear arms, the Florida legislature refused to repeal this part of the codes.
Between 1687 and 1865, Virginia enacted more than 130 slave statutes, among which were seven major slave codes, with some containing more than fifty provisions. See
- Palmer, Vernon Valentine (April 2006). "The Customs of Slavery: The War Without Arms". American Journal of Legal History. 2 (48): 177-218. doi:10.2307/25434791. JSTOR 25434791
It is a historical fact that many of these "Black Codes" also known as "The Christian Black Codes" also known as "Codes Noir" also known as "Slave Codes", not only forced all denationalized Moors called Black, into the Roman Catholic religion, but they also had language that specified that "We forbid slaves to carry offensive weapons or heavy sticks under the penalty of being whipped, and of having said weapons confiscated for the benefit of the person seizing the same. An exception is made in favor of those slaves who are hunting or are shooting for their masters, and who carry with them a written permission to that effect, or are being designated by some known mark or badge. "
These same provisions are mentioned in the Massachusetts statute regarding hunting and carrying written permission, which clearly is the license given by the state who is acting as if I am a slave and it is my master. The Massachusetts statute also mentions law enforcement as being exempt from punishment. The statue clearly exempts police from being required to have a license, as, just like the Slave Laws, they are marked by a badge. Also see Ellis Paxson Oberholtzer, A History of the United States since the Civil War(1917) 1:128-129. Quote: "Negroes must not carry knives or firearms unless they were licensed so to do. It was an offence, to be punished by a fine of $50 and imprisonment for thirty days, to give or sell intoxicating liquors to a negro. When negroes could not pay the fines and costs after legal proceedings, they were to be hired at public outcry by the sheriff to the lowest bidder"
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. YOUNG v. STATE OF HAWAII. No. 12-17808. D.C. No. 1:12-cv-00336-HG-BM. …the Black Codes which sought to suppress the ability of freedmen to own guns following the Civil War, there may be reason to question whether similarly illicit goals may have inspired arms restrictions… In sum, the history extensively canvassed above leads to a straightforward conclusion: Beginning in England and throughout the development of the early American Republic, individuals maintained the general right to carry common firearms openly for their own self-defense in public, provided that they did not do so in a way that would “terrorize” their fellow citizens or intrude upon particularly sensitive places like churches or schools… the manner of open public carry has at times been regulated (by laws criminalizing the carry of especially dangerous or unusual weapons with the intent or effect of “terrorizing the people,” surety laws, laws restricting carry in particularly sensitive public places, and the like), and that such narrow regulations have at times been upheld or otherwise left unchallenged… The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right. At the risk of repeating myself (though it does, apparently, bear repeating), the Second Amendment safeguards both the right to keep a firearm and the right to bear—or to carry—that firearm. Neither the text of the Amendment nor its historical interpretations suggests that either right has priority over the other. The obvious inference one should draw is that there is no pecking order between the “core” status of the Amendment’s expressly enumerated guarantees.16 The right to armed self-defense—both by keeping a gun at home and by carrying one elsewhere—lies at the heart of the Second Amendment… Finally, Heller’s historical methodology leads us to the legislative scene following the Civil War. See 554 U.S. at 614–16. Particularly relevant in this period are the efforts of many Southern states to disarm freedmen by adopting Black Codes. 8 For it was universally understood—by these odious laws’ proponents and opponents alike—that the debates over the Black Codes were debates over freedmen’s fundamental constitutional rights. On the one side, “[t]hose who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms.” Heller, 554 U.S. at 614; see also Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (Winter 1995) (“The various Black Codes adopted after the Civil War required blacks to obtain a license before carrying or possessing firearms . . . .
The Federal Law specifies that the age of militia service is 17 years old. Therefore, the alleged minor was well within his federally protected right to be part of a militia that bears arms.
