“Under Presser, the right to keep and bear arms is not a limitation on the power of States.”
Hah …the supreme court of Texas claims otherwise …
“The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the ‘High Powers’ delegated directly to the citizen by the United States Constitution, Amendment II, and “is excepted out of the general powers of government”. A law cannot be passed to infringe upon it or impair it, because it is above the law, and independent of the law-making power.”
-Supreme Court of Texas, Cockrum v. State of Texas (1859).
Delving into my library, I pulled my copy of Clayton Cramer‘s For Defense of Themselves and the State: The Origins and Judicial Interpretation of the Right to Keep and Bear Arms. Here’s what Clayton has to say about it over pages 90-92:
Article 610 of the penal code specified that manslaughter committed with a Bowie knife or dagger would be considered to be murder, and punishable accordingly. The defendant, John Cockrum, was indicted in 1857 for murdering William N. Self, of Freestone County. In 1858, Cockrum was convicted of murder, apparently based on article 610, and sentenced to life in prison in solitary confinement.
Cockrum appealed. The relevant part of his argument, as presented by his lawyer:
It is contended, that Article 610 of the Penal Code, is in violation of both of the State and Federal Constitution, which contain substantially the same provision, securing the citizen from any infringement on the right to keep and bear arms. 1st. it is asserted, that any law prohibiting a citizen from keeping or bearing any knife, which is intended to be worn upon the person, which is capable of inflicting death, and not commonly known as a pocket-knife, would be unconstitutional. To prohibit absolutely the keeping and having of an ordinary weapon, is certainly to infringe on the right of keeping and bearing arms. A bowie-knife, or dagger, as defined in the Code, is an ordinary weapon, one of the cheapest character, accessible even to the poorest citizen. A common butcher-knife, which costs not more than half a dollar, comes within the description given of a bowie-knife or dagger, being very frequently worn on the person. To prohibit such a weapon, is substantially to take away the right of bearing arms, from him who has not money enough to buy a gun or pistol.
Here Cockrum’s attorney, Robert S. Gould, crisply articulated the position that would be taken a century later, in opposition to laws banning so-called “Saturday Night Specials” – that such laws work principally to disarm the poor.
And I cannot help but point out the extreme divergence between this argument and the argument being put forth today in England seeking justification to ban all long, sharp kitchen knives.
But what is the relevance of a law enhancing the penalty for manslaughter, to the right to carry a “bowie-knife or dagger”?
Gould pointed to the court decisions on the right to keep and bear arms, in particular. Nunn v. State (1846), since it had overturned a law banning small pistols. He then argued that if it was unconstitutional to ban the carrying of an arm for a lawful purpose, such as self-defense; and discriminating against a particular arm by enhancing the penalty for criminal use would be an attempt to discourage law-abiding people from carrying such arms, for fear that a manslaughter might thus be punished as severely as murder.
From what I’ve seen, England has been treating arms violations more severely than some murders. Anyway, continuing:
Most of the Texas Supreme Court decision, written by Justice Roberts, addressed the issues of how the varying punishments available for a murder conviction could be determined by the jury, and are of no relevance to our interests. Of relevance to the Second Amendment and Texas’ similar constitutional provision, especially in light of the post-war decisions by the Texas Court: “it is contended, that this article of the Code, is in violation of the Constitution of the United States, and of this State.” After citing the Second Amendment and the 13th section of the Texas Bill of Rights: “Every citizen shall have the right to keep and bear arms, in the lawful defense of himself or the State,” the Court explicated the purposes of the state and Federal Constitutional protections, with no apparent disagreement that both applied to a state law:
The object of the first clause cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our Bill of Rights, has the same broad objec in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defence of himself or the State, is absolute. He does not derive it from the State government, but directly from the soveriegn convention of the people that framed the State government. it is one of hte “high powers” delegated directly to the citizen, and “is excepted out of the general powers of government.” A law cannot be passed to infringe upon or impact it, because it is above the law, and independent of the law-making power.
The Court then held that discrimination in sentencing based on the probable lethality of a weapon was legally justified, but:
The right to carry a bowie-knife for lawful defence is secured, and must be admitted. It is an exceedingly destructive weapon. It is difficult to defend against it, by any degree of bravery, or any amount of skill. The gun or pistol may miss its aim, and when discharged, its dangerous character is lost, or diminished at least. The sword may be parried. With these weapons men fight for the sake of the combat, to satisfy the laws of honor, not necessarily with the intention to kill, or with a certainty of killing, when the intention exists. The bowie-knife differs from these in its device and design; it is the instrument of almost certain death. He who carries such a weapon, for lawful defence, as he may, makes himself more dangerous to the rights of others, considering the frailties of human nature, than if he carried a less dangerous weapon.
Today’s controversy over semiautomatic military style rifles (so-called “assault weapons”) has strong parallels to the concern expressed here about the Bowie. In both cases, the weapon was perceived as an “instrument of almost certain death,” and a a weapon against which there was no defense. Also like today’s controversy, the distinction between a Bowie knife and a butcher knife is partly in the perception of the purposes of the weapon, not their actual capabilities.
Interesting parallels to today, aren’t they? The more things change….
The critical thing about this, though is that the Cockrum decision came in 1859. The U.S. v. Cruikshank decision came in 1875, followed by Presser v. Illinois in 1886. Cockrum should still be precedent for Texas STATE law, given the wording of 13th Section of the Texas Bill of Rights, but it does not apply to the FEDERAL government, because inferior courts cannot tell the Federal Supreme Court that it’s out to lunch, even when it is. And laws have been passed to infringe on or impair the right to keep and bear arms, but not too damned many in Texas.
You’ll notice that the Texas legislature didn’t stand up to the 1994 Assault Weapons Ban as being violative of the right to keep and bear arms, nor did it protest the 1934 National Firearms Act, nor any part of the 1968 GCA.
Nice try, Robert, but no kewpie doll for you! 😉