Message #24 (40 is last): Date: Tue Sep 21 17:15:56 1999 From: zonie@AZTEC.ASU.EDU (RICK DESTEPHENS) Subject: More Tucker To: AZRKBA@asu.edu
I have gotten a half-dozen requests for the St. George Tucker citation (and expanded ones at that). I finally found it.
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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 rigt 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 ver 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 pwer 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."