In addition, since the Bruen decision, the licensing scheme that I am allegedly to have violated, was at the time of my arrest unconstitutional and thus null and void. To sever the unconstitutional provisions, is retroactively applying the newly amended law to the date of July 3rd 2021, making it an ex post facto law. Which is unconstitutional. It cannot be amendment and then applied to me after the fact. It, at the time of July 3rd ,2021, before it was amended, was unconstitutional therefore it creates no burden or liability on me as it must be considered null, void, unenforceable and unconstitutional at the time of my arrest. Massachusetts statute requires non-residents, which I am, to apply for a license after showing good cause. I am now being punished for not having a license in violation of a statute that has declared unconstitutional.
The court said: In keeping with Heller, we hold that when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10 (1961). New York State Rifle & Pistol Association, Inc. v. Bruen :: 597 U.S. ___ (2022) :: Justia US Supreme Court Center
In the colonial, founding, and early republic periods, Americans were recognized as having the right peaceably to bear or carry arms in public. The only exception was the slave codes that prohibited slaves and, in some states, free blacks from bearing arms without a license that government authorities had discretion to grant or deny. See Stephen P. Halbrook, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class? 204-63 (2021).
In sum, having no arms right was an incident of slavery. Even free blacks were required to obtain a license to possess or carry a firearm, and the license could limit possession to one’s premises.
Slaves were deprived of all of the rights that would be set forth in the Bill of Rights. The Second Amendment was not unique in that regard. St. George Tucker summarized their plight thus:
To go abroad without a written permission; to keep or carry a gun, or other weapon; to utter any seditious speech; to be present at any unlawful assembly of slaves; to lift the hand in opposition to a white person, unless wantonly assaulted, are all offences punishable by whipping.
St. George Tucker, A Dissertation on Slavery: With a Proposal for the Gradual Abolition of It, in the State of Virginia 65 (1796).
Virginia law provided: “No free negro or mulatto, shall be suffered to keep or carry any firelock of any kind, any military weapon, or any powder or lead, without first obtaining a license from the court of the county or corporation in which he resides . . . .” Ch. 111, §§ 7 & 8, 1 Va. Code 423 (1819).
As a Virginia court held, among the “numerous restrictions imposed on this class of people [free blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States,” was the restriction “upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. 447, 449 (Gen. Ct. 1824). The contrast with free citizens was stark. Calling the Second Amendment “the true palladium of liberty,” St. George Tucker wrote: “The right of self defence is the first law of nature . . . . Wherever . . . the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.” 1 St. George Tucker, Blackstone’s Commentaries, App., 300 (1803).
Virginia’s only restriction on free citizens was not enacted until 1838, and it related just to the manner of bearing arms: “If a free person, habitually, carry about his person hid from common observation, any pistol, . . . he shall be fined fifty dollars.” Va. Code, tit. 54, ch. 196, § 7 (1849).
Other southern states recognized the right to carry arms by free citizens subject to restrictions on concealed carry, and either banned carry by African Americans or subjected it to discretionary licensing. The Kentucky Constitution provided: “That the right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” Ky. Const., Art. XII, § 23 (1792). Its restriction on concealed carry was declared violative of that right. Bliss v. Commonwealth, 2 Litt. 90, 92 (Ky. 1822).
However, Kentucky law provided that “[n]o negro, mulatto, or Indian, whatsoever, shall keep or carry any gun,” except that “every free negro, mulatto or Indian, being a house-keeper, may be permitted to keep one gun,” and “all negroes, mulattoes and Indians, bond or free, living at any frontier plantation, may be permitted to keep and use guns . . . by license from a justice of the peace . . . .” Ch. 174, §§ 5& 6 (1798), in 2 Digest of the Statute Law of Kentucky 1150 (1822).
Maryland made it unlawful “for any free negro or mulatto to go at large with any gun, or other offensive weapon . . . .” Ch. 86, § II (1806), in 3 Laws of Md. 297 (1811). However, this did not “prevent any free negro or mulatto from carrying a gun” if he had “a certificate from a justice of the peace, that he is an orderly and peaceable person . . . .” Id
The Court of Appeals of Maryland described “free negroes” as being treated as “a vicious or dangerous population,” as exemplified by laws “to prevent their migration to this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness.” Waters v. State, 1 Gill 302, 309 (Md. 1843).
