(The following is the research done for a Gun Rights event here in Arizona. The whole goal was to paper the record with this research as a reference for Civil and Criminal cases in the future. Did it work?... gun owners can carry concealed or open without fear of arrest in Arizona - Oh... and this is important to us... they keep changing State Constitutions and not letting future generations know it http://www.freedomsphoenix.com/Article/104475-2012-02-02-arizona-state-constitution-pdf-of-original-document.htm?EdNo=001&From=)
(Publisher: This lawsuit against the State of Arizona is what prompted the following article to be published in the Arizona Republic Newspaper and the New York Times coverage of the issue)
Arizona Republic June 2002
New York Times
Gun Owners Take Their Concerns to Court
5739 N. 11TH WAY
PHOENIX, AZ. 85014
SUPREME COURT OF THE STATE OF ARIZONA
MARK KILLIAN ?" Director, CASE NO. CV-02-0161-SA
Arizona Department of Revenue
SPECIAL ACTION PETITION
ELLIOT HIBBS ?" Director,
Arizona Department of Administration
JANE HULL ?" Governor of
The State of Arizona
1. That, as provided in Rule 3 of the Rules of Procedure for Special Actions and Article 5 Section 5 Clause 1 of the Arizona State Constitution. The Respondents have blatantly and severely violated the Enabling Act of June 20th 1910, the clear language of the Arizona State Constitution and its original intent and the United States Constitution and will continue to do so without direct intervention of this court.
2. On Wednesday May 8th, 2002 at 12:30pm the petitioner entered the Arizona State Department of Revenue, a public building, to conduct required business (see attached declaration of Ernest Hancock appendix page 1.
3. The petitioner was refused access to this public building because he was in possession of his firearm. (Hancock Declaration app. pg. 1)
4. Petitioner had right to access to the Arizona State Department of Revenue, a public building to conduct business therein. Respondent had a duty to permit petitioner's access without discretion.
5. Not withstanding Petitioner's right to access to the public building and the respondent's duty to grant access the respondent did knowingly, willfully and unlawfully refuse petitioner's access to said building solely because he was in possession of his firearm.
6. That said refusal to allow Petitioner access to said building, knowingly impaired the Petitioner's right to bear arms in defense of himself. This violated the Enabling Act of June 20th, 1910 Article II Sections 1, 2, 3, 26 & 32 of the Arizona State Constitution and the 2nd Amendment to the United States Constitution as cited below.
7. This court should take jurisdiction as it involves an issue of statewide concern. It will ultimately require this Court to resolve the inconsistencies that have occurred with many agencies at the state, county and local level in implementing the provisions of the Arizona State Constitution with respect to the carrying and possession of firearms in the State of Arizona. Prompt resolution of the issue at this stage would better serve the interests of the citizens of this state.
8. As a condition of statehood the Arizona Constitution was required to be constructed in a manner that would prevent the Arizona government from infringing on the individual right of people in the State of Arizona to bear arms in defense of themselves. And for the government of Arizona to be the defender of that individual right, and certainly not destructive of it. The Enabling Act requires that in the new state of Arizona, "The constitution shall be republican in form and make no distinction in civil or political rights on account of race or color, and shall not be repugnant to the Constitution of the united States and the principles of the Declaration of Independence." (ENABLING ACT June 20th, 1910, c. 310, 36 U.S. Stat. 557, 568-579 Section 20, paragraph 1)
9. The Enabling Act that allowed the creation of the State of Arizona made it very clear that the Arizona State Constitution was not to be inconsistent with the words of the Declaration of Independence. The conditions and justification of the existence of an Arizona State government is based on Arizona's Constitution not being repugnant to the Declaration of Independence's claim that the only justification for the existence of a government is to secure the individual rights of a free people, not take them away.
10. The Enabling Act required the Arizona State Constitution not be repugnant to the Declaration of Independence. The Declaration of Independence holds that the purpose of government is to secure our rights. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
11. Arizona's Constitution meets the conditions set forth by the Enabling Act very well. Arizona's Declaration of Rights makes it very clear that the foundation upon which the government in Arizona is built is the preservation of individual rights. To abandon this function is to abandon the justification of the existence of the government in the State of Arizona, since it would no longer serve the function for which it was created.
Arizona State Constitutional citations:
Article II ?" Declaration of Rights
1. Fundamental principles; recurrence to
Section 1. A frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.
2. Political power; purpose of government
Section 2. All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.
