SUPREME COURT OF THE STATE OF ARIZONA

ERNEST HANCOCK

Petitioner,CASE                                                             NO. CV-02-0161-SA

-Vs-

MARK KILLIAN – Director, Arizona Department of Revenue

ELLIOT HIBBS – Director, Arizona Department of Administration

JANE HULL – Governor of The State of Arizona

________________________________

Thomas Jefferson offered this wise advice to constitutional scholars, laymen, judges, and lawyers:

And this from James Madison:

Petitioner argues that not only has Respondent and its predecessors ignored the tenets of the Constitution: it has ignored the blackletter law, the case law, and the words of the Framers of Arizona’s Constitution; and furthermore, that preceding Supreme Courts have allowed this degradation.

Respondent misrepresents the classical American right to keep and bear arms merely as one that is "not an absolute right" under the common law. Petitioner here makes recourse to fundamental and historical principle concerning this right, according to the authority of Sir William Blackstone and Saint George Tucker. Blackstone on Arms for Self Defense:

Saint George Tucker contrasted the English right to arms with the American right. Tucker noted that the "right" was often only attainable by the rich land owners and were denied to outcast groups such as Catholics, just as southern states in America denied the right to keep and bear arms to blacks, thus resulting in the Freedmans Bureau Act of 1866 and later, the 14^th Amendment (see also Tennessee Law Review, Spring 1995 at 813).

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):

Petitioner maintains that Respondent’s vague yet all-purpose rationalization that the right to keep and bear arms (RKBA) is "not an absolute right" is a legal sleight of hand. Its purpose is to misdirect the court from the crucial question of what level of government interest or judicial scrutiny (if any) must be present before this right may be denied, disabled, infringed upon or impaired; and whether a lower level of scrutiny appropriate to an individual defendant being prosecuted under the protections of due process are nevertheless unsuitable to be applied to the general public in the form of legislation or regulation, when the general public are neither the beneficiaries of due process protection nor have they been accused of specific wrongdoing.

Petitioner regrets that history clearly shows that the state and its offices and subdivisions cannot be trusted to regulate a "non-absolute" RKBA in a "reasonable" manner:

1) Law clearly written to protect the rights of Arizona residents and to maintain an illusion of reasonableness has been "reinterpreted" by the courts into nonsense and non-existence (see McMann v City of Tucson 2002).

2) The existence of statutes to protect the RKBA are immaterial when the Executive Branch can willfully ignore them (as in this very case) under the claimed fallacy that since Arizona’s Constitution allows individual gun rights to be regulated, and since the regulation in question is a regulation, it is therefore automatically constitutional and permissible.

3) When the Judiciary does not agree with a legislated protection, they simply overrule it. (Mann v City of Tucson 2002, City of Tucson v. Rineer, 193 Ariz. 160, 163, 971 P.2d 207 (App. 1998))

4) Finally, should a Petitioner occasionally win on the merits of a case, the judiciary can effectively bury the decision so that it forms no precedent (see Ziskus v Symington).

The Petitioner has made it clear that his right to Keep and Bear Arms was in fact denied him by the Respondents, and the Respondents have stipulated to that fact in their response on page 5 in their Statement of Facts. The Respondents also make it very clear that they intend to do so in the future to anyone in similar circumstances. On page 6, paragraph 1, the Respondents state that the state has proper authority to refuse Petitioner entrance to a public building while in possession of a firearm. In fact it is the position of the Respondents (Page 6 paragraph 2) that it is a legitimate governmental purpose to regulate the right to bear arms and cites case law in support of that claim. On page 7 paragraph 1, the Respondents would have the court support their claims that the government has an obligation to protect the safety and welfare of the public without any supporting documentation that such an obligation exists.

Since as early as 1856 (South v. Maryland, 59 US 396) it has been recognized that government has no legal obligation to protect individuals Numerous other cases since that time have reinforced this concept:

In Riss v City of New York, Linda Riss phoned the police saying that her estranged husband called and said he would be driving over to harm her. The police told her to call back when he arrived. He poured lye on her face. She sued the city, and lost:

Zelig v. County of Los Angeles (Slip Op. S081791 (Cal., May 20, 2002)), decided just last month, specifically maintains that government is not even responsible for the safety of victims within government facilities (in this case, a courthouse) where these victims have been disarmed under color of law for "safety" reasons:

Petitioner maintains that in the absence of any legal duty or responsibility by government to provide for or ensure the protection of the individual citizen, the government is legally and morally required to allow the citizen to exercise his own natural and constitutionally guaranteed right of self-protection, which includes the carriage of weapons.

