GA Constitution Paragraphs 7 and 8 apear to be in conflict

Discussion in 'GA Laws and Politics' started by Wiley, Jan 12, 2006.

  1. Wiley

    Wiley New Member

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    These paragaphs apear to be in conflict. How can the General Assembly carry out its Constitutional duty to protect the residents of this State, in the full enjoyment of the rights, privileges and immunites, by infringing on the right to keep and bear arms?

    Not withstanding the underpinnings of prohibitions on being armed are racist, it would appear that either Paragrah VIII or the General Assembly must be removed.

    I favor the latter.
     
  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Wiley, as to Article I, Section I, Paragraph VIII, there is a simpler solution, if you are the government. That is, you simply have the highest court in the State declare that the right contained in that paragraph is "not absolute," that it is subject to "reasonable regulation," and then proceed to find that every regulation actually enacted is, indeed, "reasonable," whenever it is brought before the court.

    'Nuff said?
     

  3. Wiley

    Wiley New Member

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    Well, no.

    I wonder if you could provide two things: a citation and a link to a free online (or 'have to go to') law library. Or point me in a direction to find them.

    What I got from the GSC site was that up until the mid-1830's there was no formal SC, the period from the 1830's to the 1840's there were just the Superior Court Judges in semi-formal meetings. Each Judge was a law unto himself. The GSC was established by the Geneal Assembly sometime in the mid-1840's.

    The question I want to research is: When did the 'reasonable restriction' decision come about and who ruled. Was it by one Superior Court Judge, by some Superior Court Judges in semi-formal meetings, or by a legally constituted Supreme Court. And how did 'borne' get morphed into restictions that are anything but reasonable.

    (Also, should this be moved to a separate thread, done by email or PM or left here?)
     
  4. seajay

    seajay Active Member

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    That may all change soon. Since Alito believs that Congress had no right to restrict the purchase of fully automatic weapons the SCOTUS may be swinging the way it is supposed to.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Seajay, that is the US Supreme Court. We'll see. I don't think Alito has ever spoken on the Second Amendment. THe "machine gun" case was a Commerce Clause case. Alito's dissent did not mention the Second Amendment. If I had to guess, I think the Supreme Court will rule that the Second Amendment is an individual right, as that is not really a hard call for anybody who is intellectually honest, even for those who disapprove of owning, shooting, or carrying firearms. The harder call is going to be what is the scope of that right? I imagine the answer to that question will not be a lot different from what it is now. A few places, like DC, NYC, and San Fransisco, may be slightly affected, but I do not believe much will change in Georgia or at the federal level generally. THe Supreme Court has previously upheldvarious gun control acts (including the NFA) and, in upholding federal restrictions on felons possessing arms had this footnote:

    United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8),cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972) (the latter three cases holding, respectively, that § 1202(a)(1), § 922(g), and § 922(a)(6) do not violate the Second Amendment).

    cited with approval. I am aware of no Circuit court of appeal that has struck down a federal firearms law on Second Amendment grounds. There is no US Supreme COurt case striking down a federal gin control law on Second Amendment grounds (U.S. v. Lopez was a Commerce Clause case that is now highly in doubt given the last commerce clause decision - relating to marijuana). Even U.S. v. Emerson, raved about in all the gun magazines, did exaclty that about which I am warning. It found an individual right, but notice that the federal gin contral act in question was upheld as not violating that right. And so it goes.

    My suspicion is that the "individual right" will be declared but the scope of the right will not be delineated. Then, over decades, perhaps a century, it will slowly be defined as right about where we are today, with each successive challenge being denied. Each existing federal gun control law will be held not to violate the right.

    Just a guess.
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Wiley, there was no constitutional right to keep and bear arms in Georgia until about the 1870s. Nunn v. State had declared earlier in the century (1840s?) that the US Second Amendment was binding upon the state of Georgia, at least in regard to open carry.

    I do not recall when the permitting system was put into place, but I think it was the late nineteenth century. The "reasonable regulation" case law was put into place not long afterward, in the early 1900s at the latest. It is complete with lots of statements about the evil scourge of weapons in civilized society and the like. Really bad stuff.

    I will try to give citations in about two weeks if you remind me (no time right now - trial next week).

    Your local library, college and university libraries, and Findlaw on the internet will have the entire case to read.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    OK, WIley, for a history going back to 1328 A.D., see Strickland v. State, 137 Ga. 1 (1911).

    It mentions Nunn v. State (I mentioned above) and its eradication when the US Supreme Court held in US v. Cruikshank in that the Second Amendment is a limitation on the federal government only and not upon the states.

    Anyway, they said:

    "[T]he right to bear arms, like other rights of person and property, is to be construed in connection with the general police power of the State, and as subject to legitimate regulation thereunder. Where a State constitution in terms provides, in connection with the right to bear arms, that the State may regulate this right, or may regulate the manner of bearing arms, these words expressly recognize the police power in direct connection with the constitutional declaration as to the right."
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    They further said that the question in each case should be:

    "whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts to a deprivation of the constitutional right."

