Tuesday, June 04, 2013

Foot Notes to the [dissenting] opinion below

    The right of the people to keep and bear arms, is a right secured by the various Constitutions of this country. By Blackstone it is considered as one of the liberties of Englishmen. 1 Com. 143, 144.
The statute 9th Geo. I. c. 35, sec. 10, after setting forth that dissolute and disorderly people frequently appear in gangs upon the sea-coast, armed for the purpose of smuggling, and that several officers of the revenue have been wounded and murdered by such persons, enacts that any persons, to the number of three or more, who shall assemble for such purpose, armed with firearms or other offensive weapons, shall be arrested, and upon due proof of their being assembled armed, in order to assist in smuggling, shall be adjudged guilty of felony, and transported to the American colonies for seven years. Sec. 13 of the same statute provides that all persons to the number of two or more in company who shall be found within five miles of the sea-coast, &c., with merchandise upon which the duties have not been paid, and who shall carry any offensive arms, shall be transported as felons.

    Upon the debate upon this bill in the House of Lords, May 15, 1736, its passage in this form was strenuously opposed by Lord Talbot, the then Lord Chancellor, and by Lord Hardwicke, the then Chief Justice of the King's Bench. One of the grounds of their opposition is set forth as follows in Cobbett's Parl. Hist. vol. 9, p. 1230: "A third guard for our liberties, and the only other I shall at present take notice of, is, that liberty which every subject has, not only to provide himself with arms proper for his defence, but to accustom himself to the use of those arms, and to travel with them whenever he has a mind. This, my Lords, is not only a defence for our liberties, but it is the chief and the only defence upon which we ought to depend for the preservation of our country against foreign invasions. In arbitrary governments, we know it is the custom and the maxim to disarm the people, and to prevent any man's furnishing himself with arms, or accustoming himself to the use of them, but such as are retained and employed by the government; therefore such governments are always obliged to keep a large body of mercenary troops in their pay, who may perhaps sometimes be able to defend the country against invasions, but they are generally able, and always ready and willing to defend their pay-masters against the justest resentment of the people, so that in such countries it may be justly said the people are preserved from being plundered by foreign enemies, for no other reason but that their domestic plunderers may find a more rich and plentiful booty; and in all such countries we find their laws are generally partial in favor of tax-gatherers, and other instruments of power, and terribly severe upon those who shall upon any occasion dare to oppose them, in what they may please to call the execution of their office. Having premised these observations upon our Constitution, and upon the nature of a free government, give me leave, my Lords, to apply them to that clause iu this bill which subjects every man in the kingdom to the danger, nay, I may say, certainty, of being committed to prison by a single justice of peace without bail or mainprise, of being convicted and transported as a smuggler, and if he returns before the time limited, hanged as a felon, without beuefit of clergy; and all this without his having been guilty of any one overt act, except that of travelling properly armed for his defence, and having the misfortune to meet with two of his friends upon the road, armed in ihe same manner, in case any two rogues of informers, or perhaps real smugglers, who are to get 150/., perhaps 250/. by their perjury, shall swear that this honest man and his two friends were assembled and armed, iu order to be aiding and assisting in the clandestine running, lauding, rescuing, or carrying away prohibited or uncustomed goods. This regulatiou, when stripped of that multiplicity of words which reuder obscure the meaning and intent of every clause of an act of parliament, really seems to nie to be th,' most terrible and the most entrapping regulation that was ever promised in any country. If it passes into a law I am sure that it will not be quite safe for any three gentlemen in the kingdom to be seen in company together, if they have but walking swords by their sides.