Some free blacks obtained both permits to travel and gun licenses. “As they traveled with a permit or carried a licensed gun, they were that much closer to citizenship.” Martha S. Jones, Birthright Citizens: A History Of Race and Rights in Antebellum America 106-07 (2018)
Alabama provided that “no slave shall keep or carry any gun,” but added that “any justice of the peace may grant . . . permission in writing to any slave, on application of his master or overseer, to carry or use a gun and ammunition within the limits of said master’s or owner’s plantation . . . .” Digest of the Laws of the State of Ala. 391-92 (1833).
Tennessee’s first constitution declared: “That the freemen of this State have a right to keep and to bear arms for their common defence.” Tenn. Const., Art. XI, § 26 (1796). “[S]o solemn an instrument hath said the people may carry arms . . . .” Simpson v. State, 13 Tenn. 356, 360 (1833).
By contrast, Tennessee law provided that “[n]o slave shall go armed with gun, sword, club or other weapon” without a certificate from the county court. Acts 1741, c. 24, in 1 Statute Laws of the State of Tennessee of a Public & General Nature, 314 (1831).
Reflecting the above, Tennessee amended its constitutional guarantee, which Arkansas and Florida copied, to state: “That the free white men of this State shall have a right to keep and to bear arms for their common defence.” Tenn. Const., Art. I, § 26 (1834); Ark. Const., Art. II, § 21 (1836); Fla. Const., Art. I, § 21(1838).
Delaware had no restrictions on the peaceable carrying of arms by white persons. However, it forbade “free negroes and free mulattoes to have, own, keep, or possess any gun [or] pistol,” except that such persons could apply to a justice of the peace for a permit to possess a gun, which could be granted with a finding “that the circumstances of his case justify his keeping and using a gun . . . .” Ch. 176, § 1, 8 Laws of the State of Del. 208 (1841). The police power was said to justify restrictions such as “the prohibition of free negroes to own or have in possession fire arms . . . .” State v. Allmond, 7 Del. 612, 641 (1856).
North Carolina declared: “That the people have a right to bear arms for the defense of the state . . . .” N.C. Dec. of Rights, Art. XVII (1776). Thus, “[f]or any lawful purpose — either of business or amusement - the citizen is at perfect liberty to carry his gun.” State v. Huntley, 25 N.C. (3 Ired.) 418, 422-23 (1843). But North Carolina made it unlawful “if any free negro, mulatto, or free person of color, shall wear or carry about his or her person, or keep in his or her house, any shot gun, musket, rifle, pistol, sword, dagger or bowie-knife, unless he or she shall have obtained a licence therefor from the Court of Pleas and Quarter Sessions of his or her county . . . .” State v. Newsom, 27 N.C. 250, 207 (1844) (Act of 1840, ch. 30). The provision was upheld partly on the ground that “the free people of color cannot be considered as citizens . . . .” Id. at 254
The court further averred: “It does not deprive the free man of color of the right to carry arms about his person, but subjects it to the control of the County Court, giving them the power to say, in the exercise of a sound discretion, who, of this class of persons, shall have a right to the licence, or whether any shall.” Id. at 253.
“[T]he Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). The English Declaration of Rights recognized thirteen “true, ancient and indubitable rights,” including the following: “That the Subjects which are Protestants, may have Arms for their Defence . . . .” 1 W. & M., Sess. 2, c.2, (1689).
“By the time of the founding, the right to have arms had become fundamental for English subjects.” Heller, 554 U.S. at 593. “Americans valued the ancient right . . . even more important for self-defense and hunting” than for militia. Id. at 599.
The Massachusetts Declaration of Rights, Article 1 (1780), stated that “[a]ll men are born free and equal, and have certain natural, essential, and unalienable rights,” including “the right of enjoying and defending their lives and liberties . . . .” And it provided in Article 17: “The people have a right to keep and to bear arms for the common defence.”
