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“At the time of the Founding,” the phrase so important in Heller, there was a right to carry firearms, in public, in New Jersey. 1765-1774 Part 1: John Witherspoon and William Franklin

March 05, 2018 4:29 PM | Anonymous member

Although Heller was decided in 2008, and McDonald applied the Second Amendment to the States in 2010, New Jersey still reads the right to bear arms as it re-interpreted the Second Amendment in 1968.

The common law did not recognize any absolute right to keep and bear arms. [Burton v. Sills, 248 A. 2d 521 - NJ: Supreme Court 1968 at 96 citing the Statute of Northampton, 2 Edw. III, c. 3 (1328).]

As a direct result of Burton, the State became emboldened and “furthered” the State Police Investigation Unit's Rule in 1971 with a “strict policy” of Assignment Judges [See Siccardi at 557.] that required when “determining when a 2C:58-4 permit to carry should be issued to a private citizen” the Court must follow “the core substantive standard of Siccardi.

Under the Siccardi rule there must be "an urgent necessity for self-protection." The requirement is of specific threats or previous attacks demonstrating a special danger to the applicant's life that cannot be avoided by other means. Generalized fears for personal safety are inadequate, and a need to protect property alone does not suffice. [In re Preis, 573 A. 2d 148 - NJ: Supreme Court 1990 citing Siccardi v. State, 284 A. 2d 533 - NJ: Supreme Court 1971 at 557-558.]

And while Burton held that, 

New Jersey's Gun Control Law is highly purposed and conscientiously designed toward preventing criminal and other unfit elements from acquiring firearms while enabling the fit elements of society to obtain them with minimal burdens and inconveniences, [Burton at 105.] 

since 1971, virtually no “fit element of society” viz., a 2C:58-3 FID Card holder, is granted a 2C:58-4 Permit to Carry a Handgun.

In 1766, The Presbyterian College of New Jersey, known today as Princeton University, sent Richard Stockton to the town of Paisley, Scotland to persuade to the Reverend John Witherspoon to accept the appointment as President of the College. The female branches of Witherspoon’s family had been reluctant to immigrate to America, however, and Richard Stockton had to call on all of his powers of persuasion to promote the interests of the College and reverse Witherspoon’s objections. [Sanderson, J., & Waln Jr., R. (1823). Biography of the Signers of the Declaration of Independence. Eastern District of Pennsylvania: R.W. Pomeroy. Page 78.]

During Stockton’s tour of the United Kingdom, while residing in Great Britain, Stockton was attacked one night in the city of Edinburgh by a desperate robber. The physical confrontation with the robber was not only severe, but a matter of life and death. Stockton, however, skillfully defended himself with a small sword in his possession, and emerged from the engagement successful after repelling the attack by wounding to robber and forcing his retreat. As the story goes, the sword is still in the possession of the Stockton family. [Sanderson pg. 79.]

At this point we have to look at Stockton’s small sword as a concealed weapon, for if it weren’t concealed the attacker most likely would not have attacked, and we need to ask ourselves:

  • 1.    Did Stockton have “specific threats” about the desperate robber?
  • 2.    Had Stockton survived “previous attacks” from the desperate robber?
  • 3.    Did Stockton have permit to carry a concealed weapon?
  • 4.    Or was Stockton carrying the concealed sword over “generalized fears for his personal safety"?

Stockton, by preserving his own life, would end up signing the Declaration as a Representative of New Jersey. Witherspoon would also become a signer the Declaration of Independence as a representative of New Jersey.

But there is more to consider about Stockton’s persuasion to get Witherspoon to accept the Princeton position. Witherspoon’s:

students included, in addition to a president and vice-president of the United States, nine cabinet officers, twenty-one senators, thirty-nine congressmen, three justices of the Supreme Court, and twelve state governors. Five of the nine Princeton graduates among the fifty-five members of the Constitutional Convention of 1787 were students of Witherspoon. [] 

James Madison himself attended the College of New Jersey and studied under and was heavily influenced by John Witherspoon. So we have to wonder where we would be right now, if Stockton wasn’t carrying his concealed sword, and was killed by the robber, and Witherspoon never came back to Princeton with him?

In a September 7th, 1774 letter from Lord Dartmouth to Royal Governor William Franklin, Dunmore expressed the King’s anxiety concerning the Continental Congress in Philadelphia,

I must not omit this Opportunity of expressing to you how great Concern it has given the King to find that His Subjects in the different Colonies in North America have been induced, upon the grounds stated in their different Resolutions, to nominate Deputies to meet in general Congress at Philadelphia. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 496-497.]

