State v. Buzzard/Separate Lacy
By LACY, J.
The defendant in the court below stands indicted by virtue of the authority of the 13th section of an act of the Legislature, prohibiting any person wearing a pistol, dirk, large knife, or sword-cane, concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment. Rev. Stat., p. 280.
The question now to be determined is, does this provision of the statute violate the second article of the amendments to the Constitution of the United States, or the 21st section of our Bill of Rights? The language in both instruments is nearly similar: the two clauses are as follows: "That a well regulated militia being necessary for the security of a free State, the right of the people to keep and bear arms shall not be infringed." "That the free white men of this State shall have a right to keep and bear arms in their common defence." The inquiry is restricted to a single point; but it is not, on that account, wholly free from difficulty. Several of the highest courts of the Union have adjudged it differently, upon the construction of statutes every way like our own; and their opinions are entitled to due consideration. The Court of Appeals of Kentucky has settled the principle against the constitutionality of the act now in question; and in this opinion, if I am not mistaken, the Supreme Courts of Tennessee and Mississippi have concurred. The Supreme Courts of Alabama and Indiana have held a contrary doctrine. They have maintained that the Legislature has the power of prohibiting, by law, the citizen front wearing concealed weapons. I know of no opinion ever delivered of the Supreme Court of the United States, bearing directly upon the point. The question, then, so far as this State is concerned, may be regarded open for investigation, and now brought up for adjudication upon error, for the first time. Both of my brother Judges have just pronounced separate opinions, each maintaining the constitutionality of the act. In their opinions, and the reasons upon which they are based, if I correctly comprehend them, they assert these general propositions: That all just and well regulated governments are instituted for the purpose of establishing justice, preserving domestic tranquillity, providing the necessary means for common defence, securing public liberty, and promoting the general welfare: That, to enable them to perform these high and indispensable obligations, the governments themselves inherently possess, as a portion of their sovereignty, all powers not expressly or necessarily prohibited from them by the grants of their creation: And that, under our frame of government and laws, every citizen has ample remedy and redress for a violation of all his private rights, by means of the public authorities, and to them he is bound to appeal: That the right of the people to keep and bear arms is restricted by the clause of the Constitution before quoted, and limited to the uses and objects therein specified: That it is given for the protection of public liberty, and for common defence; and that the right itself is subject to legislative control: That the words "a well regulated militia being necessary for the security of a free State," and the words "common defence," clearly show the true intent and meaning of these constitutions, and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then, the people, neither individually nor collectively, have the right to keep and bear arms. Now, I take the expressions "a well regulated militia being necessary for the security of a free State," and the terms "common defence," to be the reasons assigned for the granting of the right, and not a restriction or limitation upon the right itself, or the perfect freedom of its exercise. The security of the State is the constitutional reason for the guaranty. But when was it contended before, that the reason given for the establishment of a right, or its uninterrupted enjoyment, not only limited the right itself, but restrained it to a single special object? According to this construction, the right itself is not only abridged, but literally destroyed; and the security of a free State is made to depend exclusively and alone upon the force of the militia. And, in the opinion of one of my brother Judges, it is the militia alone who possess this right, in contradistinction from the mass of the people; and even they cannot use them for private defence or personal aggression, but must use them for public liberty, according to the discretion of the Legislature. According to the rule laid down in their interpretation of this clause, I deem the right to be valueless, and not worth preserving; for the State unquestionably possesses the power, without the grant, to arm the militia, and direct how they shall be employed in cases of invasion or domestic insurrection. If this be the meaning of the Constitution, why give that which is no right in itself, and guaranties a privilege that is useless? This construction, according to the views I entertain, takes the arms out of the hands of the people, and places them in the hands of the Legislature, with no restraint or limitation whatever upon their power, except their own free will and sovereign pleasure. Are great affirmative grants of political powers to be determined by this technical rule of verbal criticism? If so, its rigid application to other portions of the Constitution would erase from its pages many of its most important and salutary provisions. Such a principle, I apprehend, should never be recognized or adopted by any judicial tribunal, in determining the inherent and original rights of the citizen. It goes to abridge, instead of enlarging the constitutional guaranties of personal liberty.
