Strickland v. State

72 S.E. 260, 137 Ga. 1, 1911 Ga. LEXIS 271

• Court: Supreme Court of Georgia
• Decided: October 5, 1911
• Status: Published

Opinions

Lumpkin, J.

The first question propounded by the Court of Appeals is whether the act of August 12, 1910 (Acts 1910, p. 134), entitled “An act to prohibit any person from having or carrying about his person, in any county in the State of Georgia, any pistol or revolver without first having obtained a license from the ordinary of the county of said State, in which the party resides, and to provide how said license may be obtained and a penalty prescribed for a violation of the same, and for other purposes,” is violative of article 1, § 1, par. 22, of the constitution of this State, which provides that “the right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.”

1. First let us glance hastily at some of the English laws which antedated the introduction into the Federal constitution, and into the constitutions of many of the States, of provisions in reference to bearing arms. As early as A. D. 1328, the statute of 2 Ed. Ill was passed, prohibiting persons “to go or ride armed by night or by day.” And it has been declared that at common law riding or going about armed with dangerous or unusual weapons, to the terror of the people, was always indictable. Bish. Stat. Cr. (3d ed.) §§ 783, 784; 4 Bl. Com. 149. By the act of 22 and 23 Car. II, c. 25, § 3, it was provided that no person who had not lands of the yearly value of £100, except certain specified persons, should be allowed to keep a gun, etc. James II arbitrarily disarmed the Protestant population, and quartered Catholic soldiers among the people. After the revolution which forced his abdication, in the first year of the reign of William and Mary -an act of Parliament was passed which recited certain abuses which had existed, and asserted certain rights and privileges. Among the grounds of complaint recited were the keeping of a- standing army within the kingdom in time of peace, without the consent of Parliament, and quartering soldiers contrary to law, and “causing several good subjects, being Protestants, to be disarmed, at the same time when Papists were both armed and employed contrary to law” The bill of rights no doubt arose from the conduct of the Stuarts. It followed the declaration of rights, to which the Prince of Orange assented. Among other things, it declared that “the subjects which are Protestants may have arms for their defense, suitable to their condition and as allowed by law.” This was not an unlimited conference of authority upon the Protestants, but only insured them rights under the law, which allowed persons of a certain rank and condition to have arms.

When the second amendment to the constitution of the United States was adopted, it declared: “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.” The third amendment also declared that no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, except in the manner to be prescribed by law. Some similar provision has been incorporated in most of the State constitutions. The language employed has not always been uniform. In some cases the preliminary reference to the importance of an efficient militia is made, and in some it is omitted, and there are other verbal differences. But the common element is the assurance of the right “to bear arms.”

One of the first questions which was raised under the constitutional provisions on this subject was whether they were violated by laws which prohibited the carrying of concealed weapons. In the case of Bliss v. Commonwealth, 2 Litt. (Ky.) 90 (13 Am. D. 251), decided in 1822, the Supreme Court of Kentucky declared that an act to prevent the carrying of concealed weapons was unconstitutional and void as impairing the constitutional right to bear arms. This ruling has not been followed, but severely criticised. The decisions are practically unanimous to the contrary. Aymette v. State, 21 Tenn. (2 Humph.) 154; State v. Wilforth, 74 Mo. 528 (41 Am. R. 330); State v. Reid, 1 Ala. 612 (35 Am. ); State v. Speller, 86 N. C. 697; State v. Mitchell, 3 Blackf. (Inch) 229; Wright v. Commonwealth, 77 Pa. 470; State v. Jumel, 13 La. Ann. 399; State v. Buzzard, 4 Ark. 18; note to case of In re Brickey, 1 Am. & Eng. Ann. Cas. 55, 56; Ex parte Thomas, 21 Okl. 770 (97 Pac. 260, 20 L. R. A. (N. S.) 1007, 17 Am. & Eng. Ann. Cas. 566, and note).

