58 So. 53 | Ala. | 1911
Section 2 of Acts Special Session 1909, p. 258, says: “It shall be unlawful for any person to carry a pistol about his person on premises not his own or under his control,” etc. Section 5 provides that the indictment is sufficient if it charges that the defendant carried a pistol “on premises not' his own or under his control.” This is a criminal statute, and must he strictly construed, and, so construed, it means that a person is prohibited from carrying an unconcealed pistol only upon “premises” not his own or under his control ; that is, he may carry it anywhere except upon the premises of another. It is therefore a mere regulation as to carrying an unconcealed pistol, and is intended to prevent one person from going armed with a pistol upon the premises of another, and does not prohibit the carrying of same, if not concealed, upon the highway or elseAvhere other than upon the premises of another.
Said section 2 is not Adolative of section 26 of the Bill of Rights, as it merely prevents the carrying of arms for offensive purposes, and does not deprive a person of the right to bear arms in defense of himself or the state. Moreover, section 4 of the act authorizes the defendant to give in evidence the fact that he had good reason to apprehend an attack, either in mitigation of the fine or in justification of the offense.
Tlie response the court- should, in my opinion, make to the inquiry submitted by the Court of Appeals is set forth in the folloiving opinion, delivered for the court on original consideration :
The certification of the Court of Appeals submits this question: “Is the provision of section 2 of the act to regulate the right tó carry a pistol in this state, approved August 26, 1909 (General and Local Acts Special Session 1909, p. 258), violative of section 26 of the Constitution of the state of Alabama. ‘That every citizen has a right to hear arms- in defense of himself and the state’?” The first and second sections of that act read:
“Section 1. Be it enacted by the Legislature of Alabama, that it shall be unlawful for any person to carry a pistol concealed about his person.
“S'ec. 2. It shall be unlawful for any person to carry a pistol about his person on premises not his own or under his control, provided this section shall not apply to any sheriff or his deputy or police officer of an incorporated town or city in the lawful discharge of the duties of his office or United States marshal or their deputies, rural free delivery mail carriers in the discharge of their duties as such or bonded constable in the discharge of their duties as such.”
Section 4 of the act, which has reference to the offenses created by sections 1 and 2, provides:
“Sec. 4. The defendant may give evidence that at the time of carrying the pistol he had good reason to apprehend an attack which the jury may consider in mitigation of the fine or jurisdiction of the offense.”
Section 1 prohibits the carrying of a pistol concealed, about the person, at any time and everywhere. With excéptions in favor of the officials designated therein, section 2 restricts the carrying “of a pistol about his
Section 26 of the organic law provides: “That every citizen has a right to bear arms in defense of himself and the state.” This clause of the Bjll of Rights has had place in each of the several Constitutions of this state, from its admission in the Union. By the second amendment to the Constitution of the United States, it was added to that instrument 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.”. This amendment, however, has been ruled to be a' restriction operative only upon the federal power. — Miller v. Texas, 153 U. S. 535, 14 Sup. Ct. 874, 38 L. Ed. 812. The clauses quoted from our Constitutions, from the beginning, have been ascribed, in suggestion of incorporation therein, to the Bill of Rights formulated by the Parliament, in 1688, as conditions tó the recognition and installation of William and Mary as the reigning sovereigns, after the flight of James II, whose assumptions of authority and power Avere deemed violative and subversive of the liberties of the people of England, chief among Avhich subjects of abuses was that of the Protestant religion. — 9 St. at Large, 1 William and Mary, p. 67 et seq. To circumscribe the poAver of the sovereign, and to render more secure from invasion the rights involved, consistent with the favor Avith which William and Mary viewed the rights of at least a class of their subjects, the Bill of Rights subscribed by them contained, among other declarations, this: “That the subjects Avhich are Protestants may bear arms for
Our organic law declares the right of .the citizen to bear arms in defense of self and the state, but omits any express reference of the subject to legislative action. But this omission is not important in any sense, because, with us, the Constitution is deemed an instrument of limitation of power, not a grant thereof. So, viewed, .it was entirely consistent for this court, in State v. Reid, 1 Ala. 612, 35 Am. Dec. 44, to hold that the affirmance in the Constitution of the right to bear arms was a limitation on legislative power to deny that right, but that, in phraseology and in the evil intended to be remedied, the clause declaring the right did not, expressly or impliedly, inhibit the Legislature from the regulation of the exercise of the right — in that instance, the manner of carrying certain weapons. In Reid’s Case it was said: “The question recurs: Does the act, ‘to suppress the evil practice of carrying weapons secretly,’ trench upon the constitutional rights of the citizen? We think not. The Constitution, in declaring that ‘every citizen has the right to bear arms in defense of
