Choate v. Redding ( 1857 )

Hemphill, Ch. J.

The appellant alleges that his rifle gun, being the only gun owned by him, has been levied upon ; and the only question of any importance in the case is, whether the gun is exempt from execution.

It is very extraordinary that there has not been express provision by Statute, to secure the arms of individuals against all claims of every description. It has been comparatively but a few years since the first settlements of Americans were made in Texas. The whole country was then infested by savage s Subsequently there were hostilities with Mexicans, and the frontiers are still exposed to the incursions of Indians. The country has been settled, and still is settling, by, in a great measure, the force of arms. The people of Texas are now, and have ever been, emphatically an armed population.

The right to bear arms has always been considered by a free people, as of almost priceless value ; so much so, that it is secured by an express provision of the Constitution. The right of citizens to bear arms in defence of themselves and of the State or Republic, is declared by the Constitution of Texas. And by the Constitution of the United States it is declared, that 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.

If Militia Laws were enforced, a citizen appearing without arms on the muster ground, would be fined for his delinquency.

But, though the right to keep and bear arms cannot be infringed by legislation, yet, strange as it may be, it must succumb before the power of a creditor; at least it is not expressly protected by Statute.

There may be circumstances, perhaps, under which a man's rifle may be regarded as an article of household and kitchen furniture, or rather of the furniture of his tent or cabin, on the frontier. Formerly, when men went from the house to labor, with their servants or slaves, a gun was an implement as necessary as the axe, the scythe or the hoe.

If a merchant’s books, his iron chests and office iurniture, are exempt, as being the necessary apparatus of his trade, I see no reason why the gun of a hunter or frontiersman, essential to his defence, and necessary in procuring subsistence for himself and family, should not also be exempt from execution.

The case before us does not present such circumstances as to bring it within the scope, purview and spirit of the Statute of 1839 ; and we therefore feel constrained and do adjudge that the judgment of the District Court be affirmed.

Judgment affirmed.