Nowhere in Respondent’s argument is any attempt to refer to any evidence or study that would support Respondent’s claim that in the event the state was obligated to protect the public’s safety and welfare, that regulating the right to bear arms serves the public or the individual.

Petitioner maintains the position that not only is it the state’s function to defend every individual’s right to keep and bear arms, it is the very protection of this right that best serves the public’s safety and welfare.

Respondent would also have this court support the claim (page 7 paragraph 2) that Article 2 Section 26 focuses on the right to possess weapons for self-defense and that this language suggests regulation is permissible. Petitioner maintains that Respondent’s stated intent to disarm Petitioner clearly leaves him without a "weapon for self-defense."

Petitioner is unable to find where in Art 2, Sect 26, such a power is granted to the legislature or any branch of government. Even if it were, the Court must apply the strictest scrutiny to such a claim.

There is no compelling need for the Department of Revenue to ban citizens or employees from entering government buildings while armed and the Respondents have made no supported claim that employees or Arizona residents are in any way more secure when they are required to be disarmed prior to use of this public facility.

For Respondents to relieve the Petitioner of his ability to defend himself while removing any responsibility for Respondents to provide for the Petitioner’s security is an excellent example of a government gone very bad bad bad.

Respondent claims that the compelling end is to enhance security; yet the only incident of an attack on a Department of Revenue employee occurred when an unarmed employee was attacked by her estranged spouse.

Respondents make the claim that they are not in violation of the Enabling Act, the Declaration of Independence, the united States Constitution or the Arizona State Constitution, because the disarming of the Petitioner while entering a public structure is part of the Respondent’s ability to place "…reasonable and limited restriction on his [Petitioner’s] right to bear arms…". It is this claim by the Respondents that is in question.

Petitioner’s argument is that the Enabling Act, The Declaration of Independence, The united States Constitution and the Arizona State Constitution are very clear in their prohibition against the State government’s wish to place any "reasonable" and/or "limited" restrictions on Petitioner’s ability to self-defense. Conversely, Respondent would have this court support the idea that the Respondents are to be the entity that determines what is and is not "reasonable."

Petitioner here asks the court to heed Jefferson’s admonition to honor the intent of the constitutional framers by referring to the text of the debates of the Arizona Constitutional Convention of 1910 (found in The Records of the Arizona Constitutional Convention of 1910 Pages 678 and 679, edited by: John S. Goff, a copy of which can be found in the Law Library of The Supreme Court of Arizona), an excerpt of which appears in the appendix. From the Arizona State Constitution:

(What today is Section 26 was then Section 32, but it was worded then as it is now.)

Before final acceptance of the language of the original Section 32, amendments were solicited from the delegates. Two individuals moved to amend Section 32. One wanted to alter the Section to read:

Petitioner asks the court to note that this motion failed.

Another suggested amending the Section thusly to allow the Legislature to prohibit the carrying of concealed (as opposed to open) weapons:

Petitioner asks the court to note that this motion failed as well.

Petitioner maintains that the intent of the creators of the provision for the right to keep and bear arms in the state constitution is entirely unambiguous, and that the right itself as stated is clear, and is neither so complicated nor so incoherent as to be misinterpreted by even the least sophisticated citizen.

In light of this clear intent, Petitioner asks from where the State Legislature, the Executive, or the Judicial branch gain its assumption of power in this area? The Petitioner rightly maintains that such a grant of power does not and never has existed. Any argument that would claim Territorial limitations on the Right to Keep and Bear Arms are somehow forwarded need only read the aforementioned provisions of the Enabling Act. Arizona’s Constitution renders null and void any such law that is "repugnant to the Constitution," as Article 2, Section 26 and its draft history clearly demonstrates this.

