Thursday, August 01, 2013

"The right to keep and bear arms, thus secured to the people, has in this country always been regarded as one not to be slightly interfered with or infringed upon"


On Carrying Concealed Weapons.

   State of Missouri, defendant in error, vs. Frank Reando(?), plaintif in error.

   The defendant was indicted at the February term, 1876, of the Washington county circuit Court, for carrying concealed weapons.

   Defendant was tried, convicted and fined ten dollars, and judgment was entered accordingly.

   We are asked to reverse the judgement. because of the insufficiency of the indictment and the unconstitutionality of the act of the legislature, on which the indictment was founded. The act in question, Sess. Acts, 1874, 43, is as follows:

   Whoever shall in this State go into any church or place where people have assembled for religious worship or into any schoolroom or into any place where people may be assembled for educational, literary or social purposes, or to any election precinct on any election day, or into any court room, during the sitting of court, or into any other public assemblage of persons met for other than militia drill or meetings called under the militia laws of this State, having concealed about his person any kind of fire arms, bowie knife, dirk, dagger, slung shot or other deadly weapon, shall be deemed guilty of a misdemeanor, &c. The indictment alleges that defendant did unlawfully enter and go into the house or residence of one Baptiste Boyer, where a number of people were assembled for social purposes, and had then and there unlawfully concealed on his person a pistol loaded with gun powder and leaden balls, which said pistol was then and there a kind of fire arm, &c. The indictment pursues the language of the statute creating the offence except in the use of the word "number" before people, which we think cannot in any respect vitiate it. It may be treated as mere surplusage.

   It is.however, insisted, that the act under which the indictment is framed, is in derogation ot the right of the citizen to bear arms, and is in conflict with and violative of the provision in the constitution of 1865, which declares "that their (the people's) right to bear arms in defense of themselves and of the lawful authority of the State cannot be questioned."

   The question here presented is one not free from difficulty and has given rise to some diversity of opinion. The right to keep and bear arms, thus secured to the people, has in this country always been regarded as one not to be slightly interfered with or infringed upon; and there can be no question but that any legislative enactment which deprived them of this right, would be obnoxious to the provision of the constitution which guarantees it, and would be absolutely null and void.

   In 2, Story on the Con., ss 1897, the author in speaking of a kindred provision in the constitution of the United States, which declares that "the right of the people to keep and bear arms" shall not be infringed upon, observes that "the right of the citizen to keep and bear arms, has justly been considered as the palladium of the liberties of the republic, since, it offers a strong moral check against usurpation and arbitrary power of rulers, and will in general, if these are successful in the first instance, enable the people to resist and triumph in the end."

   If the statute in question had the effect of denying this right, and absolutely prohibiting the citizen from keeping and bearing arms, we would not hesitate to pronounce it void, as being violative of a constitutional right secured to every man by the constitution of the State. It, however, has no such scope. It simply denies to the citizen the right to enter certain places therein designated, having concealed about his person any kind of fire arms, bowie knife, &c. The places designated, into which it is made unlawful for any person to enter secretly armed with concealed weapons, are churches or places where people are assembled for public worship, school houses or other places where people have assembled for educational, literary or social purposes. Under this statute the right to enter, even such places, by any person bearing arms openly and exposed to public view is not prohibited; and if any citizen has so high a regard for the constitutional right guaranteed to him, to keep and bear arms, that he cannot forego the privilege of exercising it when entering a church where his neighbors have congregated for religious worship, or other places where they have met for educational, literary or social purposes, he can exercise it, but in doing so he must expose to view his arms and and deadly weapons, so that all may see and know that he is in the full enjoyment and exercise of his constitutional right. We do not say nor do we wish to be understood as saying that the legislature might not prohibit a person from bearing arms, even openly, in such places as are mentioned in the statute, without such prohibition to constitutional objections. No such enactment as this is before us and, we apprehend, never will be, for the moral sense of every well-regulated community would be so shocked by any one who would so far disregard it, as to invade such places with fire arms and deadly weapons exposed to public view on is person that it would very rarely, if ever, occur.

   The statute in question is nothing more than a police regulation, made in the interest of peace and good order, perfectly within the power of the legislature to make. Such, or similar statutes have been upheld in all the Spates, so lar as we have been able to ascertain, except in Kentucky. Nunn vs. the State, 1 Kelly, Ga., 243. State vs. Jumel, 13 La. Ann., 899. Owen vs. State, 81 Ala., 887. State vs. Burgess, 4 Ark., 18 State vs. Andrews, 3 Heiskel, 165. State vs. Mitchell, 3 Blackford, 229. Cochrum vs. State, 24 Tex., 394.

   The right to keep and bear arms necessarily implies the right to use them, and yet acts passed by the legislature regulating their use, or rather making it an offence to use them in certain ways and places, have never been questioned. An instance is to be found in such acts as declare that every person who shall shoot at a mark along or across a public highway shall be deemed guilty of a misdemeanor. This is certainly a police regulation, within the power of the legislature to prescribe, without infringing on the right of a person to keep, bear and use arms.

   The constitution protects a person in his right of property, and instances are numerous where the legislature has assumed to regulate and control it. A person has a right to own a mischievous or dangerous animal; yet under our statute, if the owner thereof, knowing its propensities, unlawfully suffer it to go at large or shall keep it without ordinary care, and such animal, while so at large and notconfined, kill any human being, such owner is liable to be punished as for manslaughter in the third degree. It is provided In the constitution of the United States that the freedom of speech and of the press shall not be abridged by any law of Congress, and yet this provision has never been so construed as to deny to Congress the power to make it an offence for libelous matter to be published, rendering the offender liable to prosecution and punishment for the libel so published. Such a construction, in the language of Story, "would be too wild to be indulged in bv any man." Story on the Con., ss 1880.

Judgment affirmed, in which the other judges concur, except Judge Sherwood, who dissents.

E. H. Norton, J.
Attorney-General, for defendant in error.
Reynolds & Relie, for plaintiff in error.
[The State Journal, Jefferson City, MO. Friday, April 12, 1878. Vol. 6, No. 14. Pg. 2]

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