In several States other statutes, regulatory in their nature, or prohibiting the carrying of certain kinds of weapons, or the carrying of weapons under certain circumstances and at certain places, have been upheld. In Andrews v. State, 3 Heisk. (Tenn.) 165 (8 Am. R. 8), the Supreme Court of Tennessee held that an act of the legislature providing that it should not be lawful for any person to publicly or privately carry a dirk, sword-cane, Spanish stilletto, belt or pocket pistol, or revolver, was constitutional, except as to a revolver; that the word “revolver” might include a pistol adapted to the equipment of a militiaman or soldier, or a weapon not so adapted; that if the weapon designated by the statute was of the former character, the absolute prohibition against it was too broad. In the opinion, in speaking of the arms in the use of which a soldier should be trained, at one place the word “repeater” was used. But it was evident that reference was made to army and navy repeaters of a character used in modern warfare, and not to every pistol which might repeat its fire. The pocket revolver was not meant; for in Page v. State, 3 Heisk. (Tenn.) 198, the court sustained a conviction for carrying such a pistol. In the opinion it was said that “the evidence fully establishes the fact that the pistol carried by Page was not an arm for war purposes, and therefore, under the ruling of this court in the case of Andrews v. State, decided at Jackson, it was a weapon, the carrying of which the legislature could constitutionally prohibit.” In Fife v. State, 31 Ark. 455 (25 Am. R. 556), an act was under consideration which provided that “any person who shall bear or carry any pistol of any kind whatever, or any dirk, butcher or bowie knife, or sword or spear in a cane, brass or metal knucks, or razor, as a weapon, shall be adjudged guilty of a misdemeanor,” etc. The court, in construing the act, said: “Prom the company in which the pistol is placed, and the known public mischief which the legislature intended by the act to prevent, it is manifest that the pistol intended to be proscribed is such as is usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels and brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and necessary for ‘the common defense.’”' It was held that the act did not infringe the constitutional privilege of the citizen to bear arms.

In State v. Wilburn, 7 Baxt. (Tenn.) 57 (32 Am. R. 551), it was held that a law prohibiting the carrying of an army pistol, except in the hand, was not violative of the constitutional provision of that State in regard to the right of citizens to bear arms for the common defense, which also stated that the legislature should have power, by law, to regulate 'the wearing of arms, with a view to prevent crime. In Haile v. State, 38 Ark. 564 (42 Am. R. 3), it was held that a statute prohibiting the carrying of army pistols by nonmilitary persons, except uncovered and in the hand, was not unconstitutional.

In West Virginia an act was passed which made it a misdemeanor to carry about the person any revolver or other pistol, dirk, bowie-knife, razor, slungshot, billy, metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character, or to sell or furnish any such weapon to one whom the furnisher knew, or had reason from his appearance or otherwise to believe, to be under the age of 21 years. Certain exceptions were made as to keeping or carrying a pistol about the dwelling of the owner, or from the place where it was purchased to his dwelling-house, etc. In State v. Workman, 35 W. Va. 367 (14 S. E. 9, 14 L. R. A. 600), it was held, that whenever an act of the legislature can be so construed as to avoid conflict with the constitution, such construction will be adopted by the courts, and that the act was not unconstitutional. In Ex parte Thomas, 21 Okl. 770 (97 Pac. 260, 20 L. R. A. (N. S.) 1007, 17 Am. & Eng. Ann. Cas. 566), it was held that the word “anns,” as used in the Oklahoma constitution, providing that “the right of a citizen to keep and bear arms . . shall never be prohibited,” has reference to such arms as are recognized in civilized warfare, and not to weapons mentioned in the statute of that State which forbade the carrying about the person of any pistol, revolver, bowie-knife, dirk, knife, loaded cane, billy, metal knuckles, or any other offensive or defensive weapon, except as in the act provided.

In City of Salina v. Blaksley, 72 Kan. 230 (83 Pac. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. R. 196, 7 Am. & Eng. Ann. Cas. 925), the Supreme Court of Kansas went further than any other case which has come to the attention of the writer, and held that the provision of the constitution of that State that “the people shall have the right to bear arms for their defense and security” was a limitation upon the legislative power to enact laws prohibiting the bearing of arms in the militia, or any other military organization provided for by law, but was not a limitation on legislative power to enact laws prohibiting and punishing the promiscuous carrying of arms or other deadly weapons.