In the Virginia convention, George Mason recalled that “when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised . . . to disarm the people; that it was the best and most effectual way to enslave them.” 3 Jonathon Elliot ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution 380 (1836).
South Carolina law provided that no person of color “shall, without permission in writing from the District Judge or Magistrate, be allowed to keep a fire arm . . . .” S.C. Stat., No. 4730, § XIII, 250 (1865). An African American convention resolved that “the late efforts of the Legislature of this State to pass an act to deprive us of arms be forbidden, as a plain violation of the Constitution . . . .” 2 Proceedings of the Black State Conventions, 1840-1865, 302 (1980). Senator Charles Sumner summarized the petition, noting “that they should have the constitutional protection in keeping arms, in holding public assemblies, and in complete liberty of speech and of the press.” Cong. Globe, 39th Cong., 1st Sess. 337 (1866).
Rep. William Lawrence quoted Order No. 1 (1866) for the Department of South Carolina, which declared:
The constitutional rights of all loyal and well disposed inhabitants to bear arms, will not be infringed; nevertheless this shall not be construed 20 to sanction the unlawful practice of carrying concealed weapons; nor to authorize any person to enter with arms on the premises of another without his consent.
Cong. Globe, 39th Cong., 1st Sess., 908-09 (1866).
This order was repeatedly printed in the Loyal Georgian, a black newspaper, beginning with the issue of Feb. 3, 1866, at 1. That issue also included the following:
Have colored persons a right to own and carry fire arms?
A Colored Citizen Almost every day we are asked questions similar to the above. . . .
Article II, of the amendments to the Constitution of the United States, gives the people the right to bear arms, and states that this right shall not be infringed. . . . All men, without distinction of color, have the right to keep and bear arms to defend their homes, families or themselves. Id. at 3.
Deprivation of the right to bear arms was debated in bills leading to enactment of the Freedmen’s Bureau Act and the Civil Rights Act of 1866. Rep. Thomas Eliot, sponsor of the former, explained that the bill would render void laws like that of Opelousas, Louisiana, providing that no freedman “shall be allowed to carry fire-arms” without permission of his employer and as approved by the 21 board of police. Cong. Globe, 39th Cong., 1st Sess. 517 (1866). He quoted from a report that in Kentucky “[t]he civil law prohibits the colored man from bearing arms . . . .” Id. at 657
Senator Garret Davis said that the Founding Fathers “were for every man bearing his arms about him . . . for his own defense.” Id. at 371. Yet places like Alexandria, Virginia “enforce[d] the old law against them in respect to whipping and carrying fire[1]arms . . . .” Report of the Joint Committee on Reconstruction, H.R. Rep. No. 30, 39th Cong., 1st Sess., pt. 2, at 21 (1866)
Rep. George W. Julian argued: Although the civil rights bill is now the law, . . . [it] is pronounced void by the jurists and courts of the South. Florida makes it a misdemeanor for colored men to carry weapons without a license to do so from a probate judge, and the punishment of the offense is whipping and the pillory. South Carolina has the same enactments . . . Cunning legislative devices are being invented in most of the States to restore slavery in fact.
A Mississippi court declared the Civil Rights Act void in upholding the conviction, under the 1865 Mississippi law quoted above, of a freedman for carrying a musket without a license while hunting.
New York Times, Oct. 26, 1866, at 2.
Another Mississippi court found the ban on freedmen having arms without a license void: The citizen has the right to bear arms in defense of himself, secured by the constitution. . . . Should not then, the freedmen have and enjoy the same constitutional right to bear arms in defence of themselves, that is enjoyed by the citizen? . . . While, therefore, the citizens of the State and other white persons are allowed to carry arms, the freedmen can have no adequate protection against acts of violence unless they are allowed the same privilege.
New York Times, Oct. 26, 1866, at 2.
The above judicial decisions were noted in a report from General Ulysses S. Grant stating: “The statute prohibiting the colored people from bearing arms, without a license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).