Relatedly, the Respondent and others enjoy citing Dano v Collins as reason to charge that the regulation of many gun rights (such as concealed carry) is constitutional. It is worth noting that Dano v Collins, scheduled to be heard by the Arizona Supreme Court at ASU’s College of Law, was suddenly cancelled after a voluminous and comprehensive Amicus brief was received from Bob Corbin and Bob Dowlut reflecting major historical research on the constitutional convention, and dealing in detail on the question of what the second half of Section 32 was really about. The Justices suddenly reneged on their commitment to hear the case on the basis that hearing it had become "improvident." Petitioner wonders how defending the rights of Arizona Citizens could ever be "improvident."

Respondent also goes on to misquote (or fail to quote) several federal court cases. Respondents cite United States v. Miller 307 US 174 (1939) without making even the slightest connection as to how it applies to Petitioner’s complaint.

Here is the most telling, and least cited, passage from Miller:

This gives powerful support to the individual RKBA, especially when one understands that Miller was never convicted of any charges and was entirely without representation before the Supreme Court, who heard only the government’s argument.

The rights protected by the Second Amendment are as technology-independent as the rights protected by the First Amendment. The First Amendment protects not just quill pens and printing presses, but fax machines and computers. As well, the arms of the Revolutionary period were rifled flintlocks. These evolved to cap locks, cartridge rifles, repeating rifles, semi-auto and full auto weapons, all of which were first owned by private citizens, not government troops. The Minuteman had his musket. The 21^st Century American Citizen is entitled to his M16 or M14.

Respondent cites Tot, a lower federal court case that postdates Miller by three years. That court suggests that the Framers considered the Second Amendment not to protect an individual right. This contention is utter nonsense, not supported by Miller, Federalist 28, 29, or 46, or any other writing of the Founding Fathers. As well, it is contrary to the extensive treatment given the Second Amendment by the Fifth Circuit Court of Appeals in US v Emerson (2001).

That Respondents’ belief that nearly any law regulating the RKBA is constitutional flies in the face of every known writing of our Founders, and Respondent can find none from that era who would agree with the anti-individual rights position. That there is no appreciable RKBA flies in the face of even Dred Scott v Sanford (60 US 393 (1856)) which ruled:

Based on the foregoing arguments, The Supreme Court of the State of Arizona has the ability to accept jurisdiction and should. Petitioner then maintains that granting Petitioner relief is the Constitutional duty of the Supreme Court of the State of Arizona.

Respectfully submitted this 6^th day of June, 2002, by:

The Records of the Arizona Constitutional Convention of 1910

Pages 678 and 679. Edited by: John S. Goff (C) The Supreme Court of Arizona

Mr. Chairman: Are there any objections or corrections to Section 32?

Mr. Baker: Mr. Chairman, I move to strike out all of Section 32. I never in all my life found it necessary to carry a six-shooter and I have passed through nearly all the scencs (sic) and experiences of this wild and unsettled country. Carrying arms is dangerous. It is a very dangerous thing to oneself and to one’s associates and should not be permitted under any circumstances. I have seen lives lost and innocent blood spilled just through

the carrying of arms, concealed weapons under one’s coat or shirt. It is most dangerous and vile; a practice that should never be permitted except in times of war and never in times of peace. Think of it; carrying a six shooter or a knife or some other terrible arm of defense, and then in a moment of heated passion using that weapon. I do not believe in it and I move to strike out that section.

Mr. Webb: I second that motion for I agree with the gentleman from Maricopa that it is a pernicious thing and should not be included in this bill. I, too, in all my experiences, have never seen the time when it was necessary to carry concealed weapons except in times of Indian troubles, and have had many and varied experiences, in cow camps. I have been in many places where some might deem it necessary to come armed, but I did not, nor do I believe it necessary to do so now. We are no longer a frontier country, and if we did not need arms in the early days of pioneering in this country, we do not now, and I second the motion.

Mr. Crutchfield: I move to amend by inserting after the word "impair" in line 9, page 7, the following words: "...but the legislature shall have the right to regulate the wearing of weapons to prevent crime."

Mr. Baker: That is all right and I second the motion.

Mr. Parsons: Mr. Chairman, I move to amend by striking out all of Section 32 and substituting the following in lieu thereof: "The people shall have the right to bear arms for their safety and defense, but the legislature shall regulate the exercise of this right by law."

Mr. Feeney: I second that motion.

Mr. Chairman: The question comes up on the amendment offered by the gentleman from Cochise, Mr. Parsons, to strike out Section 32, and insert in lieu thereof his amendment. Those in favor of this motion answer "aye", opposed "nay". The motion is lost. The question now comes up on the amendment offered by Mr. Crutchfield to insert after the word "impaired" in line 9, page 7, the following words: "...but the legislature shall have the right to regulate the wearing of weapons to prevent crime." Those in favor of this motion answer "aye", opposed "nay". The secretary will call the roll.

Roll Call showed 22 "Ayes" 23 "Nays".

Mr. Chairman: The motion is lost, and Section 32 will stand approved as read unless there are other amendments. Are there any objections to Section 33?

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Whose text was used in law schools in the later 19^th century? It is called the "General Principles of Constitutional Law" by Thomas Cooley. Said Cooley, "The right of self defense 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."

Further, "The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon...If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet in voluntary discipline in arms, observing in so doing the laws of public order."

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William W. Rawle, A View of the Constitution 125 (2d ed. 1829). was the author of "A View of the Constitution of the United States of America." His work was adopted as a constitutional law textbook at West Point. He is quoted by Stephen P. Halbrook in "That Every Man Be Armed: The Evolution of a Consitutional Right" as follows.

"In the Second Article, it is declared that a well regulated militia is necessary to the security of a free state: a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable, yet ... the militia form the palladium of the country .... The corollary from the first position is, that the right of the people to keep and bear arms shall not be infringed. THE PROHIBITION IS GENERAL. NO clause in the Constitution could by any rule of construction be conceived to give Congress a right to DISARM THE PEOPLE." Such a flagitious attempt could only be made under some general pretence by a state legislature. But, if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

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Cesare Beccaria, an Italian criminologist and penal reformer, translated by Jefferson and distributed to his contemporaries in his "Common Place Book," is instructive on today’s debate as well as the Framer’s original intent.

"False is the idea of utility that sacrifices a thousand real advantages for one imaginary or trifling inconvenience; that would take fire from men because it burns, and water because one may drown in it; that has no remedy for evils except destruction. The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes. Can it be supposed that those who have the courage to violate the most sacred laws of humanity, the most important of the code, will respect the less important and arbitrary ones, which can be violated with ease and impunity, and which, if strictly obeyed, would put an end to personal liberty --so dear to men, so dear to the enlightened legislator-- and subject innocent persons to all the vexations that the guilty alone ought to suffer? Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. They ought to be designated as laws not preventive but fearful of crimes, produced by the tumultuous impression of a few isolated facts, and not by thoughtful consideration of the inconveniences and advantages of a universal decree."

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Of the Bill of Rights which included the Second Amendment: William Grayson of Virginia wrote to Patrick Henry, "...a string of amendments were presented to the lower House; these altogether respected personal liberty." June, 1789.

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Tench Coxe, a friend of Madison’s wrote the following glowing report of the Second Amendment, "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." Philadelphia Federal Gazette, June 18, 1789. Madison later read these words and wrote back to Cox, "...the printed remarks I already find in the gazettes here...be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the cooperation of your pen.

Coxe, like the rest of our Founding Fathers was not Johnny-come-lately to this issue. The following words were written prior to the Constitutional Convention:

"The militia, who are in fact the effective part of the people at large, will render many troops quite unnecessary. They will form a powerful check upon regular troops, and will generally be sufficient to over-awe them. Who are the militia? Are they not ourselves? Congress have no power to disarm the militia. Their swords and every other terrible implement of the soldier are the birthright of an American...The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people."

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Samuel Adams: "The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Massachusetts’ U.S. Constitution ratification convention, 1788.

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Noah Webster, Pennsylvania: "Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense raised in the United States..."

"Leading Principles of the Federal Constitution, Philadelphia," 1787.

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Alexander Hamilton in Federalist #28: "If the representatives of the people betray their

constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state."

Hamilton in Federalist #29: "If circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people while there is a large body of citizens, little if at all inferior to them in discipline and the use of arms, who stand ready to defend their rights and those of their fellow citizens."

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James Madison in Federalist #46: "[A standing army should not be feared since] This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.

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