Posted by David Kopel:
One More State Constitutional Decision:
http://volokh.com/archives/archive_2006_11_12-2006_11_18.shtml#1163745957
The 1846 case Nunn v. State was the first case in which a court used
the Second Amendment to invalidate a gun control law. The Georgia
legislature had banned the sale and possession of knives intended for
offensive or defensive purposes and pistols, except "such pistols as
are known and used as horse man's pistols." The law made an exception
which allowed possession (but not sale) of the banned weapons if the
weapon were worn "exposed plainly to view."
The Georgia Constitution at the time had no right to arms provision,
but the state Supreme Court combined natural rights analysis with the
Second Amendment to declare the law unconstitutional:
[When] 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?
. . . [T]his is one of the fundamental principles, upon which rests
the great fabric of civil liberty, reared by the fathers of the
Revolution and of the country. And the Constitution of the United
States, in declaring that the right of the people to keep and bear
arms, should not be infringed, only reiterated a truth announced a
century before, in the act of 1689, "to extend and secure the
rights and liberties of English subjects"--Whether living 3,000 or
300 miles from the royal palace.
The Georgia court kept the introductory clause to the Second Amendment
firmly in view: "our Constitution assigns as a reason why this right
shall not be interfered with, or in any manner abridged, that the free
enjoyment of it will prepare and qualify a well-regulated militia,
which are necessary to the security of a free State."(252) Thus:
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? In solemnly affirming that a
well-regulated militia is necessary to the security of a free
State, and that, in order to train properly that militia, the
unlimited right of the people to keep and bear arms shall not be
impaired, are not the sovereign people of the State committed by
this pledge to preserve this right inviolate?...
The right of the whole people, old and young, 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
the security of a free State. Our opinion is, that any law, State
or Federal, is repugnant to the Constitution, and void, which
contravenes this right, originally belonging to our forefathers,
trampled under foot by Charles I. and his two wicked sons and
successors, re-established by the revolution of 1688, conveyed to
this land of liberty by the colonists, and finally incorporated
conspicuously in our own Magna Charta! And Lexington, Concord,
Camden, River Raisin, Sandusky, and the laurel-crowned field of New
Orleans plead eloquently for this interpretation! And the
acquisition of Texas may be considered the full fruits of this
great constitutional right.
(italics omitted). The opinion concluded by holding that the ban on
concealed carrying was valid because it did not interfere with a
citizen's Second Amendment right; but insofar as the law "contains a
prohibition against bearing arms openly, [it] is in conflict with the
Constitution, and void . . . ." Since the indictment did not specify
that Nunn's weapon was concealed, the charges were quashed.
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