If the Legislature have the custody of the people's arms and the treasury of the State, what becomes of the separation and division of the political powers of the government? Are not those powers united in the same body of magistracy? And if this be the case, the balance of the Constitution is overthrown, and the State then possesses no real security for personal liberty. It is no answer to this argument, to say that the people may abuse the privilege or right of keeping and bearing arms. The Constitution thought and ordained it otherwise; and therefore it was deemed far safer to entrust the right to their own judgment and discretion, rather than to the will or ambition of the Legislature; and this right was excepted out of the general powers of the government, and declared inviolate. Now, if the Legislature had the right to forbid the people from keeping arms secretly, may they not prohibit them from carrying them openly or exposed? and if they could do this, may they not appoint the times and places when and where they shall be borne? And as the construction relied on assumes the principle that they can only be used for a specific and single purpose, then of course the whole subject matter, in regard to keeping and bearing either private or public arms, falls within the power of the Legislature, and they can control or regulate it in any manner that they think proper. This principle I utterly repudiate. I deny that any just or free government upon earth has the power to disarm its citizens, and to take from them the only security and ultimate hope that they have for the defence of their liberties and their rights. I deny this, not only upon constitutional grounds, but upon the immutable principles of natural and equal justice, that all men have a right to, and which to deprive them of amounts to tyranny and oppression. Can it be doubted, that if the Legislature, in moments of high political excitement or of revolution, were to pass an act disarming the whole population of the State, that such an act would be utterly void, not only because it violated the spirit and tenor of the Constitution, but because it invaded the original rights of natural justice? Now, if they are private and not public arms, the Constitution guaranties the right of keeping and bearing them.
The people are secured in their persons, houses, papers, and effects, against unwarrantable searches and seizures; but on probable cause, supported by oath or affirmation. Now, if the Legislature possesses the power claimed for it, it surely has the means of carrying it into effect. Can it, directly or indirectly, invade the sanctuaries of private life and of personal security, by authorizing a public inquisition to search for either open or concealed weapons? Besides, private property cannot be taken for public uses, without due compensation being first made according to law. A man's arms are his private property: how, then, can he be legally deprived of them? If they can forbid him, under the penalty of fine and imprisonment, to keep them concealed or exposed about his person, or on his own premises, although their unrestrained use may be necessary for all the purposes of his ordinary business and of personal defence, then certainly the right of keeping and bearing arms according to his own discretion, is infringed and violated, and his own free will in the management of this property abridged and destroyed.
If it means the public arms, then full power is given by the Constitution to Congress to organize and arm the militia, and prescribe rules for their use and regulation, when mustered into the service of the United States. Now, as full power is given to Congress over the subject, and the same power belongs to the State, which power shall be paramount, and to which of the two governments is entrusted the common defence of the country? Is the grant of the State Constitution void, being repugnant to the Constitution of the United States, or does it abrogate and annul that power? These are questions that are to be found difficult to answer; and I leave their solution to others. But I think it is a fair inference, to presume that any construction, which leads to such consequences, is very likely to be erroneous. I have always been taught to regard the Federal and State governments as indissolubly connected together, and that their mutual powers and authority acted in perfect harmony and in support of each other, like the great principles incorporated by their enactments. According to the construction I design to give, there can be no conflict between these jurisdictions, nor any discrepancy arising from their action. I hold the doctrine that the Constitution of the United States, and the laws passed in pursuance of its authority, are supreme; and that all State constitutions and laws repugnant to them, are utterly null and void; and that the Constitution and laws of the Federal Government operate directly upon the people and the States, and all are bound to respect and obey them. Again; who compose the militia? Has not the State a right to designate what part or portion of her citizens shall constitute this military corps? Then she can, by indirection, arm only those who are in her interest, or who are swayed by her ambition; and, by denying arms to every other class of her citizens, may she not subjugate the liberties of all, by the very means the Constitution gives for their protection and defence?