“In sum, it is clear that the Framers [of the constitution] counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.” McDonald, 561 U.S. at 777. As such, the right of a law abiding person to carry a firearm could not be dependent on the discretion of an official nor subject to license from the same.
Patsy, 457 U.S. at 504 n.6 (citing remarks of Rep. Washington Whitthorne). On the same page of his speech, Whitthorne objected that “if a police officer . . . should find a drunken negro or white man upon the streets with a loaded pistol flourishing it, & c., and by virtue of any ordinance, law, or usage, either of city or State, he takes it away, the officer may be sued, because the right to bear arms is secured by the Constitution . . . .” Cong. Globe at 337.
In sum, the Civil Rights Act of 1871 was understood to provide a remedy to persons who were deprived of the right to bear firearms. No one suggested that the right was limited to one’s house or that the state could licenses to carrying of arms.
The laws that licensed the carrying of arms and the schemes that subjected African Americans to such a discretionary licensing system were among the deprivations that prompted Congress to act and abolish by repeatedly arguing the preexisting right to keep and bear arms without a license as guaranteed in the plain text of the second amendment.
In 1892, Ida B. Wells wrote that a “Winchester rifle should have a place of honor in every black home, and it should be used for that protection which the law refuses to give.” Ida B. Wells, Southern Horrors: Lynch Law in All its Phases 16 (1892). She had in mind recent events in Jacksonville, Florida, and Paducah, Kentucky, where well-armed blacks had thwarted lynch mobs.
Perhaps not coincidently, a year later Florida made it a crime for a person “to carry around with him, or to have in his manual possession” a “Winchester rifle or other repeating rifle” without a license, which “may” be granted after posting a $100 bond with approved sureties. 1893 Fla. Laws 71-72. (In 1901, the law was amended to add pistols to the list.) That would be equivalent to $2,859 today.
The average monthly wage for farm labor in Florida in 1890 was $19.35.6 Licenses were obviously beyond the means of poor persons, not to mention the unlikelihood of them being issued to African Americans. This law “was passed when there was a great influx of negro laborers in this State,” and it was “for the purpose of disarming the negro laborers . . . . The statute was never intended to be applied to the white population . . . .” Watson v. Stone, 148 Fla. 516, 524, 4 So. 2d 700 (1941) (Buford, J., concurring). Moreover, it was estimated that “80% of the white men living in the rural sections of Florida have violated this statute,” “not more than 5% of the men in Florida who own pistols and repeating rifles have ever applied” for a license, and that “there had never been . . . any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention of the Constitution and non-enforceable if contested.”
The Jim Crow era, with its regime of legal discrimination based on race, ended with the enactment of federal civil rights legislation in the 1960s. Exercise of the right to bear arms for self-defense was essential to protect members of the civil rights movement. Laws that subjected the right to bear arms to licence issuance played a role in the history of the civil rights movement. Perhaps the most stark illustration was the denial of a carry license to Martin Luther King, Jr.
In historical perspective, Massachusetts (and other states) licensing scheme colored as law is heir to the Black Codes and Jim Crow regimes except that, instead of discriminating only against black people, in the age of pretended color-blindness in a system that too often disproportionately impacts black Americans in all aspects of life, it deprives the people at large of the right to bear arms, which is reserved to members of a privileged class determined by government officials via the issuance of licenses.
By definition a license falls within the prohibition stated in the Murdock Court as one literally has to pay a licensee fee to then have the permission to exercise what the federal constitution already grants. This license fee thus makes the right a privilege and thus transferrable. Making it an infringement on rights that are, according to the unanimous Declaration of Independence, inalienable. Henry Campbell Black's Law dictionary 4th edition, page 1067 defines a license as "Permission to do something which without the license would not be allowable. " Yet the right to bear arms, is a public and individual right; and the 2nd amendment itself allows possession thereof.
It continues to define it as "a permission ... to do some act which without such authorization would be illegal, or would be a trespass or tort; A permit or privilege to do what otherwise would be unlawful." Yet the second amendment already allows, permits and makes lawful the possession of arms. There are several states with 'constitutional carry' or permit-less carry laws. Those laws are entirely based on the fact that the second amendment already guarantees the right to keep, possess, carry and bear arms without a license. Therefore, no one needs permission, which a license is permission, to exercise said right.