3. Supreme law of the land
Section 3. The Constitution of the United States is the supreme law of the land.
26 Bearing arms
Section 26. The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.
32 Constitutional provisions mandatory
Section 32. The provisions of this Constitution are mandatory, unless by express words they are declared to be otherwise.
12. United States Constitution 2nd Amendment: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
WHEREFORE: Petitioner respectfully request that this court:
A) Accept jurisdiction of this Special Action.
B) Order all agencies of the State Government to cease all attempts to disarm the Petitioner as a condition for entering state owned public buildings.
C) Award Petitioner court cost and fees incurred for the prosecution of this action. And such other and further relief deemed just and proper by this court..
Respectfully submitted this 14th day of May, 2002, by:
5739 N. 11th Way
Phoenix, Az. 85014
A P P E N D I X
DECLARATION OF ERNEST HANCOCK
I, Ernest Hancock, am the Petitioner in the above captioned action.
On May 8th, 2002 I, Ernest Hancock, attempted to enter the Arizona Department of Revenue to conduct business and was denied entry due to the fact that I was in possession of a firearm for my self-defense.
I, Ernest Hancock, declare, under penalty of perjury that the foregoing is true and correct.
Date executed ____05-14-02_____ ______________________________
5739 N 11th Way
Phoenix, Az. 85014
RESPONSE TO PETITION FOR SPECIAL ACTION
TABLE OF CONTENTS
Table of Authorities ii
Certificate of Service 20
TABLE OF AUTHORITIES
Thomas Jefferson 4
James Madison 4
Sir William Blackstone 5
Saint George Tucker 6
Mann v City of Tucson 7
Ziskus v Symington 7
South v Maryland 8
Warren v District of Columbia 9
Riss v City of New York 9
Article 2, Section 26 Arizona Constitution 11
John S. Goff 11, 16
Dano v Collins 12
US v Miller 13
Federalist 29 14, 19
Federalist 46 14, 19
Scott v Sanford 14
Thomas Cooley 17
William Rawle 17
Cesare Beccaria 18
William Grayson 18
Tenche Cox 18,19
Samuel Adams 19
Noah Webster 19
Alexander Hamilton Federalist #28, 29 19
Thomas Jefferson offered this wise advice to constitutional scholars, laymen, judges, and lawyers:
"On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debate, and instead of trying what meaning may be squeezed out of the text, or invested against it, conform to the probable one in which it was passed." [Letter to Justice William Johnson, June 12, 1821]
Petitioner will show that not only has Respondent and it predecessors ignored the tenants of the Constitution, it has ignored the words of the law, case law, and the Framers of Arizona's Constitution and that early Supreme Courts have allowed it to happen.
And this from James Madison:
"It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood." Federalist #62
The Respondents have wisely not gone so far as to state that the Supreme Court cannot take jurisdiction. It is Petitioners position that not only is there no other controlling authority stating that the Supreme Court cannot take jurisdiction, but also any refusal to take jurisdiction would be a clear indication that the Supreme Court lacks the willingness and ability to defend the individual rights of Arizona Citizens as well as defend the very document that justifies the Court's existence.
I. Respondent misrepresents the classical American right to keep and bear arms as one that is merely, "not an absolute right" under the common law. In the paragraphs below, we will allow Sir William Blackstone to help us peer into the history of the right of English Subjects to keep and bear arms and then follow that with Saint George Tucker "The American Blackstone" as the right evolves in pre and post Revolutionary America.
Blackstone on Arms for Self Defense.
"The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W.& M. st. 2, c.2, and it is indeed a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. In these several articles consist the rights, or, as they are frequently termed, the liberties of Englishmen: liberties, more generally talked of than thoroughly understood; and yet highly necessary to be perfectly known and considered by every man of rank or property, lest his ignorance of the points whereon they are founded should hurry him into faction and licentiousness on the one hand, or a pusillanimous indifference and criminal submission on the other. And we have seen that these rights consist, primarily, in the free enjoyment of personal security, of personal liberty, and of private property. So long as these remain inviolate, the subject is perfectly free; for every species of compulsive tyranny and oppression must act in opposition to one or other of these rights, having no other object upon which it can possibly be employed. To preserve these from violation, it is necessary that the constitution of parliament be supported in full vigour; and limits, certainly known, be set to the royal prerogative. [W. Blackstone, Commentaries on the Law of England, 143-144 (1766).]