    "It is evident at first view, that this regulation is repugnant to all the maxims of free government. The wearing of arms is an act not only innocent but highly commendable, therefore no presumption of any crime can from thence be inferred. . . . From what I have said, my Lords, it appears, that if this clause passes into a law, the liberty and the life of every subject in Britain will be exposed to very great perils if he ever travels with arms for his defence or appears abroad with any offensive weapon in his custody; therefore we may suppose that in such circumstances no man will ever travel with arms, and since no man can make use of any arms, it is not to be supposed that any man will be at the expense of providing himself with such utensils; for which reason I must look upon this bill as a bill for disarming the whole kingdom; and surely none of your lordships will think that the passing of any such bill is consistent with 'the preservation of our happy Constitution or the safety of our native country .... From what I have said, my Lords I think it is now evident that if this bill passes into a law, it will be dangerous for any man in the kingdom to travel with arms; and therefore it may, as was said in the beginning of the debate, be justly called a bill for disarming the people of Great Britain, in order to preserve their liberties, and make them pay their taxes." Upon the passage of the bill eighteen lords placed on record their protest. One of the reasons given in the protest was this (Cobbett, vol. 9, 1267): "As two noble and learned lords, who preside in the two greatest courts of the kingdom, showed by the strongest arguments that the bill, as it now stands, may be dangerous to the liberties of our fellow-subjects, we could not agree in the passing of it, however expedient or necessary it may be supposed in other respects."

    How far it is within the legislative power to regulate the right of the people to keep and bear arms is a question of difficulty upon which there has existed much diversity of opinion. The first case in which the question arose is believed to be the case of Bliss v. Com. (2 Littell (Ky ), 90), decided in 1822. In that case a statute to prevent persons from wearing concealed arms was held to be unconstitutional and void. The opinion of the court in that case is as follows : —

    "This was an indictment founded on the act of the Legislature of this State, to prevent persons in this Commonwealth from wearing concealed arms.

    "The act provides, that any person in this Commonwealth, who shall hereafter wear a pocket-pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when travelling on a journey, shall be fined in any sum not less than SI 00; which maybe recovered in any court having jurisdiction of like sums, by action of debt, or on presentment of a grand jury.

    "The indictment, in the words of the act, charges Bliss with having worn concealed as a weapon, a sword in a cane.

    "Bliss was found guilty of the charge, and a fine of $100 assessed by the jury, and judgment was thereon rendered by the court. To reverse that judgment, Bliss appealed to this court.

    "In argument the judgment was assailed by the counsel of Bliss, exclusively on the ground of the act on which the indictment is found being in conflict with the twenty-third section of the tenth article of the Constitution of this State. "That section provides, 'that the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned.'

   "The provision contained in this section perhaps is as well calculated to secure to the citizens the right to bear arms in defence of themselves and the State, as any that could have been adopted by the makers of the Constitution. If the right be assailed, immaterial through what medium, whether by an act of the Legislature or in any other form, it is equally opposed to the comprehensive import of the section. The Legislature is nowhere expressly mentioned in the section; but the language employed is general, without containing any expression restricting its import to any particular department of government; and in the twenty-eighth section of the same article of the Constitution it is expressly declared. 'that everything in that article is excepted ant of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to the Constitution, shall be void.' 
    "It was not. however, contended by the attorney of the Commonwealth, that it would be competent for the Legislature, by the enactment of any law, to prevent the citizens from bearing arms either in defence of themselves or the State, but a distinction was taken between a law prohibiting the exercise of the right, and a law merely regulating the manner of exercising that right; and whilst the former was admitted tn be incompatible with the Constitution, it was insisted that the latter is not so, and under that distinction, and by assigning the act in question a place in the latter description of laws, its consistency with the Constitution was attempted to be maintained.

    "That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the State, will not be controverted by the court, for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may nevertheless, bear arms in any other admissible form. But to be in conflict with the Constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defence of the citizens and the State, that is secured by the Constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the Constitution.

    “If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the Constitution, is precisely the same, and its collision with that instrument equally obvious.

"And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the Constitution, it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else, but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right, and such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the Constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the Constitution, it cannot be incompatible with that instrument for the Legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

    "We may possibly be told, that although a law of either description may be enacted consistently with the Constitution, it would be incompatible with that instrument to enact laws of both descriptions. But if either, when alone, be consistent with the Constitution, which, it may be asked, would be incompatible with that instrument, if both were enacted?

   "The law first enacted would not be; for, as the argument supposes either may be enacted consistent with the Constitution, that which is first enacted must, at the time of enactment, be consistent with the Constitution; and if then consistent, it cannot become otherwise, by any subsequent act of the Legislature. It must, therefore, be the latter act which the argument infers would be incompatible with the Constitution.