In Re Brickey, 8 Idaho, 597 (70 Pac. 609, 101 Am. St. R. 215), the Supreme Court of Idaho held, that, while it is undoubtedly within the police power of the legislature to prohibit the carrying of concealed deadly .weapons, the legislature has no power to prohibit absolutely the carrying of deadly weapons in any manner whatsoever, in cities, towns, and villages; such a regulation being-repugnant to those provisions of both the State and Federal constitutions which guarantee to the citizens the right to bear arms. In so far as reference was made to the Federal constitution, the decision was the result of oversight, as will presently be seen.

An examination of the various decisions, whether dealing with laws against carrying concealed, weapons, or with regulations as to the manner of carrying certain weapons, or the prohibition against carrying weapons of a particular character, will show that two general lines of reasoning have been employed in upholding such statutes : first, that such provisions are to be construed in the light of the origin of the constitutional declarations, of their connection with words declaratory of the necessity for an efficient militia or for the common defense, or the like, where they are used, and in view of the general public purpose which such provisions were intended to subserve; and second, that the right to bear arms, like other rights of person and property, is to be construed in connection with the general police power of the State, and as subject to legitimate regulation thereunder. Where a State constitution in terms provides, in connection with the right to bear arms, that the State may regulate this right, or may regulate the manner of bearing arms, these words expressly recognize the police power in direct connection with the constitutional declaration as to the right. But even where such expressions do not occur, it has been held that the different provisions of the constitution must be construed together, and that the declaration or preservation of certain rights is not to be segregated and-treated as arbitrary, but in connection with the general police power of the State, unless the language of the instrument itself should exclude such a construction. Thus, if the right to bear arms includes deadly weapons of every character, and is absolute and arbitrary in its nature, it might well be argued, as it was in earlier days, that the citizen was guaranteed the right to carry weapons or arms, in the broadest meaning of that term, whenever, wherever, and however he pleased, and that any regulation, unless expressly provided for in the constitution, was an infringement’of that right. The ruling that the legislature may prohibit the carrying of concealed weapons essentially concedes the police power of regulation to some extent. If this be conceded, the question then becomes one as to whether the particular regulation involved is legitimate and reasonably within the police power, or whether it is arbitrary, and, under the name of regulation, amounts in effect to a deprivation of the constitutional right.

Various other rights are guaranteed by the constitution, but they are construed in connection with the general police power of the State. The constitution prohibits the passage of any law curtailing or restraining the liberty of speech or of the press. But it has never been held that this gave the arbitrary right to a person to make public speeches or shout his sentiments, at all times and in all places, regardless of interference with public order; nor has it ever been held that such guaranties interfered with laws making libel and slander punishable. The right of contract has been held to be a part of the liberty of the citizen, and yet various contracts have been subjected to police regulation. The right to go from place to place is subject to police regulation for the public health and safety, as, for instante, in times of epidemics. Other illustrations might readily be given.

Let us now consider more especially the laws and decisions of this State on the subject. The provision in reference to bearing arms appeared in the constitution of 1861. It was again incorporated in the constitution of 1865 and that of 1868. In the latter the same language was used as in the constitution of 1877, except that it contained the preamble: “A well-regulated militia being necessary to the security of a free people.” In the constitution of 1877, .these words were not employed in that immediate connection, but were used in article 10, § 1, par. 1, treating of the militia; and it was doubtless deemed unnecessary to reiterate them in both connections. While proceedings of a constitutional convention may be looked to, they do not furnish a controlling construction of the meaning of words in the constitution. Such an instrument derives its vitality and force from its adoption by the people, rather than from the intentions or views of certain members of the convention, or expressions of individual opinions in speeches.