By way of testing this principle, suppose the Legislature pass an act, that a man should not keep private arms in his own house secretly, or about his person concealed, although they should be every way necessary, in defence of his life, liberty, or property. Can it be doubted that such an act would be a palpable infraction of the Constitution, as well as an invasion of the natural rights of society? Has not every man a natural and an unalienable right to defend his life, liberty, or property, when a known felony is attempted to be committed upon either by violence or surprise? Can any laws deprive him of this right? Upon what principle has he a right to use force to repel force, and even to slay the aggressor, if he cannot make a successful repulsion otherwise? The laws of the land being unable to protect him, the laws of nature step in, and authorize him to defend himself. Now, it has been often ruled, by the Courts of England, that an act clearly against the laws of natural justice and equity, is not binding; and that if Parliament, which is omnipotent in every thing, pass such acts, they are presumed to have intended no such outrage or wrong. To put this case in its true light—suppose a citizen of the State were indicted upon a charge of murder, and he could make out a clear case of justifiable homicide, the laws of nature, upon which the laws of society are presumed to be based, instead of punishing, commends him for the act; of course, he stands acquitted of all blame; but, on the trial, the evidence shows that he was compelled to take life with a concealed weapon, and the State thinks proper to indict him for this new offence, which is forbidden by an act of the Legislature; and the proof being clear upon the point, of course he may be convicted and rendered infamous for life. What then becomes of the right of self-defence? Is it not swept away from him by legislative discretion, and the doctrine of self-preservation destroyed, which nature has implanted in the breast of every living creature, and which no laws, either human or divine, can abrogate or annul? In such a case, could there be any hesitation in pronouncing the act that punished him for protecting his own life, absolutely null and void? I think not. All the authorities, upon natural as well as constitutional law, support and prove this position. Would the act forbidding a person to carry concealed weapons be constitutional if he used them in self-defence, and unconstitutional if he did not use them at all, or kept them in a secret manner? If that be the case, then it is the intent, and not the fact of carrying concealed weapons, that wakes the law either void or valid. Can so fluctuating a rule be the standard by which to test the constitutionality of the acts of the Legislature? I maintain that the simple fact of a man's keeping and bearing private arms, whether concealed or exposed, is an act innocent of itself, and its freedom secured from all legislative interference. The act being innocent and allowed, cannot be made penal, or prohibited by law. The existence and freedom of a right is one thing, and the culpable and criminal use of it another add a wholly different thing. A right, in itself innocent and guarantied by law, cannot be made illegal or punished as a crime; and the error into which the Court has fallen in the present instance, seems to me to result from confounding these two things, which are wholly separate and independent of each other.
I admit that it is somewhat difficult to determine the exact point where the freedom of a constitutional right stops, and where legislative regulation begins. I take this distinction, however, to run through the whole class of cases; that if the right be innocent of itself, it cannot be interdicted; but its unlawful exercise, degenerating into licentiousness, is subject to regulation. The principle assumed in this case is, that the fact of private arms being worn concealed is a criminal offence, and capable of being controlled by the Legislature, and that they alone have the right to judge of its criminality. The propositions I do not believe, nor can I subscribe to them. It is true that the Legislature must judge, in the first case, whether the unrestrained freedom or use of a constitutional right is criminal or not; but having passed upon the subject, it then belongs to the Judiciary to examine the question, and to declare the rule of action in regard to it. The citizen, in this instance, complains that his liberty has been improperly restrained, and he has appealed to the Judiciary to shield him from this act of legislative injustice. That department is the last arbiter of his rights; and the point to be settled is, has the Legislature judged wrongfully, or is the mere fact of a person's keeping his private arms concealed, an offence against the State, and liable to be controlled by legislative discretion?
I maintain that the act is not only lawful, but expressly secured by the Constitution, and of course cannot be controlled by ordinary legislation. I admit that, if a man uses his arms improperly, or in an unlawful manner, then it is competent for the Legislature to punish him for the improper and illegal use of them; and it is right to do so; for every one is bound so to exercise his own rights, as not to prejudice those of others. The Legislature, in doing this, does not punish an innocent act, but an unwarrantable one: it does not abridge a natural and constitutional right, or in any manner interfere with its freedom. It merely punishes an unlawful use of a right; and it can do that only when the party has committed, with his own arms, unauthorized aggression upon the person or property of another. And the rights of the Constitution are guarantied upon this principle—that while their perfect freedom and enjoyment are secured, the Constitution utterly forbids any licentious or criminal indulgence in their exercise; for when that is the case, they can no longer be said to be the perfect and inviolable rights of the Constitution, but the unlawful and unauthorized acts of individuals. For example: The freedom of the press, the liberty of speech, and the sacred inviolability of private contracts, and free toleration in religion, are secured to all men. Still, any one or all these rights may be abused or perverted, and the true object or design of the Convention defeated. But does that authorize the Legislature to place restraints or interdicts upon the rights themselves? Certainly not. Such a power will give therm up to the discretion of the Legislature, and take them clearly out of the Constitution. They certainly cannot be infringed or violated, or their obligations or value weakened or impaired. A law declaring that a man might write or speak what he pleased, but should not publish or circulate what be had spoken or written; or that he should worship his Creator only on certain days and at appointed places, would surely be unconstitutional, because it would destroy the freedom and sacredness of these rights. But should he, in the exercise of them, commit any unlawful act, and prejudice the rights of others, then he would be answerable for their unwarrantable use and indulgence. For instance, if in writing or speaking, or in the exercise of his religious opinions, he should prejudice or injure the rights and liberties of others, then this wilful perversion or abuse of these rights becomes a criminal act, and consequently should be controlled. The liberty of speech and of the press, and the freedom of religious toleration, are utterly incompatible, in the true constitutional meaning of those terms, with their licentiousness or criminal indulgence; and these latter or improper acts are in no manner connected with the invaluable franchises out of which they flow. Now, the right of the people to keep and bear arms is as free and unfettered, and as inviolable and important, as the liberty of speech and of the press, or the freedom of religious toleration; and it stands upon precisely the same constitutional ground, and supported by like reasons.