   "But suppose the order of enactment were reversed, and instead of being the first, that which was first, had been last; the argument, to be consistent, should, nevertheless, insist on the last enactment being in conflict with the Constitution. So that the absurd consequence would thence follow, of making the same act of the legislature, either consistent with the Constitution, or not so, according as it may precede or follow some other enactment of a different import. Besides, by insisting on the previous act producing any effect on the latter, the argument implies that the previous one operates as a partial restraint on the right of the citizens to bear arms, and proceeds on the notion, that by prohibiting the exercise of the residue of right, not affected by the first act, the latter act comes in collision with the Constitution. But it should not be forgotten, that it is not only a part of the right that is secured by the Constitution; it is the right entire and complete, as it existed at the adoption of the Constitution, and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the Constitution. Hence, we infer, that the act upon which the indictment against Bliss is found, is in conflict with the Constitution, and if so, the result is obvious; the result is what the Constitution has declared it shall be, that the act is void. 
    "And if to be incompatible with the Constitution makes void the act, we must have been correct, throughout the examination of this case, in treating the question of incompatibility as one proper-to be decided by the court. For it is emphatically the duty of the court to decide what the law is; and how is the law to be decided, unless it be known ! and how can it be known without ascertaining, from a comparison with the Constitution, whether there exists such an incompatibility between the acts of the Legislature and the Constitution, as to make void the acts?

    "A blind enforcement of every act of the Legislature, might relieve the court from the trouble and responsibility of deciding on the consistency of the legislative acts with the Constitution; but the court would not be thereby released from its obligations to obey the mandates of the Constitution, and maintain the paramount authority of that instrument; and those obligations must cease to be acknowledged, or the court become insensible to the impressions of moral sentiment, before the provisions of any act of the Legislature, which in the opinion of the court, conflict with the Constitution, can be enforced.

   "Whether or not an act of the Legislature conflicts with the Constitution, is, at all times, a question of great delicacy, and deserves the most mature and deliberate consideration of the court. But though a question of delicacy, yet as it is a judicial one, the court would be unworthy its station, were it to shrink from deciding it whenever, in the course of judicial examination, a decision becomes material to the right in contest. The court should never, on slight implication or vague conjecture, pronounce the Legislature to have transcended its authority in the enactment of laws, but when a clear and strong conviction is entertained, that an act of the Legislature is incompatible with the Constitution, there is no alternative for the court to pursue, but to declare that conviction, and pronounce the act inoperative and void. And such is the conviction entertained by a majority of the court (Judge Mills dissenting) in relation to the act in question.

    "The judgment must, consequently, be reversed.

    The question was incidentally treated of in Simpson v. The State of Tennessee, 5 Yerger, 356, A.D. 1833. The indictment I here charged that the appellant "with force and arms being arrayed in a warlike manner in a certain public street and highway, unlawfully and to the great terror of the people, an affray did make," &c. The indictment was held by three of the four judges, not to charge an offence, because to constitute an affray there must be fighting between two or more persons in a public place. But Hawkins P. C. b. 1, c. 28, s. 4, having been cited, "that in some cases there may be an affray where there is no actual violence, as where a man arms himself with dangerous and unusual weapons, in such a manner as will naturally cause terror to the people, which is said always to have been an offence at common law, and is strictly prohibited by many statutes," the court referring to the statutes of 2 Ed.

   III. say, " But suppose it to be assumed on any ground, that our ancestors adopted and brought over with them, this English statute or portion of the common law, our Constitution has completely abrogated it; it says ' that the freemen of this State have a right to keep and to bear arms for their common defence.' It is submitted that this clause of our Constitution fully meets and opposes the passage or clause in Hawkins, of ' a man's arming himself with dangerous and unusual weapons' as being an independent ground of affray, so as of itself to constitute the offence cognizable by indictment. By this clause in the Constitution, an express power is given and secured to all the free citizens of the State to keep and bear arms for their defence, without any qualification whatever as to their kind or nature; and it is going much too far, to impair by construction or abridgment a constitutional privilege, which is so declared; neither, after so solemn an instrument hath said the people may carry arms, can we be permitted to impute to the acts thus licensed, such a necessarily consequent operation as terror to the people to be in carted thereby; we must attribute to the framers of it the absence of such a view." One judge dissented from this opinion, but in a way which avoided touching upon the constitutional question.