Saint George Tucker contrasted the English right to arms with the American right. Tucker noted that the "right" was often only attainable by the rich land owners and were denied to outcast groups such as Catholics, just as southern states in America denied the right to keep and bear arms to blacks, thus resulting in the Freedmans Bureau Act of 1866 and later, the 14th Amendment (see also Tennessee Law Review, Spring 1995 at 813).
The following is excerpted from "The Right to Arms: Does the Constitution or the Predilection of Judges Reign?" by Robert Dowlut (Copyright © 1983 Oklahoma Law Review)
Saint George Tucker (1752 1828) served as a colonel in the Virginia militia, was wounded in the Revolutionary War, was a law professor at William and Mary, and later was a justice on the Virginia Supreme Court from 1804 to 1811. He was also a friend of Thomas Jefferson. In 1803 he published a five volume edition of Blackstone's on the Laws of England. To Blackstone's listing of the "fifth and last auxiliary right of the subject ... that of having arms ... suitable to their condition and degree, and such as are allowed by law," Tucker in a footnote added: "The right of the people to keep and bear arms shall not be infringed." He cited the second amendment, noting that it is "without any qualification as to their condition or degree, as is the case in the British government." He added: "Whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England."
In discussing the second amendment, Tucker wrote: "This may be considered as the true palladium of liberty .... The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and 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. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorize the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty."
Tucker thus merged self defense, prevention of standing armies, and protection from oppression all into a single concept the generalized right of keeping and bearing arms as protected by the second amendment.
More St. George Tucker from the appendix of Blackstone's Commentaries on the Laws of England (1803),
"Here, let us again pause, and reflect, how admirably this division, and distribution of legislative power is adapted to preserve the liberty, and to promote the happiness of the people of the United States... Fifthly, and lastly; by the separation of the judiciary from the legislative department; and the independence of the former, of the control, or influence of the latter, in any case where any individual may be aggrieved or oppressed, under colour of an unconstitutional act of the legislature, or executive. In England, on the contrary, the greatest political object may be attained, by laws, apparently of little importance, or amounting only to a slight domestic regulation: the game laws, as was before observed, have been converted into the means of disarming the body of the people:..." "The congress of the United States possesses no power to regulate, or interfere with the domestic concerns, or police of any state: it belongs not to them to establish any rules respecting the rights of property; nor will the constitution permit any prohibition of arms to the people;..." "If, for example, a law be passed by congress, prohibiting the free exercise of religion, according to the dictates, or persuasions of a man's own conscience or abridging the freedom of speech, or of the press; or the right of the people to assemble peaceably, or to keep and bear arms; it would, in any of these cases, be the province of the judiciary to pronounce whether any such act were constitutional, or not; and if not, to acquit the accused from any penalty which might be annexed to the breach of such unconstitutional act." Oklahoma Law Review(1983)
Assuming the right to keep and bear arms (RKBA) is not an "absolute right," (an altogether meaningless phrase) it has been shown that the state and its branches and subdivisions cannot be trusted to reasonably regulate the RKBA. Clearly written law that was to protect Arizona residents and to maintain an illusion of reasonableness was reinterpreted by the courts into non-existence (see Mann v City of Tucson 2002). The existence of statutes are immaterial because the Executive Branch simply ignores them and declares falsely that Arizona's Constitution allows individual gun rights to be regulated, this is a regulation, therefore this regulation is constitutional. When the Judiciary wants a regulation to disappear, they overrule them. When one does win on the merits of the case, the judiciary buries the decision so it forms no precedent (see Ziskus v Symington)
The Petitioner has made it clear that, his right to Keep and Bear and Bear Arms was in fact denied him by the Respondents and the Respondents have stipulated to that fact in their response on page 5 in their Statement of Facts. The Respondents also make it very clear that they will do so in the future to anyone in similar circumstances. On page 6, paragraph 1, the Respondents state that the state has proper authority to refuse Petitioner entrance to a public building while in possession of a firearm. In fact it is the position of the Respondents, Page 6 paragraph 2, that it is a legitimate governmental purpose to regulate the right to bear arms and cites case law in support of that claim. On page 7 paragraph 1, the Respondents would have the court support their claims that the government has an obligation to protect the safety and welfare of the public without any supporting documentation that such an obligation exist. Nowhere is any attempt to refer to any evidence or study that would support the Respondent's claim that in the event the state was obligated to protect the public's safety and welfare, that regulating the right to bear arms serves the public or the individual. It is the Petitioner's position that not only is it the state's function to defend every individual's right to keep and bear arms, it is the protection of this right that best serves the public's safety and welfare. Since South v. Maryland, 59 US 396 (1856) it has been long held that government has not legal obligation to protect individuals. One such example from 1981:
". . . a government and its agents are under no general duty to provide public services, such as police protection, to any particular individual citizen."--Warren v. District of Columbia, 444 A.2d 1 (D.C. App.181)
Another interesting case is from Riss v City of New York which was settled similarly. Linda Riss phoned the police saying that her estranged husband called and said he would be driving over to harm her. The police told her to call back when he arrived. He poured lye on her face. She sued the city, she lost. The dissenting opinion below spells out the irony very well:
"What makes the City's position particularly difficult to understand is that, in conformity to the dictates of the law, Linda did not carry any weapon for self-defense. Thus by a rather bitter irony she was required to rely for protection on the City of New York which now denies all responsibility to her." Riss v. New York, 22 N.Y.2d 579,293 N.Y.S.2d 897, 240 N.E.2d 806 (1968).