Sic utere tuo, non lœdas alienum, is a maxim that runs through the whole body of the English common law, and pervades every part of our entire system of jurisprudence. Our Constitution and laws, construed by this principle, cause all the great and essential rights of civil and religious liberty to coalesce and blend together for the improvement and happiness of our species. If it is disregarded or overlooked, the constitutional guarantees become contradictory or hostile to each other: thence the necessity and importance of the rule in the construction of all laws. The application of this governing rule in the construction of laws, demonstrates and explains the reasons why it would be unlawful so to keep arms or ammunition of any kind, as to endanger the lives or property of others; and it solves the supposed difficulty, that if there is no limitation or restriction of the power of keeping and bearing arms, then the State has no authority to disarm a criminal for any offence whatever. When a citizen breaks his covenant with his government, he forfeits the protection, of her laws; and of course this supersedes or destroys many of his municipal rights and political franchises, which he otherwise would be entitled to receive at her hands.
It is further contended that the right should be restricted, because it is given alone for the security of a free State, which means nothing more or less than the defence of public liberty. Now, what constitutes the security of a free State, or what is public liberty? Does the security of a free State consist alone in repelling foreign aggression, or quelling domestic insurrection? How is the public liberty of a State to be preserved, and what is it? These inquiries seem to me to lead to different results, as we view the subject from different points. The security of a free State, as I imagine, depends not only in upholding all its political institutions, but in sacredly performing all its legal and constitutional obligations, both to the Government and to the people. Public liberty can only be secured and perpetuated by preserving inviolable the personal franchises and immunities of the citizen, as well as guarding and protecting the sovereign attributes of the State. To suppose that public liberty cannot be in danger, except from a foreign foe or internal disorder, is virtually to deny the importance and necessity of written constitutions. If there was no fear of our own rulers, why impose restraints upon them, and why commit the guardianship and care of the great principles of civil and religious liberty to separate and independent departments of the Government, and bind each, by the most solemn injunctions, to preserve and defend them? And why trust the Constitution, in the last resort, to the interpretation of the Courts, to expound its meaning and declare its will? For this plain and obvious reason: because the Judiciary has few temptations to err, and possesses neither patronage or power, to make it popular or dangerous. I cannot separate the political freedom of the State from the personal rights of its citizens. They are indissolubly bound up together in the same great bond of union, and, to my mind, they are incapable of division. The distinction may be in names, but it cannot be in the nature and essence of things. It is certainly true, that, in one sense of the term, the political rights of the State and the personal privileges of the citizen may be contradistinguished from each other. There is a certain class of rights, which belongs to the State in her corporate character, and cannot be exercised except through the intervention of her authority. By far the most important and largest of the rights of the Constitution appertain exclusively to the person of the citizen, and concern the inherent rights of life, liberty, and property. Many of these rights lie behind the Constitution, and existed antecedent to its formation and its adoption. They are embodied in its will, and organized by its power, to give them greater sanctity and effect. They are written, that they may be understood and remembered; and then declared inviolate and supreme, because they cannot be weakened or invaded without doing the Government and citizen manifest injustice and wrong. Among these rights, I hold, is the privilege of the people to keep and to bear their private arms, for the necessary defence of their person, habitation, and property, or for any useful or innocent purpose whatever. We derive this right from our Anglo-Saxon ancestors, and under the form of that government it has ever been regarded as sacred and inviolable. It is of great antiquity and of invaluable price. Its necessary operation, in times of convulsion and of revolution, has been the only means by which public liberty or the security of free States has been vindicated and maintained. Here, the principles of equal and natural justice, as well as the obvious meaning and spirit of the Constitution, have placed it above legislative interference. To forbid a citizen, under the penalty of fine and imprisonment, to carry his own private arms about his person, in any manner that he may think proper for his security or safety, is, in my opinion, an unauthorized attempt to abridge a constitutional privilege, and therefore I hold the law in question to be of no effect.
[But the majority of the Court being of a different opinion, the judgment was reversed.]