Haile v. State , 38 Ark. 564 ( 1882 )

Eaicin, J,

The defendant below was charged before a justice of the peace, with the offense of carrying a pistol contrary to the Statute, and upon conviction appealed to the Circuit Court.

He was then tried, de novo, and convicted upon the .agreed state of facts contained in the reporter’s statement, and fined fifty dollars. From this judgment he appeals.

The proof shows all the essential elements of the offense, as defined by section 2, of the Act of April 1st, 1881, which prohibits the wearing or carrying any such pistol as ■is used in the army or navy of the United States, in any manner, except uncovered, and in the hand, save under ■circumstances which, in this case, did not exist.

The appellant has no brief, but we suppose his exceptions refer to the validity of the act as unconstitutional.

The first two sections are complete in themselves, to constitute and prohibit the offense, and may stand without reference to other sections of the act, concerning which, no opinion is now expressed. The question is, can the Legislature regulate the mode of carrying any arms which the citizens have the constitutional right to keep and bear for their common defense ? We have decided that it may, to-some extent, which means that it may, in a reasonable manner, so as, in effect, not to nullify the right, nor materially embarass its exercise.

The constitutional provision sprung from the former-tyrannical practice, on the part of governments, of disarming the subjects, so as to render them powerless against oppression. It is not intended to afford citizens the means-of prosecuting, more successfully, their private broils in a free government. It would be a perversion of its object, to. make it a protection to the citizen, in going, with convenience to himself, and after his own fashion, prepared at all times to inflict death upon his fellow-citizens, upon the occasion of any real or imaginary wrong. The “common defense” of the citizen does not require that. The consequent terror to timid citizens, with the counter violence which would be incited amongst the more fearless, would, be worse than the evil intended to be x'emedied. •

The Legislature, by the law in question, has sought to steer between such a condition of things, and an infringement of constitutional rights, by conceding the right to keep such arms, and to bear or use them at will, upon oxxe’s own premises, and restricting the right to wear them elsewhere in public, unless they be carried uncovered in the hand. It must be confessed that this is a vexy inconvenient mode of carx’ying them habitually, but the habitual carrying does xxot seem essential to “common defense.” The inconvenience is a slight matter compared with the danger to the whole community, which would result fx*om the common practice of going about with pistols in a belt, ready to-be used on evexy outbreak of ungovernable passion. It is a police regulation, adjusted as wisely as the Legislature thought possible, with all essential constitutional rights.

The constitutional right is a very valuable one. We would not disparage it. A condition of things within the experience of men, still very young, illustrates the importance of keeping alive in the mind, and well defined, these old land-marks'of Saxon liberty. “Semper paratus,” is a good motto. Yet if every citizen may keep arms in readiness upon his place, may render himself skillful in their use by practice, and carry them upon a journey without let ox-hindrance, it seems to us, the essential objects of this particular clause of the bill of rights will be preserved* although the citizen be required to carry them uncovered* and in the hand, off his own premises, if he should deem it. necessary to.carry them at all.

The clause, upon this point, of the Tennessee bill of rights, is similar to oux-s, except that it expressly reserves to the Legislature the power, “by law, to regulate the wearing of arms, with a view to prevent cx-ime.” We think this reservation a matter of superabundant caution, inserted to prevent a doubt, and that, unexpressed, it would x-esult from the undefined police powers, inhex-ent in all governments, and as essential to their existence as any of the muniments of the bill of rights. Only the Legislature must take care that in regulating, it does not destroy, nor materially interfere with the objects of the constitutional provision.

A Tennessee law, passed .under this constitution in 1871, prohibiting the carx-ying of an army weapon, except opexily, and in the hand, was held constitutional (State v. Welburne, 7 Jere Baxter, 57). We think the first axxd second sections of our Act of 1881, as free from objection.

There need be xxo fear, from axxy thing in these sectioxxs, that the citizen may not always have arms, axxd be skilled in their proper use, whenever the common defense may require him to take them up.

Affirm.