[Cite as Brown v. Walker, 161 U.S. 591 (1896). NOTE: This decision concerns freedom from self-incrimination. The opinion of the Court refers to the right to arms among other individual rights: "As the object of the first eight amendments to the Constitution was to incorporate into the fundamental law of the land certain principles of natural justice which had become permanently fixed in the jurisprudence of the mother country, the construction given to those principles by the English courts is cogent evidence of what they were designed to secure and of the limitations that should be put upon them." (P. 600) Justice Field's dissent says likewise, "The freedom of thought, of speech, and of the press; the right to bear arms; exemption from military dictation; security of the person and of the home; the right to speedy and public trial by jury; protection against oppressive bail and cruel punishment, are, together with exemption from self-crimination, the essential and inseparable features of English liberty. Each one of these features had been involved in the struggle above referred to in England within the century and a half immediately preceding the adoption of the Constitution, and the contests were fresh in the memories and traditions of the people at that time." (P. 635 this page) It should be noted the cited Supreme Court decision in Boyd v. U.S. does not contain the comment regarding the Second Amendment. The U.S. Reports version of Brown has Justice Field making this attribution to Justice Bradley in Boyd v. U.S. The Supreme Court Reports version of Brown appears to be corrected and attributes the quote: "As said by counsel for appellants:..." with no cite to Boyd. It appears that Brown was the result of either an error by Justice Field, or the court reporter, which was later corrected by West publishing. The same right to arms passage with erroroneous attribution is found in Salter v. State, 2 Okla. Crim. 464, 479, 102 P. 719, 725 (1909).]
[Brown v. Walker continued
Return to pages 591-609 (Opinion of the Court).
Return to pages 610-627 (Shiras, Gray and White dissent).
Return to pages 628-634 (Field dissent).
Currently at page 635 (Field dissent cont.).
Proceed to pages 636-638 (Field dissent cont.).]
[paragraph continued from previous page] case, he may be questioned as to his apprehension of criminating himself by his answer, but no further.
The position that if witnesses are allowed to assert an exemption from answering questions when in their opinion such answers may tend to incriminate them, the proof of offence like those prescribed by the Interstate Commerce Act will be difficult and probably impossible--ought not to have a feather's weight against the abuses which would follow necessarily the enforcement of criminating testimony. The abuses and perversions of sound principles which would creep into the law by yielding to arguments like these--to what is supposed to be necessary for the public good--cannot be better stated than it was by the late Justice Bradley in Boyd v. United States, 116 U.S. 616, 635. Said the learned justice:
"Illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than substance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon. Their motto should be obsta principiis."
And the same great and learned justice adds:
"The freedom of thought, of speech, and of the press; the right to bear arms; exemption from military dictation; security of the person and of the home; the right to speedy and public trial by jury; protection against oppressive bail and cruel punishment, are, together with exemption from self-crimination, the essential and inseparable features of English liberty. Each one of these features had been involved in the struggle above referred to in England within the century and a half immediately preceding the adoption of the Constitution, and the contests were fresh in the memories and traditions of the people at that time." Boyd v. The United States, 116 U.S. 626.
[Return to pages 591-609 (Opinion of the Court).
Return to pages 610-627 (Shiras, Gray and White dissent).
Return to pages 628-634 (Field dissent).
Currently at page 635 (Field dissent cont.).
Proceed to pages 636-638 (Field dissent cont.).]