A few weeks earlier, in August 1774, John Witherspoon had written in Thoughts on American Liberty,

That it be recommended to the legislature of every colony, to put their militia upon her best footing; and to all Americans to provide themselves with arms, in case of war with the Indians, French or Roman Catholics, or in case they should be reduced to the hard necessity of defending themselves from murder and assassination. [Larry R. Gerlach New Jersey in the American Revolution 1763-1783 A Documentary History. New Jersey Historical Commission, Trenton. NJ 1975 Citing here John Witherspoon, The Works of John Witherspoon (9vols., Edinburgh, 1804), 9:73-77.]

While Witherspoon was not writing an exact Second Amendment analogue, Witherspoon makes several important revelations about the militia of the Second Amendment in New Jersey “at the time of the founding”. [See Heller at 2802 (Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment.)]

“Upon her best footing” must be synonymous with well regulated. [See Heller at 2800 (the adjective "well-regulated" implies nothing more than the imposition of proper discipline and training.)]

And for the militia to be “upon her best footing”, all citizens must “provide themselves with arms.” This would be hard to do if New Jersey banned them all or did not let New Jersey citizens carry their arms outside the home with a 2C:58-4 Permit to Carry.

And indeed, the Colony of New Jersey once tried to do that. The same year Witherspoon wrote Thoughts on American Liberty, the Royal Governor of New Jersey, William Franklin was a recipient of an October 19th, 1774 circular letter from the Earl of Dartmouth to all the Governors in America, relative to arresting and securing any gunpowder, arms or ammunition which might be imported from England to the Colonies without license.

His Majesty having thought fit, by His Order in Council this Day, to prohibit the Exportation from Great Britain of Gunpowder, or any sort of Arms or Ammunition. I herewith inclose to you a Copy of the Order, and it is His Majesty’s Command that you take the most effectual measures for arresting, detaining and securing any Gunpowder, or any sort of arms or ammunition, which may be attempted to be imported into the Province under your Government, unless the Master of the Ship having such Military Stores on Board shall produce a License from His Majesty, or the Privy Council, for the exportation of the same from some of the Ports of this Kingdom. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 497-498.]

Imagine that, the Governor of New Jersey took measures to stop gun powder, arms and ammunition from coming into New Jersey without a license from the King or the Privy Council because the King believed the Continental Congress to be of doubtful Propriety & Legality and viewed the delegates to be, for lack of a better word, insurgents.

The New Jersey delegates were Stephen Crane, John De Hart, James Kinsey, William Livingston, and Richard Smith. De Hart sat on the New Jersey Supreme Court for a brief time, Kinsey would become the Chief Justice of New Jersey's Supreme Court and Livingston would replace William Franklin as Governor and yet the King outlawed gun powder, arms and ammunition because these talented men met in public. Sound familiar? 

Look at today's proposals.

1. No magazines over 10 rounds without a license from Murphy or Loretta!

2. No 2C:58-4 Permit without a license from a License from His Majesty, or the Privy Council ... I mean the the County Judge and the Chief. 

Nevertheless, while the Colonial government was attempting to ban gun powder, arms and ammunition in New Jersey, Witherspoon was simultaneously telling the citizens to “provide themselves with arms.” And quite discreetly, Witherspoon said the arms were “in case of war with the Indians, French or Roman Catholics, or in case they should be reduced to the hard necessity of defending themselves from murder and assassination. [Emphasis by Factor.] Both were apparently legal “at the time of founding.”

Compare Witherspoon’s “in case of” terminology with the Siccardi Rule where there must be: 

a special danger to the applicant's life … as evidenced by serious threats or earlier attacks.” [Preis at 566.] 

New Jersey contends that: 

the "justifiable need" component of the carry permit law accommodates,  on a case-by-case basis, those who have a reason--one based on more than a generalized concern about the prevalence of crime—to anticipate a violent attack in a public place warranting lawful defensive use of a handgun. [In re Wheeler, 81 A. 3d 728 - NJ: Appellate Div. 2013 at 739.] 

There is that nail in the State's coffin "on a case-by-case" basis again!!!

Anticipate an attack? There is no way Richard Stockton anticipated the attack in Scotland. Clearly Stockton was carrying his concealed sword on a generalized fear of Crime. And although Stockton was carrying the sword in violation of the Siccardi Rule, that is to say for a “generalized fear for personal safety,” we might all be British if he didn't!   