So, if police have no duty to protect individuals, who does? Who fills that vacuum? Why, the individual, of course. Armed with a weapon suitable for the job: a firearm, concealable, or not.
Respondents would also have this court support the claim, page 7 paragraph 2, that Article 2 Section 26 focuses on the right to possess weapons for self-defense and that this language suggest regulation is permissible. It is Petitioner's argument that Respondent's claim to render the Petitioner totally disarmed leaves him without a 'weapon for self-defense'.
Petitioner is unable to find where in Art 2, Sect 26, such a power is granted to the legislature or any branch of government. And even if it were, the Court must apply strict scrutiny. There is no compelling need of Department of Revenue to ban citizens or even employees from entering government buildings while armed or checking weapons with security since there is no over-riding security need in a building such as Department of Revenue when compared to such buildings as jails an courts such as the Arizona Supreme Court or Maricopa County Superior Court which checks firearms or Glendale City Hall which permits citizens and employees to check firearms, or other government facilities which do not post "No Weapons" signs at all. If the compelling end is to enhance security, perhaps Director Killian can explain why the only incident of an attack on a Department of Revenue employee occurred when an unarmed employee was attacked by her estranged spouse. How did Director Killian's un-armed victim zone make that woman safer?
II. Founding Documents:
Respondents make the claim that they are not in violation of the Enabling Act, the Arizona State Constitution or the United States Constitution because that the disarming of the Petitioner while entering a public structure is part of the Respondent's ability to place "…reasonable and limited restriction on his (Petitioner's) right to bear arms…". It is this claim by the Respondents that is in question.
Petitioner's argument is that the Enabling Act, The Declaration of Independence, The united States Constitution and the Arizona State Constitution are very clear in their prohibition against the State government's wish to place any reasonable and/or limited restrictions on Petitioner's ability to be unimpaired in his ability to self-defense. Respondent would have this court support the idea that the Respondents are to be the entity that determines what is and is not reasonable or limited.
26 Bearing arms
Section 26. The right of the individual citizen to bear arms in defense of himself or the state shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.
Jefferson's suggestion to heed the words of the Framers is applicable to Arizona's founding during the Arizona Constitutional Convention of 1910. The text of the debates of 1910 are found in The Records of the Arizona Constitutional Convention of 1910 Pages 678 and 679. Edited by: John S. Goff. A copy of which can be found in the Law Library of The Supreme Court of Arizona. In that excerpt (see appendix), one can see that the section of the Declaration of Rights dealing with the right to keep and bear arms was then Section 32 but was worded then as it is now. Before final acceptance of the language of Section 32 it was asked of those in attendance whether they wanted to have it amended. Two individuals moved to amend Section 32. One wanted to alter the Section to read:
"The people shall have the right to bear arms for their safety and defense, but the legislature shall regulate the exercise of this right by law."
Another suggested amending the Section thusly to allow the Legislature to prohibit the carrying of concealed (as opposed to openly) weapons:
"...but the legislature shall have the right to regulate the wearing of weapons to prevent crime."
Both motions failed. So, the question remains, from where does the State Legislature, the Executive, or the Judicial branch gain its grant of power in this area? The Petitioner rightly maintains that such a grant of power does not and never has existed. Some have said that the ban on concealed weapons was derived from Territorial days, and so it is just. However, Arizona's Constitution renders null and void any such law that is "repugnant to the Constitution," as Article 2, Section 26 and its draft history shows it to be. Relatedly, the Respondent and others enjoy citing Dano v Collins as reason to charge that many gun rights (such as concealed carry) regulation is constitutional.