    Strickland, supra, 137 Ga. p. 7, 72 S.E. p. 263.
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    And the same year we have this example of deep legal reasoning:

    So far as the writer of this opinion is concerned, he is decidedly of the opinion that the possession of a pistol or revolver about the person, either by a minor or an adult, concealed or open, is a menace to individual safety and to law and order, and he concurs strongly in the view of those able jurists who construe the constitutional provision above quoted as not applicable to the modern pistol or revolver. The framers of the federal Constitution and of the state Constitution did not have this weapon in contemplation as one of the constitutional rights of the citizen. This constitutional provision, rationally construed, applies only to such "arms" as could be used by the army or the militia in the preservation of public order. It is incredible that any lawmaking body, cognizant of the evils of having about the person a pistol or revolver, would have intended to preserve such evil by a constitutional provision. The ordinary pistol or revolver, usually carried in the hip pocket, is not a weapon of defense. It is a weapon of offense. The pistol is, in the opinion of the writer, the most offensive weapon ever devised by the ingenuity of man for the destruction of life and the peace of society. The people in their sovereign capacity have the right to prohibit absolutely this evil, and the individual member of society cannot claim it as one of the inalienable constitutional privileges of personal liberty. In a free country, no man has any personal right that is not subservient to the public weal. "Salus populi suprema lex" is a rule of unlimited application, and qualifies every personal right of the citizen.


    Glenn v. State, 10 Ga.App. 128, 72 S.E. 927 (1911) (emphasis added). :shock: :shock: :shock: :cry:
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Earlier cases had done the same thing:

    "It is to secure the existence of a well-regulated militia, . . . and I have always been at a loss to follow the line of thought that extends the guaranty to the right to carry pistols, dirks, bowie knives, and those other weapons of like character, which, as all admit, are the greatest nuisances of our day. It is in my judgment a perversion of the meaning of the word 'arms,' as used in the phrase 'the right to keep and bear arms,' to treat it as including weapons of this character."

    Hill v. State, 53 Ga. 472 (1874)
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    In Hill v. State, the judge was expressing his distate a mere six years after the constitutional provision had been adopted (1868 - I was in the wrong decade going off memory).

    He went on:

    " . . . pocket-pistols, dirks, sword-canes, toothpicks, Bowie-knives, and a host of other relics of past barbarism, or inventions of modern savagery of like character. In what manner the right to keep and bear these pests of society, can encourage or secure the existence of a militia, and especially of a well regulated militia, I am not able to divine."
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    We do, however get a slight admission from the judge later that he is just spouting off and not really getting to what the drafters meant when he writes:

    "But assuming that the guarantee of our state constitution was intended to include weapons of this character, (which, considering that it was made a part of the constitution after the decision of Nunn vs. The State, in 1 Kelly, is not improbable,) . . ."

    It is pretty interesting that he spent so much time demonizing the very kind of weapons that were so popular at the time this constitutional provision was adopted (1868). Anyway, he then upholds the ban on carrying weapons to polling places, churches, courts, and other places, which is even more offensive to him. Rejecting the argument that this offense is malum prohibitum in nature, he argues violation of the statute:

    " . . . is a thing so improper in itself, so shocking to all sense of propriety, so wholly useless and full of evil, that it would be strange if the framers of the constitution have used words broad enough to give it a constitutional guarantee."
     
  13. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    He also calls bearing arms at such places a "marked breach of good manners." Well, there is a constitutionality test for you!

    Anyway, where does this provision protect this right? Where can you carry? In his opinion:

    "But it is obvious that the right to bear or carry arms about the persons at all times and places and under all circumstances, is not a necessity for the declared object of the guarantee; nay, that it does not even tend to secure the great purpose sought for, to-wit: that the people shall be familiar with the use of arms and capable from their habits of life, of becoming efficient militiamen. If the general right to carry and to use them exist; if they may at pleasure be borne and used in the fields, and in the woods, on the highways and bye-ways, at home and abroad, the whole declared purpose of the provision is fulfilled. "


    And how to carry them?

