*1 THE IN SUPREME COURT. State v. Keener. States Supreme Tbe United Court has held tbat tbe Eifteentb Amend self-executing, ment was and struck out, ex or propio vigore, statute any S., provision constitutional conflict tberewitb. Guinn v. U. Anderson, ib., S., 347; ib., U. v. Myers 369; U. 383; and it Mosley, bas beld tbe same as to tbe Eighteenth Amendment, Rhode Island v. Palmer, 253 U. of which (both amendments were ratified by recognized and we have tbe State), same effect as to tbe Ninteentb Amendment, which this State did not ratify, by tbe admission of women to suffrage. supreme "Whentbe bas it is power spoken necessary wait for state to any statutes to conform. modify conflicting Tbe State any statute, Federal, automatically stricken out. Under statute, the State amended tbe Federal statute, striking n out'the modifying clause of 15 tbe defendant days given in which to receive a tbe defendant was quart, clearly guilty, and there was no error in tbe charge which be bad tbe to complain.
STATE O. W. KERNER. v. (Filed May, 1921.) Statutes—Weapons—Arms—Un- Law —Criminal 1. Constitutional Law — Weapons. concealed making carrying among weapon, specifying pistols, A of a statute things, unconcealed, punish- other able the same as from the a misdemeanor and concealed, carried unless a be first obtained carried, pay- statement of for which it was to be giving bond, legisla- fee ment of license and the of a exceeds the power police regulation and tive violation of the declaration of rights Constitution, in our State that “The infringed,” proviso “nothing arms shall not herein con- justify carrying tained shall concealed Legislature enacting practice.” Const., the Art. statutes said pistoi I, Semble, 24. sec. is included in the word “arms” ex vi termini. Agreed. Questions 2. Law —Trials—Case Same — appears Where it from a verdict that the defendant was tried carrying weapon, public- an for local who desired to unconcealed amade misdemeanor under a statute; that he had been accosted street of town bring fight, put about and that the defendant then down packages carrying ’some and went to his store and returned with a carrying openly: pistol, Held,, the offense created statute unconstitutional, sustained, and a conviction could thereunder not be a matter of law. J., concurring result; Allen, J., concurring; Stacy, Walker, con- curring opinion Allen, J. Webb, J., Appeal State from January Term, Eoksyth. Tbe was indicted on a defendant first count a concealed N. 0.] Kerner! *2 bis off carrying count for second on the
weapon, found the defendant verdict, a special There was unconcealed. Kernersville in Forsyth the town of streets of along walking he was for the accosted, some packages, County carrying Matthews; that in the course of this in one fight, by him a engaging his went to his of business place set down packages altercation he back him brought which he unconcealed there procured pistol, 317, 1919, Sec. Public-Local Laws 3, of the altercation. to the scene his own weapons premises by any of such carrying prohibits The it was not concealed. though permit, in without Forsyth in that this statute was conflict with the of the court, being opinion arms shall that “the to bear not be in- provision constitutional of not and the State guilty, appealed. a verdict fringed,” directed and Assistant Nash Manning Attorney-General Attorney-General for the State. n Jones & Clement for defendant. amendment to the C. J. The second United States Constitu OiARK, that “the of the and bear arms provides keep tion, it has not be does not for been infringed,” apply, repeatedly’held shall States Court and this Supreme Court, and, the United indeed, that the first ten amendments to the United States' Constitu all courts, the Federal and not upon authority upon tion are restrictions states. Patterson, 134 120; 135 S. v. N. C., C., 617; In re N. S. v. Briggs, Newsom, Cruikshank, S. v. 92 U. 250; 542; 27 N. U. 9 Rose’s C., Ed.), Notes (Rev. sec. Art. 24, I, entitled, which is
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576 IN Keener. also Tbis of the Constitution has cited in discussed Reams, Boone, 556; in 132 N. S. v. N. C., C., 1108. Public-Local Laws Chapter applicable only to Forsyth provides: prohibits Section County, carrying of concealed weap- ;ons section requires and section “If provides: any person, own except when shall premises, carry any weapon (named 1) section without a permit (as provided section he is 2) guilty misdemeanor and punished provided section con- weapon.” cealed weapons named section 1 include pistols, and the question presented whether this conflicts with the constitutional above provisions cited.
