Schubert v. DeBard

398 N.E.2d 1339, 73 Ind. Dec. 510, 1980 Ind. App. LEXIS 1260

• Court: Indiana Court of Appeals
• Decided: January 15, 1980
• Docket: 3-177A10
• Status: Published

Opinions

GARRARD, Presiding Judge.

Appellant, Joseph L. Schubert, applied pursuant to IC 35-23-4.1-5 for a license to carry a handgun. When his application was denied he filed a timely petition for administrative review. IC 4-22-1-24. A hearing was held and the superintendent of the Indiana State Police found that Schubert “did not have a proper reason” to be licensed and denied the permit. The trial court sustained the superintendent, and this appeal follows.¹

The evidence disclosed that in June 1975, appellant applied for a permit to carry a handgun for self-protection. He had previously held such permits. His most recent one expired in July 1973. He had carried a handgun when engaged in part-time employment in the nature of security work. He also had held a special police commission from the City of Port Wayne and a St. Joseph’s County Deputy Sheriff’s commission. Both commissions had been revoked prior to his application for the license.

Schubert offered as evidence of the need to protect himself two items he had received in the mail in 1975. One was a copy of a picture of a pig with appellant’s name written above it. The other was a letter, signed “The Assassinater’s,” demanding $1250 or “Pig, you are dead.” No method or place of payment was specified. Appellant stated he suspected his brother might have sent the letters. However, he did not discuss the matter with his brother nor report it to the police. He also testified that while photographing the house where his mother lived, in connection with “secret” work for the U.S. Department of the Treasury, his brother ordered him out of the area and fired a rifle at the van in which he was riding. He did notify the prosecutor’s office about the shooting incident, but no charges were brought. He claims that as a result of these incidents he fears for his life and needs to carry a gun to protect himself.

A report summarizing a background investigation made of appellant when he applied for a private detective’s license in 1971 was admitted without objection. That report concluded that appellant was a “chronic liar” suffering from a “gigantic police complex.” The report, as well as testimony of a police officer at the hearing, indicated that on occasion, when he had been licensed to carry a gun, appellant had carried and displayed his pistol at inappropriate times which did not require the use of a gun for personal safety or to expedite the duties of his employment. Moreover, although several of the jobs he had held might be broadly characterized as security work, they appear to have generally involved directing traffic in parking lots. Several of those interviewed during the course of the investigation, including former employers and the sheriff who both created and revoked his deputy sheriff’s commission, felt appellant had “mental problems.”

The licensing statute, IC 35-23 — 4.1-5, provides in salient part,

“(a) A person desiring a license to carry a handgun shall apply to the chief of police or corresponding police officer of the municipality in which he resides. If that municipality has no such officer, or if the applicant does not reside in a municipality, he shall apply to the sheriff of the county in which he resides, . The officer to whom the application is made shall conduct an investigation into the applicant’s official records and verify thereby the applicant’s character and reputation, and shall in addition verify for accuracy the information contained in the application, and shall forward this information together with his recommendation for approval or disapproval ... to the superintendent who may make whatever further investigation he deems necessary. In addition, whenever disapproval is recommended, the officer to whom the application is made shall provide the superintendent and the applicant with his complete and specific reasons, in writing, for the recommendation of disapproval. If it appears to the superintendent that the applicant has a proper reason for carrying a handgun and is of good character and reputation and a proper person to be so licensed, he shall issue to the applicant either a qualified or an unlimited license to carry any handgun or handguns lawfully possessed by the applicant. . A license to carry a handgun shall not be issued to any person who has been convicted of a felony violation of this chapter or who has been convicted of a crime of violence, as defined in this chapter, in this State or any State or country.” (emphasis added)

Establishing such a licensing procedure for handguns is not violative of the right to bear arms as guaranteed by the Second Amendment or Art. 1, Sec. 32 of the Indiana Constitution. Matthews v. State (1958), 237 Ind. 677, 148 N.E.2d 334.

Schubert contends, however, that the Indiana Constitution affords him the right to bear arms for his own defense. Thus, he urges that where self-defense is properly asserted as the reason for desiring a firearms license, and the applicant is otherwise qualified, the license cannot be withheld upon an administrative official’s subjective determination of whether the applicant needs defending.

Our Art. 1, Sec. 32, is worded differently than the Second Amendment.² It states simply and plainly,

“The people shall have a right to bear arms, for the defense of themselves and the State.”

It is well settled that we are to presume that constitutional language was carefully chosen to express the framer’s intention. State v. Grant Sup. Ct. (1930), 202 Ind. 197, 172 N.E. 897, 71 A.L.R. 1354; State v. Dearth (1929), 201 Ind. 1, 164 N.E. 489. The words used are to be taken in their general and ordinary sense. Benton Co. Council v. State ex rel. Sparks (1946), 224 Ind. 114, 65 N.E.2d 116; Tucker v. State (1941), 218 Ind. 614, 35 N.E.2d 270.

Moreover, the constitutional debate over this section³ underscores the framers’ intent that two purposes, rather than one, were served by the section.⁴ Thus, the introduction to one stage of debate opened with the following,

“The twelfth section, providing that no law should restrict the right of the people to bear arms, whether in defense of themselves or of the state, next came up in order.” (emphasis added)

2 Debates in Indiana Convention 1850, at 1391.

We think it clear that our constitution provides our citizenry the right to bear arms for their self-defense. Furthermore, in Matthews v. State, supra, our Supreme Court held that if it is determined under IC 35-23-4.1 — 5 that the applicant has met the conditions of the statute, the superintendent has no discretion to withhold the license. 148 N.E.2d 337.

In Schubert’s case it is clear from the record that the superintendent decided the application on the basis that the statutory reference to “a proper reason” vested in him the power and duty to subjectively evaluate an assignment of “self-defense” as a reason for desiring a license and the ability to grant or deny the license upon the basis of whether the applicant “needed” to defend himself.

Such an approach contravenes the essential nature of the constitutional guarantee. It would supplant a right with a mere administrative privilege which might be withheld simply on the basis that such matters as the use of firearms are better left to the organized military and police forces even where defense of the individual citizen is involved.⁵

We therefore hold that Schubert’s assigned reason which stood unrefuted was constitutionally a “proper reason” within the meaning of IC 35-23-4.1-5.

We recognize, however, that there was conflicting evidence on Schubert’s suitability to be licensed and that those issues were not attempted to be resolved in the original determination.

We therefore reverse the determination and direct that the matter be remanded for a new hearing pursuant to IC 4-22-1-24 and for further proceedings consistent herewith.

Reversed and remanded.

HOFFMAN, J., concurs and files separate opinion. STATON, J., dissents and files separate opinion.

1 . See IC 4-22-1-14 et seq.

2 . “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.”

3 . The section was originally proposed and considered as Article 20, Section 12. It became Article 1, Section 32 as finally reported out by the Committee on Revision and adopted by the convention. Convention Journal 1850, 873, 880.

4 . Compare the consideration of the Second Amendment in U. S. v. Miller (1939), 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206. The debate focused upon whether special language should be included to permit the legislature to regulate the carrying of concealed weapons. 2 Debates in Indiana Convention 1850, at 1385, 1391.

5 .When stripped of its invective this would be the result of the position advanced by the dissent. Any ordinary citizen applying for license could be “factually” denied a permit because no one had actually threatened him. Thus, he would have no “need” to defend himself. Similarly, if threatened, the permit could be denied on the basis that the official police agencies were capable of handling the matter so that he had no “need” to defend himself.