Monday, August 25, 2014

Going Armed to the Terror of the People

If people are going to try and claim that there is some form of "Second Amendment right" to carry a weapon in public outside the context of actual militia service (like it or not, Presser v. Illinois, 16 U.S. 252 [1886] seems to be quite on point that it is not protected).

This is a common law offense. Common law made it clear that it was contrary to law to go about in public. , "the offence of riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of  Northampton, 2 Edward 3d, ch. 3d, upon pain of forfeiture of the arms and imprisonment during the Kings pleasure." 

It is hard to imagine a right that would somehow contradict prohibited and antisocial activity.  Indeed, the crime of Going Armed to the Terror of the People consists of the following elements:
A person guilty of this offense
(1)  arms himself or herself with an unusual and dangerous weapon
(2)  for the purpose of terrifying others and
(3)  goes about on public highways
(4)  in a manner to cause terror to the people.

Element (1). In  State v. Huntly, 25 N.C. 418 (1843), the court held that any gun is an unusual and dangerous weapon for purposes of this offense. Huntly, 25 N.C. at 422. In that case it was argued that a gun cannot constitute an unusual weapon, “for there is scarcely a man in the community who does not own and occasionally use a gun of some sort.” Id. The court rejected that argument, concluding: “A gun is an ‘unusual weapon,’ wherewith to be armed and clad. No man amongst us carries it about with him, as one of his every day accoutrements–as a part of his dress–and never we trust will the day come when any deadly weapon will be worn or wielded in our peace loving and law-abiding State, as an appendage of manly equipment.” Id.
Element (4). The offense of affray involves fighting in public to the terror of the people. For purposes of that offense, cases hold that if members of the public experience fear, the “to the terror of the people” element is satisfied. In re May, 357 N.C. 423, 428 (2003). In an unpublished case involving a charge of going armed to the terror of the people, the North Carolina Court of Appeals found this element satisfied where the defendant shot his gun while driving closely behind another vehicle on a public highway. State v. Toler, 716 S.E.2d 875 (N.C. App. 2011) (unpublished) (rejecting the defendant’s argument that his actions were not “to the terror of the people” where the only people involved were those in the victim’s car, and stating: “We find this to be substantial evidence that this behavior was intended to be to the terror of the people and was in fact to the terror of the people. The fact that a limited number of witnesses testified regarding Defendant’s actions does not change the character of those actions.”).

In other words, if one causes fear in the general public then you are guilty of this offence.

As I said before,  William Rawle explained this in relation to the Second Amendment in his treatise "A View of the Constitution of the United States", 125--26 1829 (2d ed.):
"This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment."
While some people would like to claim that carrying weapons in public is covered by the Second Amendment, Presser v. Illinois, 16 U.S. 252 [1886]
It cannot be successfully questioned that the state governments, unless restrained by their own constitutions, have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States, and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations, are [116 U.S. 252, 268]   authorized by the militia laws of the United States. The exercise of this power by the states is necessary to the public peace, safety, and good order. To deny the power would be to deny the right of the state to disperse assemblages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine.
Although, one thing that the Presser court made clear was that the Second Amendment right was tied to militia service and that carrying weapons outside that context was not covered by the Amendment.
The right voluntarily to associate together as a military company or organization, or to drill or parade with arms, without, and independent of, an act of congress or law of the state authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.
As I have said before,  I'm rather surprised that Presser has been neglected in Second Amendment jurisprudence.  Although, maybe surprise is the wrong word to use since this decision so clearly supports the "Civic Right" interpretation of the Second Amendment by pointing out that the right to bear arms is only protected when it relates to militia service.

Presser was doing what open carry advocated do these days and walking about claiming his Second Amendment right to bear arms in public. He was not engaging in menacing activity (although the common law does not really require actual menace, the mere fact one is carrying a weapon in public is enough to prove menace).  To be quite frank, Presser is the gun rights fanatic's worst nightmare.

I would add that any "incorporation" issue is also addressed in this decision by pointing out that the Second Amendment right DOES apply to the states if they were to abridge the continuation and render possible the effectiveness of militias under the aspect of Article I, Section 8, clauses 15 & 16, not private uses.

As US v. Miller said, [it is] With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.  Which means, as William Rawle pointed out, the first and second clauses of the Second Amendment are corollaries and must be considered together.

There is no right to go about armed outside the context of national service and the law should not be misinterpreted to say there is. Additionally, one cannot claim a right to terrorise people.

See also:

No comments:

Post a Comment