The first case which arose in this State on the subject under consideration was that of Nunn v. State (which was decided in 1846), 1 Ga. 243. At that time it was still a somewhat mooted question whether- the second amendment to the constitution of the United States was a limitation on the power of Congress only, or also affected that of the State legislatures, although Barron v. Baltimore, 7 Pet. 243 (8 L. ed. 672), had been decided. An examination óf the decisions of courts will show that some very reputable authorities had expressed the opinion that the amendment applied to State legislatures, as well as to Congress. As already noted, the Supreme Court of Idaho, as late as 1902, still treated it as a limitation upon the State governments, and as a' guaranty to the individual citizen. In this condition of judicial consideration, the Nunn case was decided. It was said: “A law which merely inhibits the wearing of certain weapons in a concealed manner is valid. But so far as it cuts ofll the exercise of the right of the citizen altogether to bear arms, or, under the color of prescribing the mode, renders the right itself useless, it is in conflict with the constitution, and void.” As at that time there was no provision on the subject in the State constitution, and the only constitutional declaration'quoted was from the second amendment to the Federal constitution, it is clear that the court took the view that such amendment was a restriction upon the legislature of the State, as well as upon Congress, and what was said was in reference to the Federal constitution. The opinion, contains some broad language used in discussion; but evidently it was never intended to hold that men, women, and children had some inherent right to keep and carry arms or weapons of every description, which could not be infringed by the legislature, unless as a result of the constitutional provision -under 'consideration. Since that time the Supreme Court of the United States, whose construction of the Federal constitution is conclusive, has held that the second amendment to that instrument was a restriction upon the power of Congress only. In United States v. Cruikshank, 92 U. S. 542 (23 L. ed. 588), it was said: “The second amendmeut means no more than that it [the right to bear arms] shall not be infringed by Congress, and has no other effect than to restrict the powers of the national government. Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States.” Presser v. Illinois, 116 U. S. 252 (6 Sup. Ct. 580, 29 L. ed. 615); Twining v. New Jersey, 211 U. S. 78 (29 Sup. Ct. 14, 53 L. ed. 97). In Stockdale v. State, 32 Ga. 225, the only point really decided was whether the court erred in refusing a request to give a charge as to what exposure of a weapon would satisfy the act prohibiting the carrying of concealed weapons, and in charging to the effect that, if any part of a pistol was concealed, it was a violation of the law. No constitutional question was involved; and, so far as the reference to the Nunn case mentioned such a question, it was obiter dictum.

In Hill v. State, 53 Ga. 472, an act which made it penal to carry about the person any dirk, bowie-knife, revolver, or any kind of deadly weapon to any court of justice or any election grounds or-precinct, or any place of public worship, or any other public gathering in this State, except militia muster grounds, was attacked as violative of the provision of the constitution of 1868 in regard to the right of the people to keep and bear arms. Speaking of the meaning of this clause of the constitution, McCay, J., made use of the following vigorous utterance: “It is to secure the existence of a well-regulated militia; that, by the express words of the clause, was the object of it, and I have always been at a loss to follow the line of thought that extends the guaranty to the right to carry pistols, dirks, bowie-knives, and those other weapons of like character, which, as all admit, are the greatest nuisances of our day. It is, in my judgment, a perversion of the meaning of the word' ‘arms/ as used in the phrase ‘the right to keep and bear arms/ to treat it as including weapons of this character. The preamble of the clause is the key to the meaning of it. The word ‘arms’ evidently means the arms of a militiaman, the weapons ordinarily used in battle, to wit, guns of every kind, swords, bayonets, horseman’s pistols, etc. The very words ‘bear arms’ had then, and now have, a technical meaning. The ‘arms-bearing5 part of a people were its men fit for service on the field of battle. That country was ‘armed’ that had an army ready for fight. The call ‘to arms’ was a call to put on the habiliments of battle, and I greatly doubt if in any good author of those days a use of the word ‘arms,’ when applied to a people, can be found, which includes pocket pistols, dirks, sword-canes, toothpicks, bowie-knives, and a. host of other relics of past barbarism, or inventions of modern savagery of like character. In what manner the right to keep and bear these pests of society can encourage or secure the existence of a militia, and especially of a well-regulated militia, I am not able to divine.” He said, that if it should be held (following the opinion in the Nunn case) that the guaranty of our State constitution was intended to include weapons of the character mentioned, the act was still not unconstitutional; that the power to “prescribe the manner in which arms may be borne” should be given a reasonable interpretation, and that it included the power to prescribe, not only the particular way in which such weapons might be carried, such as openly or secretly, on the shoulder or in the hand, loaded or unloaded, cocked or uncocked, capped or uncapped, but also the time when and the place where they might be borne. He said: “The constitution is to be construed as a whole. One part of it is not to be understood in such a sense as will militate against another. It is as well the duty of the General Assembly to pass laws for the protection of the person and property of the citizens, as it is to abstain from any infringement of the right to bear arms. The preservation of the public peace, and the protection of the people against violence, are constitutional duties of the legislature, and the guaranty of the right to keep and bear arms is to be understood and construed in connection and in harmony with these constitutional duties.” Bish. St. Or. (3d ed.) § 193. Surely no one will contend that children have a constitutional right to go to school with revolvers strapped around them, or that men and women have a right to go to church, or sit in the court-rooms, or crowd around election precincts, armed like desperadoes, and that this is beyond the power of the legislature to prevent.