    "Skill and familiarity in the use of arms was the thing sought for. The right to "tote" them, as our colored people say [no flames please, I am just the messenger, this is the sort of thing one must understand as to why we have a licensing system in the south MP], would be a bootless privilege, fitting one, perhaps, for playing soldier upon a drill ground, but offering no aid in that knowledge which makes an effective, to-wit: a shooting soldier. To acquire this skill and this familiarity, the words "bear arms" must include the right to load them and shoot them and use them as such things are ordinarily used, so that the "people" will be fitted for defending the state when its needs demand; and when the constitution grants to the general assembly the right to prescribe the manner in which arms may be borne, it grants the power to regulate the whole subject of using arms, provided the regulation does not infringe that use of them which is necessary to fit the owner of them for a ready and skillful use of them as a militiaman. Any restriction which interferes with this is void, whether it relates to the carrying them about the person, or to the place or time of bearing them.
    The manner of bearing arms includes not only the particular way they may be carried upon the person, that is openly or secretly, on the shoulder or in the hand, loaded or unloaded, cocked or uncocked, capped or uncapped, but it includes, also, the time when, and the place where, they may be borne. It is no reply to this view of the subject to say that if the legislature may do this, they may, in effect, prohibit the carrying them altogether. The same reply may be made to the admitted right to prescribe the manner of carrying arms upon the person. If the legislature were to say arms shall not be borne on the shoulder, nor in the hands, or on the arms, but they shall only be borne strapped or fastened upon the back, this would be prescribing only the manner, and yet, it would, in effect, be a denial of the right to bear arms altogether. The main clause and the limitation to it are both to be construed reasonably, and in view of the declared object of the provision. Any act would violate it that militated against the purpose, and no act is in violation of it that leaves the citizen the right to keep arms, and so to carry and use them as will render him familiar with their use, so as that he will be prepared for public service as a militiaman when needed. Within their limits, the legislature may prescribe the manner of bearing arms, including in this manner the mode in which they shall be carried upon the person, and the time, place and circumstances in which they may be borne."

    . . .

    " . . . the legislature may prescribe, not only that they shall be borne openly and plainly exposed to view, but that it may prohibit the bearing at such times and places, and under such circumstances, as is necessary for the preservation of the peace, the protection of the person and property of the citizens, and the fulfillment of the other constitutional duties of the legislature, provided the restriction does not interfere with the ordinary bearing and using arms, so that the "people" shall become familiar with the use of them."


    :shock:
     
  14. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Wiley, I hope that is kind of what you are looking for, or at least gets you started on the right foot.
     
  15. Wiley

    Wiley New Member

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    Thank you, thank you, THANK YOU!

    That gives me a lot to go on. Maybe more than I can handle but we'll see.

    I have waided thru Nunn v. State twice and am getting a glimmering of understanding (and more than a glimmering of a headache) of the underlying reasoning. Guncite has a transcript of the decision.

    What I thought would be interesting is a time line of the Ga. Constitution, Ga. Legislation and Ga. Court decisions (Superior and, when established, Supreme). I may be the only one interested but knowing how we got from an uninfringed Right to a very infringed privilege gives insight on how to unwind it all.

    Thanks again! I'll try not to bother you with many first year law student questions.
     
  16. ICP_Juggalo

    ICP_Juggalo Active Member

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    Sounds like these past rulings are one of an emotional sense and not a legal one. It's nice to see a judge putting their own personal feelings ahead of the constitution :roll:
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Wiley, the dates are on each of the citations, above, in parentheses at the end. The Georgia constitutional provision was adopted in 1868 (three years after the Civil War). This preceded the US v. Cruikshank decision by the United States Supreme Court by seven years (Cruikshank is the case that held that the federal Second Amendment was no limit on the states but only the federal government).

    As a footnote, Cruikshank predated the modern doctrine of the Fourteenth Amendment incorporating the Bill of Rights, so it is doubtful that Cruikshank is still good law. It is pretty readily accepted nowadays that, for example, the constitutional right to counsel is binding against the states, as is the Fourth Amendment right to be free from unreasonable searches and seizures. There is no reason why the Second Amendment would not be held to also bind the states, which was the early understanding anyway (see Nunn v. State, which you already read twice). Moreover, there is direct Congressional testimony on the issue of southern states denying blacks the right to keep and bear arms as one of the justifications for passage of the 14th Am.

    Anyway, since it predated the Cruikshank decision, I do not know what was the justification for adoption of Georgia's constitutional right to keep and bear arms in 1868, but I bet an enterprising, motivated person with a little time on his hands could find out! I do not have a ready source for legislative history from the mid-1800s, but I would be shocked if some of the law school libraries around do not have it.

    Some of the court cases from the time may discuss it. Look at the citations in the opinions for other cases on the same subject.

    Are you a first year law student?
     
  18. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    You mean like the majority of the Supreme Court today, or are you talking about the cases above? :lol:
     
  19. Wiley

    Wiley New Member

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    Nope. I'm doing this for fun :shock: and interest. In the real world I'm a retired computer programmer/analyst.

    The first year law student comment came from my realization that I didn't even know what questions to ask, how to begin finding what I thought I wanted, and how to interperet the citations.

    The 'Nunn v. State' reference alone gave me something to look for (a search for 'Supreme court decisions' was a bust) and lead to Guncite and that lead to looking for a 'Legal Manual of Style' and on....

    I kinka take the Constitution and Law seriously. What's written is important and how it came to be written is important. Precident!

    ICP_Juggalo: I can understand the Judges feelings but, I agree with you. Emotion should not color the law. I carry for two reasons: To exercise my right so that I will always be able to and; So that if I need it a means of defense will be available. The former I am happy to do, the latter I am sorry I feel the need.

    Later all.

    John

    P.S. I asked that all this be moved to a separate thread as it was taking the original thread way off topic.
     
  20. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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