The other recited section 1 of this besides act, are, “pistol,” *3 knife, “bowie loaded dirk, dagger, slung-shot, iron cane, or metallic brass, or razor, or other knucks, deadly like these, kind.” None of can be as except “pistol,” coming construed within the meaning of the word “arms” guarantee used the constitutional of the right to bear arms. areWe of the opinion, however, ex is “pistol” vi termini properly included within the “arms,” word and that the right to bear such arms unconcealed cannot be infringed. The historical use of pistols as “arms” offense defense is beyond controversy. that the invention of with a guns true carrying range of probably and of miles, deadly gasses, submarines, aeroplanes bombs have importance modern devices much reduced the
and other range. at close But the in warfare except ordinary private citizen, pistol arms cannot be infringed right upon, whose likely to and most modern devices just these expensive named. To him purchase and -the shotgun, are about musket, rifle, only arms and his be “bear,” he could to do this expected is that the Constitution. To him guaranteed by deprive of bearing infringe arms is to guaranteed these him any the Constitution. say that the Constitution intended mockery
It would dropping bombs from a practice flying him the machine, to throwing missiles for a perhaps hundred a cannon miles or more, operate In gasses. in the deadly Cooley use Const. Lim., or to of this the intention thus set forth: “Among history liberty should mentioned the safeguards right of the the other A standing arms. army keep-and peculiarly obnoxious and the such an jealousy army has at government, free times in any to lead England manifested to the belief strongly been so themselves, was among from more recruited dreaded though than oppression tyrannical an instrument monarch or any English did the So become of impatient foreign very power. N. O.]
State v. Kerner. tyranny them from the of James II that de- they that liberated army even before liberation became complete; manded reduction to this the British Parliament render a day standing practically. army passing act session to session. impossible mutiny alternative standing “a army well-regulated militia”; but this cannot exist unless the people are trained to arms. bearing The Federal and State constitutions, therefore, provide “that the to bear arms shall not be infringed.”
knowWe that in the past privilege guaranteed for the sacred enabling the people protect themselves against invasions of their liberties. Had not the people of the Colonies been accustomed to bear arms, and effective skill in acquire use, scene at Lexington in 1775 would have had a different result, and when “the embattled farmers fired the shot that was heard around the world” it would have fired vain. Had not the common the rank and those file, who “bore the burden the battle” during great our Revolution, been accustomed to the use of arms the victories for liberty would not have been won and American Independence would have been an impossibility.-
If our pioneers had not been accustomed use of arms the Indians could not have been driven and the back, French, British, later the would have obtained possession valley of the Ohio and the Missis- If sippi. the frontiersmen had not been good riflemen, particularly the riflemen from Tennessee and Kentucky, battle of New Orleans would have been lost and the frontiers of this country would still have stood at the Mississippi.
In our own State, 1870, when Kirk’s militia was turned loose and the writ of corpus habeas suspended, would have been fatal if our had been to people deprived right bear arms, and had been unable an to effective front to oppose usurpation.
The maintenance of the to bear arms is right a most essential one to free and should not be every whittled down technical con- It structions. should be all construed to include such “arms” as were in common use, borne people It does not on the
adopted. one hand that the people have to use submarines and cannon futile of 100 miles range, nor dropping deadly bombs, nor the use of aeroplanes poisonous gasses, nor does it the other hand embrace dirks, daggers, and brass slung-shots, which may be but are knuckles, weapons, not, strictly “arms” speaking, borne at and which are large, generally carried concealed. and safe construction is which practical that must have been in the of those organic minds who framed our law. The intention was to “arms,” embrace the an with acquaintance whose use was necessary for their protection usurpation illegal power rifles, as —such 37—181 IN THE SUPREME COURT.
578 v. Kerner. little used These are but swords, pistols. now muskets, shotguns, still or their like can be weapons they still are such they in war, “bear.” which to “arms,” they considered have minimize these based the wisdom dangerous guarantees, upon law. It has which have been imbedded our been ages, organic fire statute it well said that when the word used denotes slung- knuckles, does not brass arms, pistols, which includes but embrace there of like 40 and cases shots, description. Cyc., or Buzzard, State, This Ark., 18; 35 473. Tex., cited: State v. v. English State, 155; v. (2 Humphreys), distinction is Tenn. upheld Aymette State, Wilburn, (7 v. 3 Heis State v. 66 Tenn. (Tenn.), 165; Andrews Kelly 557; v. 57; Ark., Georgia, Wilson Nunn Baxter), 225. Stockdale v. 243; Georgia, Ga., (Geo.), It a reasonable and not an regulation, infringement would also be arms, deadly weapons prohibit to a intoxicating drink, church, polling place, or under the.influence in a manner calculated which inspire terror, or public assembly, are law. These practical standpoint was forbidden common from infringe and would not of the consti object mere regulations, acquire which guarantee, preserve tutional of fire-arms. knowledge Shelby, the use and retain practical 90 Mo., has adopted a reasonable which regulation,
It also but that a shall not a certain require be under states, in some size, will the use of of small reasonable, pistols which, length, carried easily ordinarily but which áre arms, not borne are but however, regulation, all not pistols, To exclude concealed. “arms” designation which come under the arms, prohibition, an or an guar- bear. This not idle obsolete are entitled to where necessary mention, great still not localities, for there are antee, agents guise private police, detective under corporations, armed force. If the are forbidden their employees terrorize means, among arms within their them will pistols, they great plutocratic organizations. at the of these mercy completely law-abiding is if citizens could mob, possible Should there protect carried their openly persons pistols assemble without an official going unlawful violence before their property ? license and bond giving obtaining *5 is force is to “disarm” country overborne by The usual method arbitrary similar exercises the above and of to people. this Government “of the creating people, by that the power to themselves the “bear and for the reserved people,” illegal their use meet they might ready arms” accustomed N. 0.] v. Keener.