It was argued that the requirement of a license to carry the weapons named in the act, and the fixing of a fee of 50 cents, were obnoxious to the constitutional provision. If this argument be sound, then practically the whole licensing system would be destroyed on the ground that to require a license is not a regulation, but a prohibition. Many persons are required to obtain a license before engaging in certain businesses or performing certain acts; where a legitimate exercise of the police power of the State, it has never been thought that this was a violation of any constitutional right as to person or property. It was contended also that a requirement of a bond of $100, conditioned upon a proper and legitimate use of the -weapon, rendered the act obnoxious to the constitution. It was said that this might deprive some persons who could not give a bond of the right to carry the weapon. There are many cases in which a person may exercise a certain right by giving a bond. Numerous public officers are required to furnish bond before taking charge of the office, but this has not been thought to be unconstitutional because some citizen might desire to hold the office who could not give the bond. The right to appeal to the courts is guaranteed by the constitution. In order to obtain a writ of attachment the plaintiff must give bond. It would hardly be said that, because he could not give the bond required by the statute, he was unconstitutionally excluded from appealing to the court in that manner. Illustrations might be multiplied. We think, upon careful consideration, that the regulatory provisions of the act of 1910 are not so arbitrary or unreasonable as to amount, in effect, to a prohibition of the right to bear arms, or an infringement of that right as protected by the constitution.

Acts of the legislature ought to be given a reasonable and sensible construction, and one which will not conflict with the constitution, where it is practicable to do so. County of DeKalb v. City of Atlanta, 132 Ga. 727 (2), (65 S. E. 72); Southern Ry. Co. v. Atlanta Sand Co., 135 Ga. 36 (5), (68 S. E. 807); Atlantic Coast Line R. Co. v. State, 135 Ga. 545, 561 (69 S. E. 725, 32 L. R. A. (N. S.) 20). The illustrations given by Blackstone, in connection with his rules for construing statutes, are familiar. Among them is a law forbidding a layman to “lay hands” on a priest, which was construed to include hurting him with a weapon; a law forbidding all ecclesiastical persons to purchase “provisions” at Eome, which should be construed as not including “grain or other victuals,” but nominations to benefices, which were known as ecclesiastical provisions; a law declaring that those who in a storm forsook a ship should forfeit all property therein, and the- ship and lading should belong to those who staid in it, which was construed not to apply in favor of a sick passenger, who, by reason of his disease, was unable to get out and escape; and a.law which declared that “whoever draws blood in the streets” should be punished, which was held not to apply to a surgeon, who opened the vein of a person who fell down in the street in a fit. 1 Bl. Com. 60, 61. We are not called-upon to determine whether tile act of 1910 offends the rules of rhetoric or English grammar, but whether it violates the ■constitution. The act should receive a reasonable construction. Suppose that the owner of a pistol should accidental!}'' drop it from the window of his dwelling to the street. A narrow and literal construction of the act might make it penal for him to pick it up and carry it into his house. It is lawful to sell pistols. But a similar construction might make it impossible for the carrier to deliver them to the dealer, or the dealer to deliver them to the customer. We will not anticipate that any such construction will be given, but one which will carry out the legislative purpose.

2. The second question propounded by the Court of Appeals is whether the act of 1910 is in violation of the right of a citizen, under article 8, § 2, of the constitution of the United States, which provides: “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.” What has been said above answers this question in the negative. It is not contended that anything contained in this act affects, or was intended to affect, any Federal law passed in pursuance of the constitution of the United States in regard to the regulation of militia.

All the Justices concur, except Beclc, J., absent, and