The State v. Frank O'Toole
The State v. Elbert Custer.
(3 Heisk. 165. Supreme Court, Tennessee 1871.)
Carrying Arms Constitutional Law
[Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871).]
"Nelson [Thomas Amos Rogers] J[ustice] delivered the following [dissenting] opinion:--
"Concurring, as I do, in much of the reasoning of the majority of the court, and believing that the object of the Legislature in passing the Act of 1870, was to promote the public peace, I am, nevertheless constrained by a sense of duty to observe, that, in my opinion, that statute is in violation of one of the most sacred rights known to the Constitution. Ever since the opinions were promulgated, it has been my deliberate conviction that the exposition of the Constitution by Judge Robert Whyte, in Simpson v. The State, 5 Yerg. 360, 2 Hum 155. was much more correct than that of Judge Green in Aymette v. The State, 2 Hum 155. The expression in the case last named, that the citizens do not need, for the purpose of repelling encroachments upon their rights, "the use of those weapons which are usually employed in private broils, and are efficient only in the hands of the robber and assassin, is, in my view, an unwarrantable aspersion upon the conduct of many honorable men who were well justified in using them in self-defence. Ibid, 158. The provision contained in the declaration of rights in the Constitution of 1834, "that the free white men of this State have a right to keep and bear arms for their common defence," is not restricted to public defence, as held in Aymette v. The State, 2 Hum. 158. Had such been the intention, the definite article "the" would have been employed instead of the personal pronoun "their," which is used in a personal sense, and was intended to convey the idea of a right belonging equally to more than one, general in its nature, and universally applicable to all the citizens. The word "bear" was not used alone in the military sense of carrying arms, but in the popular sense of wearing them in war or in peace. The word "arms" means "instruments or weapons of offence or defence," and is not restricted, by any means, to public warfare.
"The declaration of rights, section 26, in the Constitution of 1870, omits the words "free white men," and contains an additional provision, which should be construed in connection with the previous decisions of this court, the conflict in which was well known to the framers of that instrument. After declaring "that the citizens of this State have a right to keep and to bear arms for their common defence," it is added: "But the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime." The word "bear" was manifestly employed in the Constitution of 1870, to convey the idea of carrying arms either for public or private defence; otherwise it was unnecessary to add the provision that the Legislature shall have power "to regulate the wearing of arms with the view to prevent crime." The habit, or custom, intended to be regulated, was not that of bearing arms fit only to be used in war, and which, from the publicity with which such arms are carried, needed but little, if any, regulation. It was well known to the Convention, that a very large number of citizens had become accustomed, during the late civil war, to carry pistols and other weapons not ordinarily used in warfare, and had retained this habit after the close of the war, and that dangerous wounds, as well as frequent homicides, were the result of its universal prevalence; and the object of conferring express power to regulate the mode of wearing them, was not to destroy the right, but so to control it that the Legislature, by declaring that such arms should be worn publicly and not secretly upon the person, might prevent those crimes which are often committed by armed men in taking the lives of their unarmed adversaries. To "regulate" does not mean to destroy, but "to adjust by rule," "to put in good order," to produce uniformity of motion or of action; and, under this provision, there can be no question that, while the Legislature has no power to prohibit the wearing of arms, it has the right to declare that, if worn upon the person, they shall be worn in a public manner. The Act of 1870, instead of regulating, prohibits the wearing of arms, and is, therefore, in my opinion, unconstitutional and void.
"In Bliss v. Commonwealth, 2 Lit. 90, the statute to prevent persons wearing concealed arms, was held unconstitutional, as infringing the right of the people to bear arms in defence of themselves and the State. See Cooley Const. Lim. 350; Cockram v. The State, 24 Texas, 401. The words "in defence of themselves and the State," are equivalent to the words "for their common defence," and but for the power to regulate, ingrafted upon the Constitution of 1870, should be interpreted here as they were in Kentucky: "The words 'rules and regulations,' in the Constitution of the United States, are usually employed in the Constitution
in speaking of some particular specified power, which it means to confer on the government, and not as we have seen, when granting general powers of legislation: as, to make rules for the government and regulation of the land and naval forces; to 'regulate' commerce; to establish an uniform rule of naturalization; to coin money and 'regulate' the value thereof. In all these, as in respect to the Territories, the words are used in a restricted sense:" Paschal's Anno. Const., 238; Scott v. Sandford, 19 How. 337; 2 Story's Const. (3d ed.), 196, 213.
