IT SHALL NOT BE INFRINGED,
SAYS THE CONSTITUTION.
Some Interviews as to the Power of States and Municipalities to Make Restricting
Laws and Ordinances —The Question a Pertinent One at This Time.
New YORK, May 4.—There is probably no state in the Union in which there is not a law against the carrying of certain weapons, and against carrying any concealed weapon. Even in Texas, which the world at large feels called upon to regard as the paradise of pistol shooters, there is such a law, and it is enforced to a certain extent. That is, a stranger who should be found carrying a revolver in his pocket would probably have to pay a fine, though a very large proportion of the citizens of the state undoubtedly carry them and are not punished.
In Memphis, acme eight or nine years ago, a sort of epidemic of shooting affrays led to the passage of a local ordinance by virtue of which persons who were found carrying pistols were imprisoned and not fined. The mayor of a neighboring city, who went armed while traveling, was accordingly sentenced to sixty days in jail, and no influence which he could bring to bear was sufficient to save him from going there, though I believe he was, in fact, pardoned before he had been there very long.
It may be said in a general way that the laws and ordinances iv the different parts of the United States are very similar, and it is therefore enough to quote those of New York. Here there are a state law and a corporation ordinance on the subject. The state law prohibiting the carrying of pistols has been repealed, but section 410 of the penal code declares that any person who carries, conceals, or possesses a dagger, a dirk, or a dangerous knife with in tent to use it against the person of another shall be guilty of felony, and the following section declares that the possession of such a weapon shall be deemed presumptive evidence of intent to use it. The offense being a felony, it is, of course, punished severely, the penalty being a fine not exceeding $1,000, or imprisonment for not more than seven years, or both.
The carrying of a pistol is a less serious offense, but according to the corporation ordinance it is a misdemeanor for any person, excepting judges of the federal and state courts and officers of the state and city, to carry a pistol of any kind "concealed on his person and not carried openly." Provision is made for the issuance of a permit enabling a citizen to carry a pistol lawfully,but in default of such permit a penalty of ten dollars fine or ten days imprisonment is prescribed.
Just now, probably because of certain notable crimes committed by foreigners, there has been a loud call for the strict enforcement of such laws. The New York Sun the other day quoted an Italian, who had been arrested and found to have a pistol in his pocket, as saying that the habit of carrying weapons is universal among Italians in this country, and expressed its belief that the statement is not far from true. It then referred to the state law making a felony of the carrying of certain specified weapons with intent to use them, and said, "It is evident that such weapons are not borne without the intent to use them," and called on the police to arrest everybody who may be suspected of carrying them. This is in effect a demand that every Italian shall be arrested.
Now, the constitution of the United States, in the second amendment, says: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."
To the lay mind there is an apparent conflict between this provision and the state laws mentioned, and I have consulted various authorities on the subject.
Ex-Governor Hoadly, of Ohio, who is now practicing law in New York, said that, without taking time to examine the question thoroughly, he was inclined to think that there was no conflict between the constitutional provision quoted and the various laws mentioned. "It has been held,' he said, "that the constitutional provisional apply to federal legislation and to the police power of congress in the District of Columbia, and so forth. They do not apply as restricting the power of states or municipalities to pass their own laws."
"But by that you do not mean," said I, "that a state can infringe any right of the citizen which is guaranteed by the constitution of the United States?"
"Of course not," he said hastily. "But this right to keep and bear arms, which is not to be infringed, does not mean a right to carry concealed weapons. It means, rather, the use of weapons of warfare."
"Then a citizen may carry a revolver in a belt, but not in his pocket?"
"Well, you may reduce it to that, I suppose, but remember I am not giving you a carefully prepared opinion—only an off-hand one."
Governor Abbett, of New Jersey, seemed to be by no means so sure of the constitutionality of the laws In question, though as an executor, charged with the duty of enforcing them, he would not criticise them. He refused rather brusquely to express any opinion whatever. Ex-President Cleveland refused even to be seen for an interview on the subject.
Mr. Hummel, of the firm of Howe & Hummel, is generally conceded to be the leading lawyer in "criminal practice," so called, at the New York bar. At all events, he is reputed to understand the criminal code as well as, if not better than any of his rivals. He said:
"I have given a great deal of study to the provisions of the penal code and the municipal ordinances restricting the carrying of deadly weapons, and I have no hesitation in saying that in so far as they relate to the carrying of weapons used in civilized warfare they contravene the second amendment to the constitution of the United States. I have repeatedly advised my clients to that effect when they have asked for my opinion touching their rights.
"That second amendment must have been a stumbling block in the way of the lawmakers who framed the provisions of the penal code of the state, for in the enumeration of weapons the possession or carriage of which is declared a felony, fire-arms and other weapons recognized as warlike are omitted, and only those are mentioned which are universally regarded as the tools of robbers and assassins. Dirks, stilettos, sword canes, brass knuckles, slung shots, billies, loaded sticks and sandbags are placed under the ban, and possession of them on the person is made a felony, as it should be. I do not question that the prohibition of weapons of that character is clearly within the powers of state lawmakers. What is known as the general police power amply warrants such legislation.