    As far as the carrying of concealed weapons is concerned, the question came before the court of Indiana in 1833 in the case of The State v. Mitchell (3 Black, 229). but all we have of the case is the simple note of the reporter that "It was held in this case, that the statute of 1831, prohibiting all persons, except travellers, from wearing or carrying concealed weapons, is not unconstitutional."

    In Aymette v. The State (2 Humph. Tenn. 154, A. D. 1840), the defendant was indicted for wearing a bowie knife under his clothes, and keeping it concealed about his person under a statute which provided, "That if any person shall wear any bowie knife, or Arkansas tooth-pick, or other knife or weapon, that shall in form, shape, or size resemble a bowie-knife or Arkansas tooth-pick, under his clothes, or keep the same concealed about his person, such person shall be guilty of a misdemeanor," &e. The defendant moved in arrest of judgment upon the ground that the statute was unconstitutional as being in conflict with art. 1 § 26 of the Tennessee Bill of Rights, "That the free white men of this State have a right to keep and bear arms for their common defence." The court held that there was no conflict between the statute and the Constitution; that the arms, the right to keep and bear which is secured by the Constitution, are such as are usually employed in civilized warfare, and constitute the ordinary military equipment; that the Legislature have power to prohibit the keeping; or wearing weapons dangerous to the peace and safety of the citizens, and which are not used in civilized warfare; that the right to keep and bear arms for the common defence, is a great political right; that it respects the citizens on the one hand, and the rulers on the other; and that although this right must be inviolably preserved, it does not follow that the Legislature is prohibited from passing laws regulating the manner in which these arms may be employed.

    In State v. Buzzard (4 Ark. 18, A. D. 1842). a law making the wearing concealed weapons an offence was held to be constitutional. From this decision, however, Lacy, J., dissented.

    In State v. Reid (1 Ala. 612, A. D. 1840), the defendant was indicted for carrying concealed about his person a certain species of firearms, called a pistol. The wording of the Constitution of the State was, "Every citizen has a right to bear arms, in defence of himself" and the State." The statute upon which the indictment was founded enacted "that if any person shall carry concealed about his person, any species of fire-arms, or any bowie-knife, Arkansas tooth-pick, or any other knife of the like kind, dirk, or any other deadly weapon, the person so offending shall," &c. "On the trial it was proved that the defendant carried concealed about his person a pistol. That while making a settlement as sheriff, lie had been attacked by an individual of a dangerous and desperate character, who afterwards threatened his person, and came to his office several times to look for him. It was also proved that these threats were communicated to the defendant, and the pistol brought to him by a friend, who conceived his life was in danger. The defendant thereupon moved the court to charge the jury, that the law upon which the indictment was found was unconstitutional, and that the defendant could not be convicted; which charge was refused by the court. The defendant then moved the court to charge the jury, that if they believed from the evidence that the defendant carried the weapon concealed, for the purpose of defending his person, and that it was necessary to carry the weapon concealed for that purpose, then they should acquit the defendant, which charge was also refused. Whereupon, the court charged the jury that the law upon which the indictment was founded, was constitutional, and that although the jury might believe from the evidence, that the defendant carried the weapon for the defence of his person, and although it was necessary for his defence that the weapon should be concealed, yet these facts would only go in mitigation, and did not constitute a complete defence." This charge and the refusals to charge were referred to the Supreme Court for its decision. There was also a motion in arrest of judgment upon the ground that the statute was unconstitutional, and it was argued that as the Constitution provides that the liberty of the press shall not be abridged, no previous restraint can be placed upon publications, the party publishing being responsible only for the abuse of the liberty; so in regard to the bearing of arms, the person making an improper use of them is amenable to the laws, though he may carry them in any manner he pleases. The court, however, held the statute constitutional. In relation to the refusals to charge, and to the charge actually given, the court say, " There was no evidence adduced, tending to show that the defendant could not have defended himself as successfully, by carrying the pistol openly, as by secreting it about his person; it is difficult to conceive how one could be placed in such an attitude, consistently with the law which recognizes the right of self-protection. If the emergency is pressing, there can be no necessity for concealing the weapon, and if the threatened violence will allow of it, the individual may be arrested and constrained to find sureties to keep the peace, or committed to jail. The charge asked for, was then upon an abstract point of law. We will not undertake to say, that if in any case, it should appear to be indispensable to the right of defence that arms should be carried concealed about the person, the act 'to suppress the evil practice of carrying weapons secretly' should be so construed as to operate a prohibition in such case. But in the present case no such necessity seems to have existed; and we cannot well conceive of its existence under any supposable circumstances."