Moreover, Witherspoon wrote Thoughts on American Liberty over a month before Dunmore’s Circular Letter. Worse for the State, when determining if NJAC 13:54-2.4d1 is constitutional, under the Siccardi Rule

  • Indians or the French, would have had to attack Witherspoon’s citizens first.
  •  Witherspoon’s citizens would then have had to survive the attack (or attacks as the Siccardi Rule reads plural) 
  • and only then could Witherspoon’s citizens arm themselves.

In Thoughts on American Liberty, Witherspoon’s citizens armed in case the Indians or the French attacked viz., in preparation for a possible attack. These are two diametrically opposed views of the militia.

And Witherspoon’s citizens weren’t just arming “themselves” to “suppress Insurrections or repel Invasions” as in Article 1 Section 8 clause 15. Witherspoon’s citizens were arming “in case they should be defending themselves from murder and assassination.”

So in New Jersey, in 1774, citizens could arms themselves and carry weapons in public before any attack took place and for their own “generalized fears for personal safety.”

Even Royal Governor William Franklin knew the colonies were always permitted to obtain arms and drill militia for their own defense as a letter from Lord Hillsborough to Franklin dated May, 4th, 1771 points out.

His Majesty has no Doubt of your attention to the Security of the of the Colony under your Govt, & of the Disposition of His Faithful Subjects in New Jersey to concur with you in every Measure that would have been necessary for putting it into a State of Defence, in case the Issue of the Dispute with Spain had been contrary to his Majesty’s Expectation. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 274.]

William Franklin concurred with Witherspoon in that the citizens are only secure when “every measure” in the state of defense is taken in case of an attack.

In the historical blink of an eye, a mere 1222 days before Dartmouth’s Circular Letter, every measure for the State of Defence was concurred with. And Franklin was so aware of that the people of New Jersey were allowed to have arms in public, to protect themselves in case of a problem, that in a speech to the New Jersey Council and Assembly April 18th, 1771, only sixteen days previous to the State of Defence letter, Franklin spoke with an eerie foreshadowing,

During the late Prospect of a War, the defenceless State of this Province must no doubt have occurred to you, and to the People in general. His Majesty’s uniform Wishes to preserve the public Tranquility may not always be successful. A Time of Peace, however, is certainly the best Time to prepare for War*, and there is no knowing how soon an Event may happen. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 239-240.]

The * note in Archives of NJ on page 274 reads,

The reverend Aaron Burr, in “A discourse delivered in New-Ark, in New Jersey, January 1, 1755,” uses this expression (speaking of the threatened French War): “The way to have peace in the Present case, is to make a speedy and vigorous Preparation for War.”

In a speech to Congress, January 8, 1790, Washington put the same idea thus:

To be prepared for war is one of the most effectual means of preserving the peace.

The Latin proverb is, “Si vis pacem, para bellum.” New Jersey’s own delegate to the Constitutional Convention Jonathan Dayton would say the same thing on Saturday, August 18th 1787

“Preparations for war are generally made in time of peace;” [Elliot's Debates, Vol. 5, pg. 443.]

Aaron Burr, George Washington, Jonathan Dayton all wrote the same analogue as William Paterson in his 1793 Essay on a Well Regulated Militia,

To be prepared for war is the way to prevent it; to be ready in arms to meet and resist tyranny never fails to deter it approach. Tyrants dred freemen, when freemen not only have arms in their hands, but know how to use them. [See Blog 1]

Considering their place in History “at the time of the founding”, all of these writers make the Siccardi Rule's "specific threats or previous attacks demonstrating a special danger to the applicant's life" look highly unconstitutional. And Heller was all about how the Second Amendment was viewed “at the time of founding.”

In interpreting this text, we are guided by the principle that "[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning." United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 75 L.Ed. 640 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188, 6 L.Ed. 23 (1824). Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation. [Heller at 2788.]

Keeping in mind that Governor Franklin was speaking in 1771, “at the time of the founding”, one important feature of Franklin’s speech is that the head of the provincial New Jersey government admitted that the government may not always be able to protect the people. William Franklin’s words ring as clear today as New Jersey has likewise admitted that it too cannot always preserve the public tranquility,” if we consider New Jersey’s Tort Reform Act because, 

“the police are immune from liability for their failure to provide protection and failure to arrest or detain dangerous criminals. Instead the law recognizes that is each individual’s responsibility to effectively provide for their safety outside their homes, where the vast majority of violent crimes occur.” [See John C. Lenzen Liberizing the Concealed Carry of Handguns by Qualified Civilians: The Case for “Carry Reform Rutgers Law Review (Rutgers-Newark) Note, 47 (1995): 1503.]