Since the pronouncement in ReicVs Case, the clause under consideration has been reordained, and comes noAV to our hands for interpretation, as affecting the validity of the second section of the act approved
In this instance the Legislature has determined, presumably upon the idea of conservation of the public interest and welfare, that to carry a pistol off one’s premises, or off those under one’s control, is inimical to such interest and welfare, and so prohibits it. To justify this court in pronouncing this phase of the act violative of the constitutional right to bear arms, the obligation is on its assailant to show, to requisite certainty, that the prohibition is not a regulation, but an infraction of the broader right to bear arms. The “safety of the people and the advancement of public morals” is certainly a latitudinous qualification for the exercise of the right
Within the general inquiry, which appellant’s counsel concede is whether the restriction of section 2 is a •regulation or a prohibition of the constitutional right to bear arms, is the specific one, to decide which determines the constitutional validity of section 2, viz.: Is the areal restriction of the right to carry a pistol, to premises owned and controlled by a person, a prohibition of the exercise of the constitutional right to bear arms, or, conversely; is it a regulation of that right?
We have been referred to numerous adjudications in other jurisdictions touching, or determinative of, phases of the concrete question in hand. Many of these may be found in the notes to Salina v. Blaksley, reported in 115 Am. St. Rep. 196, 199, and in 3 L. R. A. (N. S.) 168-170, and in the notes to In re Brickey, 1 Ann. Cas. 55, and in Ex parte Thomas, 17 Ann. Cas. 566-571. There is wide and fundamental divergence of opinion upon the scope and effect of constitutional provisions declaring the light involved. We have profited by their general discussion, and have formed our response to the concrete question last stated in the light of their learning, and in obedience to the effect, in constitutional intent, of the decision of this court in Reicl’s Case, supra, after which section 26 has been several times reordained.
fin order to hold that section 2 is violative of the constitutional right to bear arms it must, of necessity, be affirmed that there is no legislative power to prescribe places within the state whereat arms may not be borne. Yet it would seem to be beyond any semblance of doubt
In Reid’s Case, supra, it was said that “the right guaranteed to the citizen is not to bear arms on all occasions and in all places, but merely in defense of himself and the state.” The only objective of the right guaranteed is protection — defense. To impair it the enactment assailed must qualify, beyond proper regulations of police, the ability to avail of the objective of the constitutional guaranty. The Legislature, to which is committed the establishment of regulations of police,. are authorized to control the exercise of the constitutional right with such regulations “as may be dictated by the safety of the people and the advancement of public
The Legislature, to whom the Constitution commits the right to regulate, in the interest of the public weal, the enjoyment of the major right to bear arms in defense, has expressed its judgment in section 2 by the restriction of the carrying of one weapon to a limited, yet intimately associated with the citizen, area, namely, his own, or controlled, premises. There the weapon is available to his defense. Elsewhere, every other weapon of defense may be openly borne. To deny the validity of section 2 would, without doubt, restrict the legislative right to regulate, as broadly declared in Reid’s Case, to the manner only of bearing arms; and this would clothe the constitutional right to bear arms with an effect to deny to legislative function the power to determine,
Counsel for appellant propound a number of supposititious cases, with the view to the demonstration of the invalidity of section 2. Some of them lead only to the administrative phases of the law, and not to its unconstitutionality. It is strongly urged that section 2 would prevent the carrying, by an owner, of a pistol from his home or premises to his place of business across, therefrom, a highway. The suggestion this illustration makes is not referable to the right to bear arms, but to the restriction upon the enjoyment of the property right the owner has in the pistol he would carry from his home to his place of business — a manifestly different matter from the guaranty of section 26. Property rights are held subject to the proper exercise, by the state, of the police power. That section 2' of this act unwarrantably invades, or would invade, a property right, or the enjoyment of property, is not urged,; and, if so it were, it would be clearly unsound and unavailing to avoid section 2 of this act.