Georgia Law

Discussion in 'GA Laws and Politics' started by Malum Prohibitum, Nov 29, 2005.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Well, too bad these guys are not still the Supreme Court of Georgia today . . .

    The right of the whole people, young and old, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained, the rearing up and qualifying a well-regulated militia, so vitally necessary to a free state.

    Nunn v. State, 1 Kelly 243 (Ga. 1846)


    They did allow the legislature to regulate concealed carry, but held that open carry was off-limits. This was before race became the significant factor in Georgia's firearms laws.
     

  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    They did not mention girls . . .
     
  3. Gunstar1

    Gunstar1 Administrator

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    Has there been any case where someone charged with open carry cited this judgement?

    I would love to see how that SC caselaw was overcome.
     
  4. ber950

    ber950 Active Member

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    Memory

    If memory serves me correctly the State Constitution has been changed since that ruling.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The Second Amendment has not changed.

    From the opinion:

    The language of the second amendment is broad enough to embrace both Federal and State governments--nor is there anything in its terms which restricts its meaning. . . . does it follow that because the people refused to delegate to the general government the power to take from them the right to keep and bear arms, that they designed to rest it in the State governments? Is this a right reserved to the States or to themselves? Is it not an unalienable right, which lies at the bottom of every free government? We do not believe that, because the people withheld this arbitrary power of disfranchisement from Congress, they ever intended to confer it on the local legislatures. This right is too dear to be confided to a republican legislature.

    . . .

    If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence?
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    So it was not in fact decided under the state Constitution. The court reviewed a lot of other state cases involving their state constitutional provisions, then wrote:

    It is true, that these adjudications are all made on clauses in the State Constitutions; but these instruments confer no new rights on the people which did not belong to them before. When, I would ask, did any legislative body in the Union have the right to deny to its citizens the privilege of keeping and bearing arms in defence of themselves and their country?

    The court then turned to the history of the right, pre-dating the existence of this country and finally preserved in the Second Amendment, which they say only "reiterated a truth," rather than granting a right.

    I could not find a mention of the state constitution in this case. It appears to have been rather beside the point.
     
  7. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    The reason is because no such state constitutional provision existed at the time. So, on the point of the State Constitution changing, it would appear that you are quite correct. The decision is all the more interesting in that there was no state constitutional right to bear arms in 1846.

    From a 1911 case:

    The provision in reference to bearing arms appeared in the Constitution of 1861. It was again incorporated in the Constitution of 1865 and that of 1868. In the latter the same language was used as in the Constitution of 1877, except that it contained the preamble: "A well regulated militia being necessary to the security of a free people." In the Constitution of 1877, these words were not employed in that immediate connection, but were used in article 10, § 1, par. 1, treating of the militia;


    And from the same case, on the Nunn decision:

    As at that time there was no provision on the subject in the state Constitution, and the only constitutional declaration quoted was from the second amendment to the federal Constitution, it is clear that the court took the view that such amendment was a restriction upon the Legislature of the state, as well as upon Congress, and what was said was in reference to the federal Constitution. The opinion contains some broad language used in discussion; but evidently it was never intended to hold that men, women, and children had some inherent right to keep and carry arms or weapons of every description, which could not be infringed by the Legislature, unless as a result of the constitutional provision under consideration. Since that time the Supreme Court of the United States, whose construction of the federal Constitution is conclusive, has held that the second amendment to that instrument was a restriction upon the power of Congress only. In United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588, it was said: "The second amendment means no more than that it [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government. Sovereignty, for the protection of the rights of life and personal liberty within the respective states, rests alone with the states." Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615; Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97.
     
  8. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    From the same 1911 case:

    Surely no one will contend that children have a constitutional right to go to school with revolvers strapped around them, or that men and women have a right to go to church, or sit in the courtrooms, or crowd around election precincts, armed like desparadoes, and that this is beyond the power of the Legislature to prevent.

    :roll:
     
  9. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Today, the Georgia standard is:

    " . . . 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."

    Wow, no wiggle room there. :roll:

    The same case, citing to Nunn v. State in support of banning short barreled shotguns:

    It was not arbitrary or unreasonable to prohibit the keeping and carrying of sawed-off shotguns, which are of a size such as can easily be concealed and which are adapted to and commonly used for criminal purposes. The Act does not prohibit the bearing of All arms. Even the Nunn case, 1 Ga. 243, supra, held that a law is unconstitutional "so far as it cuts off the exercise of the right of the citizen Altogether to bear arms . . ."



    So, if they leave anything, our state constitutional right is not violated, or did I misread it? How is this a right again? :?
     
  10. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    It is not arbitrary or unreasonable to ban "assault weapons" capable of firing more than one shot without reloading. It is neither arbitrary nor unreasonable to ban weapons of over .22 caliber (or airguns) . . .

    You can see where that kind of fuzzy-headed constitutional reasoning lands your precious "right."

    It is neither arbitrary nor unreasonable to prohibit criticizing the actions of our beloved government outside of ones home, with the doors shut and the blinds drawn, and no children within listening distance.

    What can this even mean except the whimsical notion of the judicial author?
     
  11. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Bump.

    Just some good reading for new members . . .
     
  12. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Bump again! We've had a lot of new members recently that might enjoy reading the way it used to be in Georgia.
     
  13. viper32cm

    viper32cm New Member

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  14. Whasat

    Whasat New Member

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    Just found this for the first time, some good reading.
     
  15. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Ah, good! Somebody is reading my posts! :D
     
  16. Whasat

    Whasat New Member

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    Eh, we had tried the approach that if we didn't read them, you'd eventually stop....but at this 17,000+ post mark its obvious we're not gonna win this one.....
     
  17. fallison

    fallison New Member

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    Thanks for the bump.
     
  18. wsweeks2

    wsweeks2 New Member

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    Very interesting. Funny how times change. I guess people back in the day didn't care about "the children." :roll: