The Brady Center to Prevent Gun Violence filed a federal lawsuit against the city of Nelson, Georgia yesterday. The Brady Center is filing on behalf of one of its members who lives in Nelson, Harold Lamar Kellett, although Mr. Kellett is not actually a named plaintiff in the case. According to the lawsuit, Mr. Kellet was forced to purchase a Remington 1911 pistol and a box of ammunition to satisfy the city ordinance because he does not qualify for any of the exemptions in the ordinance. The penalty for violating the ordinance is a $1000 fine and up to a year in jail.
The lawsuit is being handled by five lawyers from Washington, DC, and prominent Atlanta attorney Peter Canfield.
The allegations of the complaint contend that the ordinance violates the Second Amendment’s protection of the right to keep and bear arms, because, according to the Brady Center, the right to keep and bear arms involves the freedom to decide that one may more effectively defend his home by not permitting an operable firearm to be inside of his home.
The lawsuit seems to miss the point of the ordinance, however. Nowhere is the ordinance aimed at merely “defending the home.” Rather, the ordinance is an emergency management ordinance for a city with only one police officer who works for eight hours of the twenty four hour day, five days a week. The legislative history of the ordinance shows its purpose as “emergency management and general safety of the city.”
The text of the ordinance states:
In order to provide for the emergency management of the city, and further in order to provide for and protect the safety, security and general welfare of the city and its inhabitants, every head of household residing in the city limits is required to maintain [a] firearm, together with ammunition thereor.
There are exceptions for those who conscientiously object, as well as felons and those with physical or mental disabilities preventing them from complying with the ordinance.
Such emergency management laws were once very common in the early history of the United States, and never before has it been contended that such a law violates the Second Amendment to the United States Constitution. Indeed, the persons who wrote and ratified the Second Amendment were familiar with colonial laws requiring ownership of weapons and imposed their own requirements to own weapons soon after adoption of the Second Amendment.
Here in colonial Georgia, colonists were required to bring an operating firearm to church, and the government imposed fines for failure to do so or upon inspecting the firearm and discovering that it was inoperable. As stated by the United States Supreme Court in the District of Columbia v. Heller case:
Many colonial statutes required individual arms-bearing for public-safety reasons—such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public worship.” 19 Colonial Records of the State of Georgia 137–139 (A. Candler ed. 1911 (pt. 2)) (emphasis added).
Georgia was in no way unique. Almost all of the original colonies required citizens to own firearms and ammunition, and many required them to carry them to certain events, such as places of worship or militia call up, under penalty of a fine. Colonial Georgian males from the ages of 16 to 60 were required to keep a musket, ammunition, powder, and tools for using and maintaining the firearm. Militia officers were empowered to inspect the firearms at residences up to six times annually, in addition to inspection at musters, with fines for failure to produce a working firearm.
The first Militia Act, passed by Congress in 1792, applied similar mandates to males from the ages of 18 to 45, requiring each one to “provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, . . . not less than twenty four cartridges, suited to the bore of his musket or firelock . . . or with a good rifle . . . and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder.” Officers were required to purchase a pair of pistols and ammunition.
In other words, Nelson’s ordinance is, while somewhat unusual today, quite in keeping with the vision of the persons who wrote and ratified the Second Amendment. Such laws were historically not only universal in this country, but actually enforced, with no exceptions for felons and conscientious objectors.
The Brady Center to Prevent Hangun Violence lawsuit seeks to turn American history and constitutional law upon its head.