If we look at Franklin’s last line of this paragraph we will see that “preparation” is a common thought of the founding generation. William Franklin’s speech continued,

This is therefore a Matter worthy of your particular attention. For my part, I know nothing we have to rely on, under God, for our Protection against the sudden Attempts of an Enemy, but the Regiment of Regulars which his Majesty has been so kind to afford us, and the Militia. [Archives of the State of New Jersey.1767-1776. First Series, Vol. X., Edited by Frederick W. Ricord and Wm. Nelson., Newark, NJ Daily Advertiser Printing House. 1886. Page 240.]

Did the royal governor say we can only rely on government regulars or government regulars and the militia? Between Witherspoon and Franklin, it is clearly evident that there was a right of citizens to bear arms in defense of the Colony and themselves “in case they should be reduced to defending themselves from murder and assassination.”

But the New Jersey Supreme Court maintained in 1971 that “(t)he common law did not recognize any absolute right to keep and bear arms.” [Burton v. Sills, 248 A. 2d 521 - NJ: Supreme Court 1968 at 96 citing Statute of Northampton, 2 Edw. III, c. 3 (1328)]

By placing reliance on the Statute of Northampton, the Burton Court was worse than wrong in claiming that there was no right to bear arms in public in New Jersey. William Paterson re-codified that Laws of New Jersey after the Laws of Allinson. Bouvier v. Baltimore & N. Y. R. Co., is a 1902 case from the New Jersey Court of Errors and Appeals, and while the case is about the transfer of a right of entry, it proves that the Statute of Northampton is bad law in New Jersey. The Court said:

… it was rightly hold in the supreme court that the English law against maintenance, is not in force in New Jersey. The opinion of Chief Justice Beasley in that case makes this very clear. He says: "By the act of November 24, 1792-(Pamph. L. 794), Judge Paterson was authorized to collect and put in form all the statutes of England and of this state which then remained in force here, and Mr. Griffith, in referring to the revision that was the result of this authority, says that the compiler ' omitted, as inapplicable, the English statutes relative to the buying and selling of titles (1 Rich. II. chap. 9; 32 Hen. VIII. chap. 9), as he did also those against maintenance. I Edw. III. chap.14; 20 Eliz. chap. 4, etc. Also of Champerty, 3 Edw. I. chap. 25; 28 Edw. I. chap. 11.' The question then arises, What was the meaning of this omission? I can perceive no other solution except the inference that Judge Paterson considered them neither a part of the statute law of this state nor as adapted to our circumstances. By the Constitution of 1776 it was declared, in article 22, ' that the common law of England, as well as so much of the statute law as have been heretofore practised in this colony, shall still remain in force, until they shall be altered by a future law of the legislature;' and when, therefore, this particular series of acts was not comprised in this accurate and authentic compilation of the laws in force, it seems manifest that such leaving out was a meditated exclusion. If it be said that such a rejection of the statute law did not affect the common law, and that by the common law maintenance was prohibited, my answer is that, since the publication of the body of selected laws just referred to, there is no trace of the prevalence of any part of such a doctrine, either in our practice, judicial dicta, or decisions. It is obvious that Mr. Griffith inferred that the entire doctrine of maintenance and champerty was thought by Judge Paterson to be 'inapplicable' to the polity of this state. And, although in some of the older legal digests and commentaries the doctrine of maintenance is said to be a part of the common law, nevertheless I am strongly of the opinion that it would be altogether impracticable to ascertain of what rules such doctrine consisted, as embodied in that ancient system.'' He then goes on, most eruditely, to show that there is the best, reason for believing that, although often spoken of as appears above by the old writers as part of the common law maintenance is entirely the creature of English statutory law, and of the judicial construction of such law, and that the consequence is that when this set of acts was designedly left out of our statute book there existed no rational ground for the contention that any part of the law of maintenance in any form remained in force in this state. [67 N.J.L. 281, 51 Atl. 781 (1902).]

