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Lysander Spooner cited by Alito and Thomas in McDonald v. Chicago

July 12, 2010 By: John Kindley Category: Uncategorized

Via H. J. Knowles at her “With Irresistible Clearness” blog, the SCOTUS’ majority opinion by Alito in its recent Second Amendment decision in McDonald v. Chicago and the concurring opinion by Thomas both cite possibly the greatest lawyer who’s ever lived, 19th century abolitionist and anarchist Lysander Spooner. (Scalia had likewise cited Spooner in Heller v. District of Columbia.)

At page 22 of Alito’s opinion in McDonald he writes:

By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense. See M. Doubler, Civilian in Peace, Soldier in War 87–90 (2003); Amar, Bill of Rights 258–259. Abolitionist authors wrote in support of the right. See L. Spooner, The Unconstitutionality of Slavery 66 (1860) (reprint 1965); J. Tiffany, A Treatise on the Unconstitutionality of American Slavery 117–118 (1849) (reprint 1969).

Spooner wrote at page 66 of his The Unconstitutionality of Slavery:

Let us now look at some of the provisions of the constitution, and see what crimes might be held to be authorized by them, if their meaning were not to be ascertained and restricted by such rules of interpretation as apply to all other legal instruments.

The second amendment to the constitution declares that “the right of the people to keep and bear arms shall not be infringed.”

This right “to keep and bear arms,” implies the right to use them ‑‑ as much as a provision securing to the people the right to buy and keep food, would imply their right also to eat it. But this implied right to use arms, is only a right to use them in a manner consistent with natural rights ‑‑ as, for example, in defence of life, liberty, chastity, &c. Here is an innocent and just meaning, of which the words are susceptible; and such is therefore the extent of their legal meaning. If the courts could go beyond the innocent and necessary meaning of the words, and imply or infer from them an authority for anything contrary to natural right, they could imply a constitutional authority in the people to use arms, not merely for the just and innocent purposes of defence, but also for the criminal purposes of aggression ‑‑ for purposes of murder, robbery, or any other acts of wrong to which arms are capable of being applied. The mere verbal implication would as much authorize the people to use arms for unjust, as for just, purposes. But the legal implication gives only an authority for their innocent use. And why? Simply because justice is the end of all law ‑‑ the legitimate end of all compacts of government. It is itself law; and there is no right or power among men to destroy its obligation.

At page 39-40 of Thomas’ concurrence in McDonald he writes:

[W]hile Barron made plain that the Bill of Rights was not legally enforceable against the States, see supra, at 2, the significance of that holding should not be overstated. Like the Framers, see supra, at 14–15, many 19th-century Americans understood the Bill of Rights to declare inalienable rights that pre-existed all government. Thus, even though the Bill of Rights technically applied only to the Federal Government, many believed that it declared rights that no legitimate government could abridge.

Chief Justice Henry Lumpkin’s decision for the Georgia Supreme Court in Nunn v. State, 1 Ga. 243 (1846), illustrates this view. In assessing state power to regulate firearm possession, Lumpkin wrote that he was “aware that it has been decided, that [the Second Amendment], like other amendments adopted at the same time, is a restriction upon the government of the United States, and does not extend to the individual States.” Id., at 250. But he still considered the right to keep and bear arms as “an unalienable right, which lies at the bottom of every free government,” and thus found the States bound to honor it. Ibid. Other state courts adopted similar positions with respect to the right to keep and bear arms and other enumerated rights.16 Some courts even suggested that the protections in the Bill of Rights were legally enforceable against the States, Barron notwithstanding.17 A prominent treatise of the era took the same position. W. Rawle, A View of the Constitution of the United States of America 124–125 (2d ed. 1829) (reprint 2009) (arguing that certain of the first eight Amendments “appl[y] to the state legislatures” because those Amendments “form parts of the declared rights of the people, of which neither the state powers nor those of the Union can ever deprive them”); id., at 125−126 (describing the Second Amendment “right of the people to keep and bear arms” as “a restraint on both” Congress and the States); see also Heller, 554 U. S., at __ (slip op., at 34) (describing Rawle’s treatise as “influential”). Certain abolitionist leaders adhered to this view as well. Lysander Spooner championed the popular abolitionist argument that slavery was inconsistent with constitutional principles, citing as evidence the fact that it deprived black Americans of the “natural right of all men‘to keep and bear arms’ for their personal defence,” which he believed the Constitution “prohibit[ed] both Congress and the State governments from infringing.” L. Spooner,The Unconstitutionality of Slavery 98 (1860).

Spooner wrote at page 98 of his The Unconstitutionality of Slavery:

These provisions obviously recognize the natural right of all men “to keep and bear arms” for their personal defence; and prohibit both Congress and the State governments from infringing the right of “the people ” ‑‑ that is, of any of the people ‑‑ to do so; and more especially of any whom Congress have power to include in their militia. This right of a man “to keep and bear arms,” is a right palpably inconsistent with the idea of his being a slave. Yet the right is secured as effectually to those whom the States presume to call slaves, as to any whom the States condescend to acknowledge free.

Under this provision any man has a right either to give or sell arms to those persons whom the States call slaves; and there is no constitutional power, in either the national or State governments, that can punish him for so doing; or that can take those arms from the slaves; or that can make it criminal for the slaves to use them, if, from the inefficiency of the laws, it should become necessary for them to do so, in defence of their own lives or liberties; for this constitutional right to keep arms implies the constitutional right to use them, if need be, for the defence of one’s liberty or life.

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