In Chief of Police of Shelburne v. Moyer, the Massachusetts Court of Appeals concluded, consistent with Davis, that a statute requiring a person to have a license in order to carry a firearm did not violate the constitution because "[t]here is no right …for a private citizen to keep and bear arms and thus to require that a citizen have a license to do so is not unconstitutional."…
Clearly with the Heller court’s decision, according to the Massachusetts court of appeals, since there is an individual right to keep and bear arms, any law requiring a citizen to have a license is in fact unconstitutional.
Black's Law Dictionary also states that a license is a "privilege from the state or sovereign. " The second amendment specifies that it is a right. The supreme court has already confirmed that the second amendment codifies a preexisting natural right. Rights are clearly distinguished from privileges. So with the nature, purpose and plain text definition of a license, it is unconstitutional to license a right.
According to page 1487 of Black's Law Dictionary, under the subsection 'CONSTITUTIONAL LAW', a natural right is defined as "those which grow out of the nature of man and depend upon personality, as distinguished from such as are created by law... they are those which are plainly assured by natural law... in order to fulfill the ends to which his nature calls him." Clearly, things that are derived from nature, cannot be licensed and are not privileges from the state or sovereign. The book continues to state that "The term right, in civil society, is defined to mean that which a man is entitled to have, or to do, or to receive from others... " A privilege, by contrast is defined on page 1359 as "a peculiar advantage, exemption or immunity"; "enjoyed by a person, company, or class, beyond the common advantages of other citizens. "
But the bill of rights is free and open to all, they do not only apply to specified groups or people beyond the common advantages of other citizens. And therefore, are not privileges subject to licenses. Or as the Supreme Court in Bruen put it, "The constitutional right to bear arms in public for self-defense is not "a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees."
The act of paying for the license and then being granted the privilege to keep and bear arms under the name possession, is the exact opposite of inalienable. According to Henry Campbell Black’s Law dictionary 4th edition, page 903, inalienable is defined as " ...those things which cannot be bought or sold or transferred from one person to another..." By licensing the right, and converting the possession of a firearm it into a crime if one does not have a license, it is thus converted in to a privilege; and by charging a fee, that privilege is then being bought and transferred from government officials to the people, i.e., person to person, in violation of the federal constitution and republican principles.
The Supreme Court also said "[a]cross constitutional rights, the courts have consistently forbidden the use of special fees and taxes on constitutionally protected conduct to generate general revenue."
It is clear that the license scheme generates revenue, by both the application process and litigation in courts, i.e. fines, court fees and prison or jail time.
The Supreme court also stated that "It could hardly be denied that a tax laid specifically on the exercise of those freedoms would be unconstitutional. Yet the license tax imposed by this ordinance is, in substance, just that. "
A license tax according to page 1069 of Henry Campbell Black's Law dictionary 4th edition is a "Charge or fee imposed primarily for... the protection of the safety of the public, or the regulation of relative rights, privileges or duties... " This is clearly what the statutory licensing scheme is designed to do and according to the supreme court, it is clearly unconstitutional.
The same dictionary on page 1070 continues to state that a license tax is "in the exercise of the ordinary police power of the state", clearly the statutes imposed on me in this case are imposed by police power, as I would have to have gotten the permission from them. The Murdock Court also explained that the bill of rights exists apart from state authority. The amendments are guaranteed to the people by the Federal Constitution and since they are, they cannot be subject to a license, a fee, a license fee, a license tax or criminal liability.
The Murdock Court made it plain: A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution ... a person cannot be compelled "to purchase, through a license fee or a license tax, the privilege freely granted by the constitution. 11 Blue Island v. Kozul, 379 Ill. 511,519, 41 N.E.2d 515.
