The defendant was convicted of carrying a concealed weapon, a revolver, and his punishment-was assessed at a fine of $175. He has appealed.
On the trial the defendant offered evidence tending to show that he had just before his arrest been assaulted by one Tyndal, who fired several shots at him, and that he, the defendant, was carrying the pistol under well grounded fears for his personal safety. The court excluded such evidence. The propriety of that ruling is the only question involved' in this appeal, which comes to this court because of the fact that it involves the construction of both the Federal and State constitutions.
Counsel for appellant contends that the word “practice” as there used hаs reference to the man who individually makes a practice of wearing concealed weapons, as distinguished from him who temporarily wears them for self-defense. We think otherwise. The word “practice” as there used hаs reference to an existing practice or custom, more or less general among citizens, of wearing such weapons concealed; and the intention is that the Legislature shall have the power to destroy such practice or custom by prohibiting the wearing of concealed weapons by any individual, even the wearing of them temporarily and for self-defense. For it is only by punishing the individuals severally that the practice or custom can be destroyed.
That word “practice” will be found in some of the cases hereinafter cited, and in no case is it used in the sense contended for by the appellant. Appellant’s brief says:
“The word practice as used therein is significant. It would be doing outrage to every natural impulse and to the universal sentiment of mankind to say that a man may not bear arms in such manner and of such*210 character and at such time and-place as he may deem necessary for self-preservation, leaving always to the law of the land and to his peers the question of his good faith and the necessity or reasonableness of his conduct. ’ ’
A claim so boldly made should be squarely met. "We have been able to find but two cases in the Union holding a law unconstitutional because it prohibited the carrying of concealed weapons. In State v. Rosenthal,
The other case is Bliss v. Commonwealth, 2 Litt. (12 Ky.) 90, decided in 1822. It held a statute against carrying certain weapons concealed to be contrary to the сonstitution which provided “that the right of the citizen to bear arms in defense of themselves • and the State shall not be questioned.” The statute made no exception where the weapon was carried in self-defense and self-defеnse was not a ground of defense in the case, yet the court held that the statute was unconstitutional, saying: “For, in principle, there is no difference between a' law prohibiting the wearing of concealed arms, and a law forbidding thе wearing of such as are exposed; and if the former be unconstitutional, the latter must be so likewise.”
That case has never been cited with approval, but has often been disapproved. We have noticed that Bishop on Stat: Crimes, sec. 793, note, cites as in harmony with the Bliss , case, Ely v.
On examination we find that Ely v. Thompson involved the validity of a statute which provided for the
Sеction 1, paragraph 7, of the present Kentucky Bill of Rights preserves to the people “the right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to рrevent persons from carrying concealed weapons.’'’ The statute of that state passed in 1854 against carrying concealed weapons made an exception where it was done in self-defense. That exception has been dropped from the present statute of that state. [See R. S. of Ky. 1909, secs. 3391 to 3396 inclusive.]
Hopkins v. Commonwealth,
“A statute so beneficent and so often and so easily evaded, should be vigilantly upheld, and stringently enforced by the judiciary for repressing a dishonorable and mischievous practice, which, licensed or unlicensed, leads, almost daily, to causeless homicides and disturbances, which wоuld otherwise never be perpetrated; and to that end, the accused should always be required to prove that he carried a concealed weapon only for the purpose of defending himself or family or prоperty against an impending attack, reasonably*212 apprehended, and which, if attempted, would justify the use of some such means of defense.”
State v. Reid,
“The question rеcurs, 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 hear arms in defense of himself and the State,’ has neither expressly nor by implication denied to the Legislature the right to enact laws in regard to the manner in which arms shall be borne. The right guaranteed to the citizen, is not to bear arms upon all occasiоns and in all places, hut merely ‘in defense of himself and the State.’ The terms in which this provision is phrased seems to us necessarily to leave with the Legislature the authority to adopt such regulations of police as may be dictated by the safety of the people and the advancement of public morals.”
This court in State v. Wilforth,
It was said in In re Brickey,
“A statute prohibiting the carrying of concealed deadly weapons would be a рroper exercise of the police power of the State. But the statute in question does not prohibit the carrying, of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in citiés, towns and villages. We are compelled to hold this statute void.”
And in State v. Buzzard,
“The act in question does not, in my judgment, detract anything from the power of the people to defend their free state and the established institutions of the country. It inhibits only the wearing of certain arms concealed. This is simply a regulation as to the manner of bearing such arms as are specified. The practice of so bearing them, the legislative department of the'governmеnt has determined to be wroiig, or at least inconsistent with sound policy.”
In Nunn v. State,
“We.are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defense, or of his constitutional right to keep and bear arms. But that so much of it as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void.”
Our constitutional provision on the subject originated in 1875. The words, “the рractice of wearing concealed weapons,” are, as we have seen, the language of the courts of our sister states; and there is no reason for thinking that those words are used in the Constitution in a sense other than the one given them in the reported cases.
We had no statute on the subject until the Act of March 26, 1874 (Laws 1874, p. 43).
In State v. Wilforth, supra, and in State v. Shelby,
Less than a century ago the arms of the рioneer were carried openly, his rifle on his shoulder, his hunting knife on his belt. Since then deadly weapons have been devised small enough to be carried effectively concealed in the ordinary pocket. The practiсe of carrying such weapons concealed is appreciated and indulged in mainly by the enemies of social order. Our State has been one of the slowest to act in meeting this comparatively new evil, but she has finally spoken in no uncertain language.
The judgment is affirmed.
The foregoing opinion of Roy, C., is adopted as tbe opinion of the court.