State defense tbeir legal by adequate just force persons, force slow, and their whenever We should be property, liberties, necessary. to construe such into a mere indeed, academic -expression has obsolete. become can have
We no knowledge future except by past, “The Henry light Patrick feet said, by which our are guided lamp The constitutional experience.’.’ provision which forbids any upon the bear arms prohibition people to and use them effectively being accustomed to their use maintained, should be strictly and stoutly for we again know occasion may the assertion require that doctrine one familiar this throughout that, country “Resistance tyranny obedience to or the God,” defense of person mobs and violence. property The in this case, statute Public-Local Laws especially objectionable that it that in requires (sec. order 2) his own premises, and for openly, lawful the citizen purpose, must make application municipal court, resident of town; if not Superior residing Court in town, “describing giving the time and for which it may be carried off his premises, and must to the clerk of court pay the sum of for each must file a bond that he will not penalty carry the weapon except so In the ease of a riot or mob authorized.” violence, or other emergency the defense of requiring public order, place would law- abiding citizens at the entirely mercy lawless element. As a even, this void because an regulation, and, unreasonable regulation, besides, would be void because all practical purposes it is a prohibi- bear tion the constitutional arms. There would be no time or to get such and to such bonds on opportunity give an emergency. defendant, On this threatened with occasion, violence, was forced his He went to his property. place to abandon he where business, his own pistol, “being had the premises,” He acting it unconcealed. returned with self-defense of his of his The and in defense court below property. most person properly verdict, was not guilty. adjudged, upon No error. in result. J., concurring
Walkee, concurring: arms, which is protected Allen, Federal and safeguarded constitutions, subject to the Assembly, the General the exercise authority police power, but must reasonable and not regulate, regulation prohibitive, fair relation to the preservation must bear a the public peace and safety. *6 IN THE SUPREME COURT. Gettys. «. I it think,
This the correct me is, principle, the con- appears stitutional privilege infringed by under which the defendant is act, as makes indicted, guilty of violation who carries a law, pistol premises off his own and for lawful without a openly required give and to a bond in the sum pay before can issue. No for an emergency, exception made and no favor one who carries a in the openly, necessary defense of his when he has had no person property, opportunity secure permit. in this J., opinion. concurs
Stacy, GETTYS
STATE JIM et al. (Filed 1921.) May, Special Repeal—Drainage Districts. Statutes —General Laws — Acts — operation special for the formation Where a local statute' drainage expressing complete details, general all in itself in law district is drainage applicable in commissioners to itself to all such districts making adding the failure of the file further duties and offense, 5374,5375, reports S., an indictable O. will not be construed certain special special apply act. unless reference is made local Statutes. 2. Same —Consolidated 252, compiled authority of were under Statutes The Consolidated public State,” “collecting revising 1917, statutes of for Laws to, private complete, statute, specifically referred local and unless specifically itself, mentioned therein. affected unless is not Same. S. establishing complete in all of its public-local law details aWhere requires drainage district, maintaining the commis- and sioners record 5374-5, ,all dealings transactions,” perfect “a record S., district; inspection subject all interested and C. which, among things, enacted, subsequently other it an makes commissioners make failure of the certain offense indictable them, application, especially publish has no as G. reports Drainage subchapter repeal or Districts “shall not provides already drainage enacted.” change laws local concurring opinion. J., dissenting dissenting; Stacy, in the J.,G.
Clark, Lane, Appeal Term, February Special by plaintiff Bukke.