The majority opinion by Mr. Justice CHAPMAN, concurred in by Mr. Justice BUFORD, as I read it, is predicated on the interpretation of Sec. 7202, Comp. Gen. Laws of 1927, in the light of Sec. 20, Declaration of Rights, Constitution of Florida, and the Second Amendment to the Federal Constitution. Said statute in effect requires that all persons who desire to carry a pistol or repeating rifle shall secure a license from the County Commissioners.
The Supreme Court of the United States has repeatedly held that the right to bear arms existed long before the adoption of the Federal Constitution, that it was not granted by nor was it in any manner dependent on that instrument for its existence. All the Second Amendment means is that the right to bear arms shall not be infringed by Congress. United States v. Cruikshank, 92 U.S. 588, 23 L. Ed. 592; Presser v. State of Illinois, 116 U.S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615; Miller v. Texas, 153 U.S. 535, 14 S.C. 874, 38 L. Ed. 812. No act of Congress is brought in question so the Second Amendment to the Federal Constitution has no place whatever in this controversy. It would be just as appropriate to bring in the law of gravitation.
Section 20, Declaration of Rights, Constitution of Florida grants to the people the right to bear arms in defense of themselves and the lawful authority of the State but provides that the "legislature may prescribe the manner in which they may be borne." I do not think the statute brought in question has any reference to Sec. 20 of the Declaration of Rights but if so, it does nothing more than require a license or permit to carry a pistol and certainly that is not an unreasonable regulation.
Sec. 20 of the Declaration of Rights was intended to give the people the means of protecting themselves against oppression and public outrage and was not designed as a shield for the individual outlaw, "pistol toter," and irresponsible man who is prone to load his stomach with liquor and rum, his pockets with pistols and his automobile with machine guns and make himself a nuisance to society. Carlton, et al. v. State, 63 Fla. 1,58 So. 486.
Constitutional validity should not be adjudicated if the question raised can be disposed of on any other theory. State v. Parker, 57 Fla. 170, 49 So. 124. The Constitutional validity of acts similar to this have been repeatedly upheld by the courts of this country. Wharton's Criminal Law, Vol. 3, page 2071, Eleventh Edition, citing many cases. The statute in question has been on the books for fifty years and has served a good purpose. It was designed to put a stop to "pistol toting" by irresponsible characters floating about the country in search of a pretext to shoot some one. No responsible person ever had any trouble to give the bond required. To hold that the act is invalid or that it does not apply to a pistol in the pocket of an automobile where it is just as accessible as it is in the hip pocket is weaving technical distinctions so fine that the law becomes an object of ridicule and a shield to protect the very class it was intended to punish.
It has been repeatedly held that a pistol may be considered as concealed on or about the person if carried under the seat, pushed down behind the cushion, placed in the pocket inside the left front door or carried in a satchel on the floor of the automobile. Brown v. United States, 30 F.2d 474; Porallo
v. State, 121 Ohio St. 280, 168 N.E. 135; Schraeder v. State, 28 Tex Crim. App. 66, 188 S.W. 1001; Mularky v. State,201 Wis. 429, 230 N.W. 76; Spears v. State, 112 Tex. Crim. 506,17 S.W.2d 809; Welch v. State, 97 Tex. Crim. 617,262 S.W. 485; Armstrong v. State, 98 Tex.Crim. Rep.,265 S.W. 701.
I therefore dissent and think the petitioner should be remanded.