"Neither the old nor the new Constitution confers the right to keep, or to bear, or to wear arms, for the purpose of aggression. The right exists only for the purpose of defence; and this is a right which no constitutional provision or Legislative enactment can destroy. The right to the enjoyment of life is one of the "inalienable rights" with which the Declaration of Independence declares that all men are endowed by their Creator. And one of the most classical and elegant of all legal commentators declared, in regard to the great right of self-defence, that the law, in this case, respects the passions of the human mind, and (when external violence is offered to a man himself, or to those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of the law is by no means an adequate remedy for injuries accompanied with force, since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man, immediately, to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society." 3 Black. Com. 4. In accordance with this view, I hold that when a man is really and truly endangered by a lawless assault, and the fierceness of the attack is such as to require immediate resistance in order to save his own life, he may defend himself with any weapon whatever, whether seized in the heat of the conflict, or carried for the purpose of self-defence. He is not bound to humiliate, or perchance to perjure himself, in the slow and often ineffectual process of "swearing the peace," or to encourage the onslaught of his adversary by an acknowledgment of timidity or cowardice. It is deeply to be regretted that any peaceful citizen should be placed in a condition making it necessary for him to carry arms for his own protection, and that a purpose, laudable and honorable in itself, is often perverted by "lewd fellows of the baser sort" to purposes of assassination or revenge. But some of the most important elements in nature, such, for example, as fire and water, may be so misused and perverted. Yet we do not prohibit or destroy their use. We endeavor only to
"In the purer and better days of the Republic, "a well regulated militia was regarded as necessary to the security of a free State;" and it was declared in the first amendment to our National Constitution, that "the right of the people to keep and to bear arms should not be infringed."
"So, "by the Anglo-Saxon laws, or rather by one of the primary and indispensable conditions of political society, every freeholder, if not every freeman, was bound to defend his country against hostile invasion;" and by the statute of Winchester, 13 Edw. I., every man between the ages of fifteen and sixty was to be assessed and sworn to keep armor according to the value of his lands and goods: for fifteen pounds and upward in rent, or forty marks in goods, a hauberk, an iron breastplate, a sword, a knife, and a horse; for smaller property, less extensive arms. See Hallam's Const. Hist. 311. These laws were subsequently repealed or modified in the interests of despotic power. And Mr. Tucker, in his notes to Blackstone, says, that "whoever examines the forest and game laws in the British Code, will readily perceive that the right of keeping arms is taken away from the people of England." See 1 Sharsw. Black, 143. A zealous concern for public liberty and personal security animated our patriotic ancestors to encourage the use of arms. It was once the policy, too, of our State Government to foster a martial spirit among the people, and to train them to the use of arms, not only for the purpose of national defence, but also in case of necessity, for defence of their own persons. The tendency now appears to be the other way, and passive obedience and slavish submission to wrong and outrage would seem to be the growing spirit of the times. While "shooting matches" were once encouraged by the Legislature, as a proper method of accustoming the citizens to the use of arms, the timid course of existing legislation is to make the peace warrant the only potent weapon of defence, and to teach the people to "have peace" upon any terms, no matter how degrading.
"Regretting, as I do, that the nobler objects of bearing and wearing arms are too often and too horribly perverted, I cannot approve legislation which seems to foster and encourage a craven spirit on the part of those who are disposed to obey the laws, and leaves them to the tender mercies of those who set all law at defiance.
"TURNEY, J. I concur in the foregoing dissenting opinion.
[CRIMINAL LAW REPORTS: BEING REPORTS OF CASES DETERMINED IN THE FEDERAL AND STATE COURTS OF THE UNITED STATES, AND IN THE COURTS OF ENGLAND, IRELAND, CANADA, ETC. WITH NOTES By N. ST. JOHN GREEN, FORMERLY LECTURER ON CRIMINAL LAW AT THE DANE LAW SCHOOL, HARVARD UNIVERSITY, AND NOW LECTURER ON CRIMINAL LAW AT THE SCHOOL OF LAW OF BOSTON UNIVERSITY. NEW YORK PUBLISHED BY HURD AND HOUGHTON. Cambrige: The Riverside Press. 1876. Pgs. 478-81]
(Thomas Amos Rogers Nelson, (March 19, 1812 – Aug. 24, 1873), was an American attorney, politician, and judge in East Tennessee. He represented the 1st Congressional District in Tennessee in the 36th U.S. Congress. (1859–1861). Gaining a reputation as a staunch pro-Union southerner. He was elected to a second term in 1861 on the eve of the Civil War, but was arrested by Confederate authorities before taking his seat. Nelson served on the defense team of President Andrew Johnson's impeachment trial in 1868. He was then elected to the Tennessee Supreme Court in 1870.)