"It is entirely different, however, with the possessing and carrying of pistols and larger firearms, and such cutting weapons as are used iv the chase or in war. Here in New York such weapons are forbidden only by ordinance of the municipality, under penalty of ten dollars fine or ten days imprisonment. If a person who was subjected to such penalty should take the trouble to appeal, there is no doubt in my mind that the higher courts would declare such laws or ordinances unconstitutional.
"The ordinance of this city gives the police authorities the power to grant permits to carry pistols to persons whom they deem fit to be intrusted with that privilege, and I have advised those clients who have consulted me on the question that it would be easier on the whole, and would probably save trouble, to obtain the required permit, and I have further advised them that if the superintendent of police should for any reason refuse such a permit, they should exercise their own discretion, with the full assurance that they could successfully contest the right of the police courts to enforce the prohibiting ordinance.
"Under this ordinance.moreover.the only persons who are actually imperiled are those who desire to give full respect and obedience to the laws. Habitual law breakers, as is perfectly well known, do not give a moment's thought to prohibiting statutes or ordinances, and when they are arrested it is usually for some offense of sufficient importance to efface the consideration of the minor misdoing."
Inspector Alexander S. Williams, who was famous as a police officer long before he was inspector, is known as one of the best lawyers on the police force of this city. I asked him once, some time ago, if he believed that the laws against carrying concealed weapons were constitutional, and he said he did not think they were. "I do all I can toward enforcing the laws on this subject, the same as I do all others of course, because it is my duty to, and more over, I consider them good laws, but I believe if any man who should be punished for carrying a pistol should appeal and should carry his case to the supreme court of the United States, such a law would be declared in that court unconstitutional."
Chief Inspector Byrnes, now acting superintendent of the police, refused to give any opinion on the constitutionality of the laws mentioned, but spoke freely enough about the laws themselves. He was inclined to believe that it was illegal to carry any weapons whatever in the city of New York, and said that a policeman might arrest a citizen for carrying a revolver openly in a belt, but the statutes do not seem to support his opinion in this particular.
"Do you think the laws against carrying concealed weapons are conducive to the safety of the law abiding citizens in their actual operation?" I asked him.
"No, I do not," he said frankly. "There is many a good citizen who would like to carry a pistol, but who will not do it with out a permit because of the law, and who is not ashamed, perhaps, but reluctant to put himself in the position of asking for a permit. But dangerous persons always go armed. Some of them, perhaps, have permits, but whether they have or not makes no difference to them. Of course if it were practicable to enforce the laws thoroughly it would be different, but it doesn't seem to be."
Robert Pinkerton, the well known private detective, was asked for his opinion of the law, but was very evasive in his replies. "As to the constitutionality of the laws," he said, "I'd rather not speak, because I am not a constitutional lawyer. And if I should be arrested for carrying a weapon, and the judge should prove to be harsh, I think I would pay my fine rather than appeal the case. Of course my men go armed a great deal of the time, but we try to keep them from it as much as possible by giving them instructions not to carry weapons excepting when they are going on some business that is likely to be dangerous.
"As a rule," he continued, "I think that the magistrates, at least in this part of the country, are inclined to be very reasonable in their enforcement of these laws. For instance, I think if a reputable man had reasonable cause to suppose that he might need a weapon for self defense, and should be arrested for carrying it, the magistrate would probably discharge him after warning him of the law. It is not so in some parts of the country, however. There are places where the law against carrying weapons is regularly used as a means to blackmail strangers. Residents are never arrested for it, but if a stranger comes, the porter who blackens his shoes at the hotel; the brush boy at the barber's, and every body else who comes in close contact with him, seems to be acting as a spy. He denounces the stranger, who is fined, and he gets one-half the fine for informing.
"One practical result of these laws is to keep law abiding citizens from carrying weapons, and so place them at a disadvantage in case they do happen to come in contact with criminals, for, of course, the criminals pay no attention to such laws, and good citizens are likely to. To be sure," added Mr. Pinkerton, with a smile, "it is perhaps a good thing to keep law abiding men from carrying pistols, for very few of them know how to use them, and most of them would be more apt to shoot members of their own family than anybody else." David A. Curtis.
- Los Angelos Herald. Vol. 36.--NO. 35 Friday Morning, May 22, 1891.--Ten Pages. Five Cents. Pg. 6
I don't know about you, but the following paragraph from above jumped out at me in a sickening manner:
The carrying of a pistol is a less serious offense, but according to the corporation ordinance it is a misdemeanor for any person, excepting judges of the federal and state courts and officers of the state and city, to carry a pistol of any kind "concealed on his person and not carried openly."How does the hired servants life become paramount to their rightful masters? Do these treasonous and hypocritical ignoramuses have any shame whatsoever?