Dano v Collins was scheduled to be heard at ASU's College of Law. After agreeing to hear, and receiving a voluminous and comprehensive Amicus brief prepared by Bob Corbin Bob Dowlut, the Arizona Supreme Court Justices suddenly changed their minds and refused to hear the very case which they had earlier agreed to hear. The Corbin-Dowlut brief reflected major historical research on the various players at the constitutional convention. It dealt in detail on the question of what the second half of Section 32 was really about. There was no where to run. It meant what it said.
The Justices reversed the prior decision to hear the case (after they had read evidence that would devastate the arguments of Tom Collins' point-man, Richard Romley.). The court wrote that hearing this case would be "improvident". The Petitioner wonders why defending the rights of Arizona Citizens would be "improvident"?
The Respondent also goes on to misquote (or not quote at all) several federal court cases. Respondents cite United States v. Miller 307 US 174 (1939) without making even the slightest link to how it applies to Petitioner.
Here is the most telling, and least cited, passage from Miller:
"The signification attributed to the term militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators. These show plainly enough that the militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
A powerful support of the individual RKBA, especially when one learns that Miller had won in the lower courts and was unrepresented in the Supreme Court, which heard only the arguments from government prosecutors.
The rights protected by the Second Amendment are technology-independent as are the rights protected by the First Amendment. The First amendment protects not just quill pens and printing presses, but fax machines and computers. As well, the arms of the Revolutionary period were rifled flintlocks. These evolved to cap locks, cartridge rifles, repeating rifles, semi-auto and full auto weapons, all of which were first owned by private citizens, not government troops. The Minuteman had his musket. The 21st Century American Citizen should have his M16 or M14.
Respondent cites Tot, a lower federal court case which post dates Miller by three years. That court suggests that the Framers considered the Second Amendment to not protect an individual right. This contention is utter nonsense and is not supported by Federalist 29, 45, or 46 or any other writing of the Founding Fathers. As well, it is contrary to the extensive treatment given the Second Amendment by the Fifth Circuit Court of Appeals in US v Emerson (2001).
That Respondent believes that nearly any law regulating the RKBA is constitutional flies in the face of every word from our Founding Fathers, and Respondent can find none from that era who would agree with the anti-individual rights position. That there is no appreciable RKBA flies in the face of even Scott v Sanford 60 US 393 (1856) which stated:
"[Slaves could not be citizens] For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."
It appears that in 1856, at least, Citizens had the right to carry arms "wherever they went." The Court continued:
"For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.
"Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding."
We know that Respondent would like to think that the RKBA concerns the National Guard, even if it didn't exist until the Dick Military Act of 1903, nevertheless, do the rights noted above seem to be rights of a Militia, or of individuals? If the former, why are those rights grouped so?
Based on the foregoing arguments, The Supreme Court of the State of Arizona has the ability to accept jurisdiction and should. It would then be the Constitutional duty of the Supreme Court of the State of Arizona to grant relief sought by the Petitioner.
Respectfully submitted this 6th day of June, 2002, by:
5739 N. 11th Way
Phoenix, Arizona 85014
A P P E N D I X
The Records of the Arizona Constitutional Convention of 1910
Pages 678 and 679. Edited by: John S. Goff (C) The Supreme Court of Arizona
Mr. Chairman: Are there any objections or corrections to Section 32?
Mr. Baker: Mr. Chairman, I move to strike out all of Section 32. I never in all my life found it necessary to carry a six-shooter and I have passed through nearly all the scencs (sic) and experiences of this wild and unsettled country. Carrying arms is dangerous. It is a very dangerous thing to oneself and to one's associates and should not be permitted under any circumstances. I have seen lives lost and innocent blood spilled just through
the carrying of arms, concealed weapons under one's coat or shirt. It is most dangerous and vile; a practice that should never be permitted except in times of war and never in times of peace. Think of it; carrying a six shooter or a knife or some other terrible arm of defense, and then in a moment of heated passion using that weapon. I do not believe in it and I move to strike out that section.
Mr. Webb: I second that motion for I agree with the gentleman from Maricopa that it is a pernicious thing and should not be included in this bill. I, too, in all my experiences, have never seen the time when it was necessary to carry concealed weapons except in times of Indian troubles, and have had many and varied experiences, in cow camps. I have been in many places where some might deem it necessary to come armed, but I did not, nor do I believe it necessary to do so now. We are no longer a frontier country, and if we did not need arms in the early days of pioneering in this country, we do not now, and I second the motion.