    In the case of Nunn v. The State of Georgia (1 Kelly, 243, A. D. 1846), the opinion of the court concludes as follows : " We are of the opinion, then, that so far as the Act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed and the proceedings quashed." This interpretation of the law has always been adhered to in that State. Stockdale v. The State, 32 Geo. 225 ; Killet v. The State, 32 Geo. 292; Alford v. The State, 33 Geo. 303; Washington v. The State, 36 Geo. 242.

    In State v. Jurmel (31 La. An. 389, A. D. 1858) it was held that the statute against carrying concealed weapons "does not infringe the right of the people to keep or bear arms. It is a measure of police, prohibiting only a particular mode of bearing arms which is found dangerous to the peace of society."
In Owen v. The State (31 Ala. 387, A. D 1858), the bill of exceptions set forth that "the State introduced one Hutchinson as a witness, who testified, that within twelve months before the finding of the indictment, he went into the room of one Charles S. Williams, in said county of Tuskaloosa; that he found in the room Mr. Williams, the defendant, and two or three other young gentlemen: that he remained in the room some twenty minutes, or half an hour; that while there, he asked the defendant to give him a cup; that the defendant put his hand into his vest pocket, and took a small pistol out of his pocket, to get a cap; that the pistol was the smallest he had ever seen, and he requested the defendant to let him look at it; that the defendant did so, and, when he and others had looked at it, it was handed back to the defendant, who again put it into his vest pocket; that he did not see it until the defendant had taken it out of his pocket, and could not see it after he had put it into his pocket, as stated; that he did not know whether the pistol was loaded or not; and that, when he went out he left the defendant in the room.

    "This was all the evidence in the cause; and thereupon the defendant asked the court to charge the jury, that unless they believed from the evidence that the defendant had the said pistol when he went into the said room, or took it with him when he left the room, merely having the pistol in his pocket, as stated, was not a carrying of the pistol concealed about his person, within the meaning of the statute. The court refused to give this charge, and the defendant excepted."

    Rice, C. J. "The defendant was indicted for a violation of section 3274 of the Code, which provides, that 'any one who carries concealed about his person a pistol, or any other description of fire-arms, not being threatened with, or having good reason to apprehend (in attack, or travelling, or setting out on a journey, must, on conviction, be fined not less than fifty, nor more than three hundred dollars.'

   "That section was not designed to destroy the right, guaranteed by the Constitution to every citizen, ' to bear arms in defence of himself and the State,' nor to require them to be so borne, as to render them useless for the purpose of defence. It is a mere regulation of the manner in which certain weapons are to be borne; a regulation, the object of which was to promote personal security, and to advance public morals. To that end, it prohibits the bearing of certain weapons, 'in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others.' The State v. Reid, 1 Ala. R. 612.

    "The word ' carries,' in the section above cited, was used as the synonym of ' bears ;' and the word ' concealed,' as therein used, means willfully or knowingly covered, or kept from sight. Locomotion is not essential to constitute a carrying within the meaning of that section. A person who, in the room of another, in which there are two or three other persons, bears in his vest pocket a pistol, willingly or knowingly covered or kept from sight, without any of the excuses therefor recognized by law, is a violator of the section above cited. The charge asked by the defendant in this case, is in conflict with the law as thus laid down by us. That charge does not simply assert the general proposition, that merely having a pistol in one's pocket in a room, is not a carrying of the pistol concealed about his person, within the meaning of the statute, it goes beyond that, and asserts that, if the defendant did not have the pistol when he went into the room, nor when he went out of it, his 'merely having the pistol in his pocket in the room, as stated, was not a carrying of the pistol concealed about his person, within the meaning of the statute.' The charge as asked was specific, and referred directly to the evidence which showed the manner in which the defendant carried the pistol, and conceded the truth of that evidence. As the truth of the evidence was thus conceded by it, the conclusion it drew from the evidence was a non sequitur; for, if the defendant did have the pistol in his pocket, in the room, as stated by the evidence, he might be guilty, although he neither had it when he entered the room, nor when he left the room."

   In Cockrum v. The State, 24 Tex. 394, A. D. 1859, the indictment was for murder. "After charging the law generally upon the subject of manslaughter, the court below added, that, ' if, however, the jury believe that the defendant is guilty of manslaughter, as above defined, but that the act was done with a bowie-knife, or dagger, they will consider the act murder.' This was given in compliance substantially with article 610 of the Code: 'If any person be killed with a bowie-knife or dagger, under circumstances which would otherwise render the homicide a case of manslaughter, the killing; shall nevertheless be deemed murder and punished accordingly.'" In sustaining this charge the Supreme Court say (p. 402), "The argument advanced against the constitutionality of this law is, that any discrimination made by the Legislature, in punishing the abuse of this right, in regard to a particular weapon, is an impairing of the right of its lawful use. That proposition given a practical application, amounts to this, that the Legislature cannot affix any higher punishment to an unlawful assault with one of the dangerous weapons, which it is lawful to carry, than with any other; because the effect of such discrimination against the unlawful use of such weapon would discourage the lawful use of it, and therefore the carrying of it. This proposition can hardly be maintained; for admitting that two persons make an assault with like vicious intent, though with different weapons, one with a weapon not likely to produce death, but which is capable of it, and sometimes does it, and the other with a weapon so destructive in its character as to be almost certain to produce death, when used offensively; the act of the one who has the more dangerous instrument, is much more likely to be seriously injurious to other people, than the act of the other, though the intent is the same in doing the acts. Now if the Legislature can make no distinction in the punishment of the two cases supposed, it is forced to base its punishment upon the degree of evil intent, in total disregard of the means used to curry out that intent, and of the probable injurious results of the acts. The right to carry a bowie-knife for lawful defence' is secured, and must be admitted. It is an exceedingly destructive weapon. It is difficult to defend against it, by any degree of bravery or any amount of skill. The gun or pistol may miss its aim, and when discharged, its dangerous character is lost, or diminished at least. The sword may be parried. With these weapons men fight for the sake of the combat, to satisfy the laws of honor, not necessarily with the intention to kill, or with a certainty of killing when the intention exists. The bowie-knife differs from these in device and design ; it is the instrument of almost certain death. He who carries such a weapon for lawful defence, as he may, makes himself more dangerous to the rights of others, considering the frailties of human nature, than if he carried a less dangerous weapon. Now, is the Legislature powerless to protect the rights of others thus the more endangered, by superinducing caution against yielding to such frailties? May the State not say, through its law, to the citizen 'This right which you exercise, is very liable to be dangerous to the rights of others, you must school your mind to forbear the abuse of your right, by yielding to sudden passion; to secure this necessary schooling of your mind, an increased penalty must be affixed to the abuse of this right so dangerous to others.' This would be in accordance with the well established maxim of the law that' you must so use your own as not to injure others.' A law inflicting such increased penalty, would only be a sanction to this rule. Such admonitory regulation of the abuse must not be carried too far. It certainly has a limit. For if the Legislature were to affix a punishment to the abuse of this right, so great as in its nature it must deter the citizen from its lawful exercise, that would be tantamount to a prohibition of the right. In the absence of authority bearing on the question, we are not now prepared to say, that this law is one of such a nature or that such has been or will be its practical effect. This is a question of power, not of policy. The Legislature has the power to put all cases of manslaughter, committed with deadly weapons, on the same footing with murder, in the punishment leaving it to the jury to affix the degree of punishment, according to their opinion of the degree of its atrocity. If so, it is difficult to see the reason why they may not do this in the case of a bowie-knife, the most deadly of all weapons in common use."


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