There is also reference to a case in Tennessee in 1833. The state's highest court offered its interpretation of the right to bear arms. See Simpson v. State, 13 Tenn. (5 Yer.) 356 (1833), cited in Heller, 554 U.S. at 585 n.9.
After Simpson was convicted of disturbing the peace by appearing armed in public, which in essence these are the nature of the allegations made against me under the guise of "unlicensed possession", codified in statutes under the guise of "public safety"; Simpson faulted the indictment for failing clearly to require proof of actual violence. Id. at 357- 58. The high court agreed, because---even assuming that colonial law did not require proof of actual violence to punish colonists for walking with weapons-the Tennessee "constitution ha[d] completely abrogated it." Id. at 360. No such prohibition could survive the state constitution's grant of "an express power ... secured to all the free citizens of the state to keep and bear arms for their defence, without any qualification whatever as to their kind or nature." Id. Absent an act of violence, then, Simpson's indictment for merely carrying firearms could allege no crime tolerable to the constitution of Tennessee.
The courts in their historical analysis, which I provided to this court, did not solely rely on this one reference regarding the historical context of the second amendment. But in every case referenced, there was never any mention of the need of a license, nor punishment and or criminal liability for not having a license. This is because, by definition, according to Henry Campbell Black's Law Dictionary 4th edition, page 1070 a license is 'permission' and just as referenced in Bruen and Young, only slaves needed permission from their masters to keep and bear arms.
This fact is pointed out in the United States Supreme Court Case McDonald v. City of Chicago, 561 U.S. 742 (2010). The court stated the following: "Many legislatures amended their laws prohibiting slaves from carrying firearms to apply the prohibition to free blacks as well. Footnote 18 "Black Code, ch. 33, §19, 1806 La. Acts pp. 160, 162 (prohibiting slaves from using firearms unless they were authorized by their master to hunt within the boundaries of his plantation); Act of Dec. 18, 1819, 1819 S. C. Acts pp. 29, 31 (same); An Act Concerning Slaves, §6, 1840 Tex. Laws pp. 42-43 (making it unlawful for "any slave to own firearms of any description").
In 1832, James Kent, sometimes called the "American Blackstone", was a respected New York legislator and legal scholar. Wrote that "in most of the United States, there is a distinction in respect to political privileges, between free white persons and free colored persons of African blood; and in no part of the country do the latter, in point of fact, participate equally with the whites, in the exercise of civil and political rights." Although Black Codes existed before the Civil War and many Northern states had them, it was the Southern U.S. states that codified such laws in everyday practice. The best known of them were passed in 1865 and 1866 by Southern states, after the Civil War, in order to restrict African Americans' freedom, and to compel them to work for low or no wages. The goal was to suppress the influence of free blacks (particularly after slave rebellions) because of their potential influence on slaves. Restrictions included prohibiting them from voting, bearing arms, gathering in groups for worship, and learning to read and write.
Some states explicitly curtailed Black people's right to bear arms, justifying these laws with claims of imminent insurrection. In Mississippi and Alabama, these laws were enforced through the creation of special militias.
Florida's Black Codes passed in 1866 rivaled those of Mississippi and South Carolina in severity. Advised by the Florida governor and attorney general as well as by the Freedmen's Bureau that it could not constitutionally revoke Black people's right to bear arms, the Florida legislature refused to repeal this part of the codes.
Between 1687 and 1865, Virginia enacted more than 130 slave statutes, among which were seven major slave codes, with some containing more than fifty provisions. See
- Palmer, Vernon Valentine (April 2006). "The Customs of Slavery: The War Without Arms". American Journal of Legal History. 2 (48): 177-218. doi:10.2307/25434791. JSTOR 25434791
It is a historical fact that many of these "Black Codes" also known as "The Christian Black Codes" also known as "Codes Noir" also known as "Slave Codes", not only forced all denationalized Moors called Black, into the Roman Catholic religion, but they also had language that specified that "We forbid slaves to carry offensive weapons or heavy sticks under the penalty of being whipped, and of having said weapons confiscated for the benefit of the person seizing the same. An exception is made in favor of those slaves who are hunting or are shooting for their masters, and who carry with them a written permission to that effect, or are being designated by some known mark or badge. "
These same provisions are mentioned in the Massachusetts statute regarding hunting and carrying written permission, which clearly is the license given by the state who is acting as if I am a slave and it is my master. The Massachusetts statute also mentions law enforcement as being exempt from punishment. The statue clearly exempts police from being required to have a license, as, just like the Slave Laws, they are marked by a badge. Also see Ellis Paxson Oberholtzer, A History of the United States since the Civil War(1917) 1:128-129. Quote: "Negroes must not carry knives or firearms unless they were licensed so to do. It was an offence, to be punished by a fine of $50 and imprisonment for thirty days, to give or sell intoxicating liquors to a negro. When negroes could not pay the fines and costs after legal proceedings, they were to be hired at public outcry by the sheriff to the lowest bidder"
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. YOUNG v. STATE OF HAWAII. No. 12-17808. D.C. No. 1:12-cv-00336-HG-BM. …the Black Codes which sought to suppress the ability of freedmen to own guns following the Civil War, there may be reason to question whether similarly illicit goals may have inspired arms restrictions… In sum, the history extensively canvassed above leads to a straightforward conclusion: Beginning in England and throughout the development of the early American Republic, individuals maintained the general right to carry common firearms openly for their own self-defense in public, provided that they did not do so in a way that would “terrorize” their fellow citizens or intrude upon particularly sensitive places like churches or schools… the manner of open public carry has at times been regulated (by laws criminalizing the carry of especially dangerous or unusual weapons with the intent or effect of “terrorizing the people,” surety laws, laws restricting carry in particularly sensitive public places, and the like), and that such narrow regulations have at times been upheld or otherwise left unchallenged… The Second Amendment’s text, history, and structure, and the Supreme Court’s reasoning in Heller, all point squarely to the same conclusion: Armed self-defense in public is at the very core of the Second Amendment right. At the risk of repeating myself (though it does, apparently, bear repeating), the Second Amendment safeguards both the right to keep a firearm and the right to bear—or to carry—that firearm. Neither the text of the Amendment nor its historical interpretations suggests that either right has priority over the other. The obvious inference one should draw is that there is no pecking order between the “core” status of the Amendment’s expressly enumerated guarantees.16 The right to armed self-defense—both by keeping a gun at home and by carrying one elsewhere—lies at the heart of the Second Amendment… Finally, Heller’s historical methodology leads us to the legislative scene following the Civil War. See 554 U.S. at 614–16. Particularly relevant in this period are the efforts of many Southern states to disarm freedmen by adopting Black Codes. 8 For it was universally understood—by these odious laws’ proponents and opponents alike—that the debates over the Black Codes were debates over freedmen’s fundamental constitutional rights. On the one side, “[t]hose who opposed these injustices frequently stated that they infringed blacks’ constitutional right to keep and bear arms.” Heller, 554 U.S. at 614; see also Clayton E. Cramer, The Racist Roots of Gun Control, 4 Kan. J.L. & Pub. Pol’y 17, 20 (Winter 1995) (“The various Black Codes adopted after the Civil War required blacks to obtain a license before carrying or possessing firearms . . . .
The Federal Law specifies that the age of militia service is 17 years old. Therefore, the alleged minor was well within his federally protected right to be part of a militia that bears arms.
In addition, since the Bruen decision, the licensing scheme that I am allegedly to have violated, was at the time of my arrest unconstitutional and thus null and void. To sever the unconstitutional provisions, is retroactively applying the newly amended law to the date of July 3rd 2021, making it an ex post facto law. Which is unconstitutional. It cannot be amendment and then applied to me after the fact. It, at the time of July 3rd ,2021, before it was amended, was unconstitutional therefore it creates no burden or liability on me as it must be considered null, void, unenforceable and unconstitutional at the time of my arrest. Massachusetts statute requires non-residents, which I am, to apply for a license after showing good cause. I am now being punished for not having a license in violation of a statute that has declared unconstitutional.