While Bouvier v. Baltimore held that that the English law against maintenance, is not in force in New Jersey, in essence, for our purposes, the Court ruled that when Paterson revised the statutes of New Jersey, the omission of an English statute, was evidence that the English Common Law pertaining to such statute became inapplicable to the polity of this state. 

As Paterson’s Laws makes maintenance inapplicable so it does to make the Statute of Northampton inapplicable and  the view of the Bouvier v. Baltimore Court certainly holds merit, for in Paterson’s Laws, the only people forbidden to carry firearms in public were slaves, and that was only on Sundays. [See Paterson’s Laws, page 308. An ACT respecting slaves. Passed the 14th of March, 1798. “IX. And be it Enacted, That if any negro or other slave shall be seen…to hunt or carry a gun on the First day of the week, or Christian Sabbath, commonly called Sunday, any constable or person…is hereby authorized…to apprehend …such negro or slave…”]

The way the Courts read a law is if the law specified only Negros and slaves, and only on Sunday, the law recognized that everyone else could carry a gun seven days a week. 

Lest anyone think the term a well-regulated militia was invented by the Madison in the Second Amendment or even by George Mason in the Virginia Declaration of Rights in 1776.

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power. [13th clause.]

William Franklin was the Governor of New Jersey at time of Allinson’s Laws, the predecessor to Paterson's Laws and the laws that are to remain in full force unless incompatible with the 1776 Constitution.

That all the laws of this Province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this Colony (such only excepted, as are incompatible with this Charter) and shall be, according as heretofore, regarded in all respects, by all civil officers, and others, the good people of this Province. [XXI]

In The Speech of His Excellency William Franklin to the Gentlemen of the Council, Mr. Speaker, and Gentlemen of the Assembly dated, Burlington May 22, 1765, William Franklin would say,

A well regulated Militia is of the utmost Importance to the Security of the Inhabitants from foreign Invasions, and internal Commotions. [New Jersey Archives, First Series, Vol. XXIV Newspaper Extracts Vol. V 1762-1765. Pgs. 540 & 543.]

If George Mason used the analogue,

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power,

in the 13th clause of the VDR in 1776, and first used the terminology,

…that a well regulated Militia, composed of gentlemen freeholders, and other freemen, is the natural strength and only stable security of a free Government, [Rutland, R. A. (Ed.). (1970). The Papers of George Mason (Vol. 1). Chapel Hill: The University of North Carolina Press. Page 212.]

in the Fairfax County Committee of Safety Proceedings in January of 1775, how did William Franklin come to use the phrase a full ten years earlier in 1765 if it wasn’t a common law right of New Jersey citizens as per Burton?

In the Political Works of Andrew Fletcher, Fletcher wrote A Discourse of Government with relation to Militias that was printed in 1698 and Fletcher uses the term well regulated militia, not with a free government as Mason did in 1775, but closer William Franklin’s “Security of the Inhabitants from foreign Invasions and internal Commotions”

Let us now consider whether we may not be able to defend ourselves by well-regulated militias against any foreign force, though never so formidable: that these nations may be free from the fears of invasion from abroad, as well as from the danger of slavery at home. [Fletcher, A. (1997). Political Works. (J. Robertson, Ed.) Cambridge: Cambridge University Press. Page 19.]

Fletcher’s “fears or invasions” looks strikingly similar to the militia clause of Article 1 Section 8 to “repel Invasions”. But “the danger of Slavery at home” looks more like the Second Amendment than the Militia Clause’s “suppress Insurrections.”

However, in his Speeches by a Member of the Parliament, of 1703, Fletcher does lay the ground work for the 2nd.

We also know that a good and well regulated militia is of so great importance to a nation, as to be the principal part of the constitution of any free government. [Fletcher, A. (1997). Political Works. (J. Robertson, Ed.) Cambridge: Cambridge University Press. Page 166.]

In 1703, Andrew Fletcher used free government just like George Mason did in 1775 and well-regulated militia just like William Franklin in 1765. It appears that the free government of Fletcher and Mason has a lot more in common with the Security of the Inhabitants than the right of the States to arm their militia.

Nevertheless the New Jersey Citizens in 1765 were not defending from foreign invasions with 2C:58-3 Permits and their guns “in their homes.” In order to defend against and invasion the citizens must bear viz., carry their arms in public. And that is not just for invasions, that goes for internal Commotions i.e. enforcement of the laws as well. Any remaining claim that “the common law did not recognize any absolute right to bear arms” was just ousted like William Franklin by the New Jersey Militia at the onset of the Revolution.

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