Mr. Crutchfield: I move to amend by inserting after the word "impair" in line 9, page 7, the following words: "...but the legislature shall have the right to regulate the wearing of weapons to prevent crime."
Mr. Baker: That is all right and I second the motion.
Mr. Parsons: Mr. Chairman, I move to amend by striking out all of Section 32 and substituting the following in lieu thereof: "The people shall have the right to bear arms for their safety and defense, but the legislature shall regulate the exercise of this right by law."
Mr. Feeney: I second that motion.
Mr. Chairman: The question comes up on the amendment offered by the gentleman from Cochise, Mr. Parsons, to strike out Section 32, and insert in lieu thereof his amendment. Those in favor of this motion answer "aye", opposed "nay". The motion is lost. The question now comes up on the amendment offered by Mr. Crutchfield to insert after the word "impaired" in line 9, page 7, the following words: "...but the legislature shall have the right to regulate the wearing of weapons to prevent crime." Those in favor of this motion answer "aye", opposed "nay". The secretary will call the roll.
Roll Call showed 22 "Ayes" 23 "Nays".
Mr. Chairman: The motion is lost, and Section 32 will stand approved as read unless there are other amendments. Are there any objections to Section 33?
Whose text was used in law schools in the later 19th century? It is called the "General Principles of Constitutional Law" by Thomas Cooley. Said Cooley, "The right of self defense is the first law of nature; in most governments it has been the study of rulers to confine this right within the narrowest limits possible."
Further, "The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon...If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet in voluntary discipline in arms, observing in so doing the laws of public order."
William W. Rawle, A View of the Constitution 125 (2d ed. 1829). was the author of "A View of the Constitution of the United States of America." His work was adopted as a constitutional law textbook at West Point. He is quoted by Stephen P. Halbrook in "That Every Man Be Armed: The Evolution of a Consitutional Right" as follows.
"In the Second Article, it is declared that a well regulated militia is necessary to the security of a free state: a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable, yet ... the militia form the palladium of the country .... The corollary from the first position is, that the right of the people to keep and bear arms shall not be infringed. THE PROHIBITION IS GENERAL. NO clause in the Constitution could by any rule of construction be conceived to give Congress a right to DISARM THE PEOPLE." Such a flagitious attempt could only be made under some general pretence by a state legislature. But, if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
Cesare Beccaria, an Italian criminologist and penal reformer, translated by Jefferson and distributed to his contemporaries in his "Common Place Book," is instructive on today's debate as well as the Framer's original intent.
"False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty so dear to men, so dear to the enlightened legislator and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree."
Of the Bill of Rights which included the Second Amendment: William Grayson of Virginia wrote to Patrick Henry, "...a string of amendments were presented to the lower House; these altogether respected personal liberty." June, 1789.
Tenche Cox, a friend of Madison's wrote the following glowing report of the Second Amendment, "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." Philadelphia Federal Gazette, June 18, 1789. Madison later read these words and wrote back to Cox, "...the printed remarks I already find in the gazettes here...be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the cooperation of your pen.
Cox, like the rest of our Founding Fathers was not Johnny-Come-Lately to this issue, the following words were written prior to the Constitutional Convention:
"The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon regular troops, and will generally be sufficient to over-awe them. Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."
Samuel Adams: "The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Massachusetts' U.S. Constitution ratification convention, 1788.
Noah Webster, Pennsylvania: "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense raised in the United States..."
"Leading Principles of the Federal Constitution, Philadelphia," 1787.
Alexander Hamilton in Federalist #28: "If the representatives of the people betray their
constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state."
Hamilton in Federalist #29: "If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens."
James Madison in Federalist #46: "[A standing army should not be feared since] This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.
CERTIFICATE OF SERVICE
Ernest Hancock certifies:
That on the _____ day of June, 2002, he delivered the original and six copies of this Reply to Response to Petition for Special Action to be delivered to:
Clerk of the Arizona Supreme Court
1501 West Washington
Phoenix, Arizona 85007
And personally delivered two copies to Respondents:
Janet Napalitano (14000)
1275 West Washington Street
Phoenix, Arizona 85003
STATE OF ARIZONA )
County of Maricopa )
SUBSCRIBED AND SWORN to before me this date:__________
My Commission Expires: