Biden famously told an anti-historical whopper when he asserted, as part of his argument that the 2nd Amendment is not “absolute,” that no private person lawfully owned a cannon at the time of the 2nd Amendment’s ratification in 1791. In fact, hundreds of Americans did, and many still do. New York Governor Kathy Hochul has recently followed suit. She did so on June 23 in condemning Justice Thomas’s majority opinion striking down New York’s “proper cause” prior restraint on concealed carry. Indeed, she brazenly purported to “school” the justices in American history.
In righteous anger, Hochul blurted: “I would like to point out to the Supreme Court justices that the only weapons at the time were muskets.” Hochul’s statement is hokum, just like Biden’s cannon remark. The facts contradict Hochul. It is she, not the justices, who is in dire need of schooling.
Hochul, like Biden, blithely replaces facts with fiction, doing so intentionally, because the facts are terribly inconvenient and analytical argument based on the true facts, way beyond their mental facilities.
Ironically, while purporting to school the justices on history, Hochul ignored the fact that Justice Thomas’s decision for the majority inNY State Rifle & Pistol Ass’n, Inc. v. Bruen is steeped in history, into the very meaning of the 2nd Amendment as understood by those who ratified it on December 15, 1791. Did Hochul even read the decision?
As for the facts, not only did those who proposed and ratified the 2nd Amendment understand well that private individuals owned cannons, they also understood that private individuals owned many other lethal “arms” for self-defense and defense of a free state (protection of the individual rights to life, liberty and property). They understood private persons to be owners of not only muskets but also long rifles, pistols, small swords, broadswords, sabers, tomahawks, and even hand grenades (cast iron, gun-powder filled balls with a fuse).
Apparently before she “schools” the justices, Governor Hochul needs to bone up on American military history. There were muskets in 1791, of course, lots of them (Brown Bess muzzle-loading smoothbores; Charleville smoothbores; and American made smoothbores). Muskets were not ineffectual killing machines, as Hochul presumes. In the hands of the experienced, smoothbore muskets fired 3 or 4 shots per minute, one every 15 or 20 seconds. The user typically carried a hip box containing 30 pre-rolled cartridges. A single shot, let alone 3 or 4, into a body, could certainly bring about death and often did. Indeed, Governor Hochul read about the Battle of Oriskany, part of the Saratoga campaign, in her very own up-state New York, where on August 6, 1777, out of 740 militia, 385 were killed on the battlefield principally from musket fire (round Nessler or Minie balls).
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And contrary to her lecture to the Justices, there were in fact plenty of other lethal “arms” known to Americans in 1791. In addition to common muskets, there were long rifles (Jagers also known as Pennsylvania Rifles) used by snipers and light infantry throughout the Revolutionary War. Long rifles played a pivotal role in the Continentals defeat of the British in the Battle of Saratoga (that’s in New York, Governor). That battle featured prominently Morgan’s Riflemen (possessed of long rifles), among them Timothy Murphy who picked off British General Simon Fraser and 7th Baronet Sir Frances Clerke, hastening a Continental victory for General Horatio Gates over British General John Burgoyne.
In addition to those famed long “Pennsylvania rifles,” “arms” known to Americans in 1791 included pistols, small and broad swords, sabers, and polearms (melee weapons). Cavalry on both sides used pistols and curved sabers. General George Washington himself carried a set of flintlock pistols throughout the Revolutionary War and a 1767 silver-hilted small sword. Hessian dragoons also carried pistols. Additional “arms” were well known, including cannons, as well as hand grenades (iron spheres filled with gun powder and topped with a fuse), which Captain John Paul Jones put to good use in the February 4, 1779 Battle of Flamborough Head. His Bon Homme Richard ship devastated by the more powerful cannon of the HMS Serapis under the command of British Naval Officer Captain Richard Pearson (Jones to Pearson: “Sir, I have not yet begun to fight”), Jones had his crew resort to hand grenades to devastating effect, enabling the hobbled Bon Homme Richard to defeat the Serapis in the biggest naval battle of the Revolutionary War.
Truth be told, the 2nd Amendment protects the individual right of self-defense (to protect one’s life, liberty and property against all comers, whether enemies of a “free state” or enemies of an individual), and with all “arms” sufficient to achieve that objective. The right depends not on whether the weapon is a musket or a modern handgun, rifle (AR-15), or shotgun. The right is pre-political, a natural right. As such, whenever government presumes to take the right away or constrict the right of any American citizen, it must abide by the strictures of the Fifth (federal) or Fourteenth (state) amendments’ due process and equal protection clauses. Innocence of the accused must be presumed and the law must be applied case by case by an Article III court without bias based on the unique facts and circumstances. The resort to prior restraint, such as that employed in the recently passed Safe Communities Act, violates the 2nd Amendment and is ripe for challenge as soon as it is signed by President Biden.
Law-abiding Americans cannot constitutionally have their individual right to keep and bear arms constricted or removed through imposition of a prior restraint from the state or federal governments. Only those convicted of law violation wherein arms have been used in the commission of a crime may have their 2nd Amendment rights constricted or removed, and only then following full satisfaction of the requirements of the Fourth (reasonable search), Fifth (right against self-incrimination and to due process), Sixth (right to a speedy trial, a trial by jury, and to confront witnesses), and Fourteenth (right to due process and equal protection) Amendments to the Constitution. The right and necessity of self-defense for every American is too essential to that individual sovereignty which animates individual liberty, for it to be forfeited on the basis of nothing more than supposition or speculation as to what a person may do.
The far-left (and even a minority of Republican members, among them Minority Leader McConnell) apparently think prior restraints on the exercise of the right constitutional. They should read well Justice Thomas’s words in Bruen. There he explains: “The Second Amendment ‘is the very product of an interest balancing by the people’ and it ‘surely elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-defense. . . It is this balance—struck by the traditions of the American people—that demands our unqualified deference.”
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