Baird v. Commonwealth

COMBS, Judge,

concurring in result.

I concur in the result reached by the majority, but feel it my sworn duty to comment on the statute under which the appellant was indicted, tried and convicted.

KRS 525.040 is clearly and unequivocally violative of § 1(7) of the Bill of Rights to our Constitution and the decision of the Supreme Court in the case of Eary v. Commonwealth, Ky., 659 S.W.2d 198 (1983), is clearly violative of § 26 of our Constitution and therefore void.

§ 1 of our Bill of Rights commenced with the following:

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:
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(7) 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 prevent persons from carrying concealed weapons. [Emphasis added.]

The Legislature by enacting KRS 527.-020 has performed the only thing they were at liberty to perform by virtue of this provision by making it a Class A misdemeanor or Class D felony to carry a concealed weapon. The court in Eary held the statute to be constitutional as a valid exercise of the police power of the Commonwealth of Kentucky. No person or any group of persons have any power in this Commonwealth that is not expressly delegated to them. It is obvious to this writer that the court in writing the opinion in Eary were not mindful of § 26 which provides:

To guard against transgression of the high powers which we have delegated, we declare that everything in this Bill of Rights is excepted out of the general powers of government, and shall forever remain inviolate; and all laws contrary thereto or contrary to this Constitution, shall be void. [Emphasis added.]

Counsel for appellant obviously assuming that the Court’s ruling in Eary superseded and nullified our Bill of Rights did not raise the constitutional question. I would remind counsel and all attorneys that we, by virtue of § 228 of our Constitution, are required to support the Constitution, and we must be ever vigilant to protect the rights contained in that hallowed document. It may be that such a law as was contemplated in KRS 527.040 would be a desirable law, but that is for the people of the Commonwealth to decide by constitutional amendment and not the judiciary.

We are a court of justice. To permit a citizen to be deprived of his liberty under a statute that so conflicts with the funda*461mental principles of this Commonwealth would be to work an injustice of the first magnitude. To permit this conviction to stand under the circumstances would constitute a manifest injustice within the meaning of RCr 10.26.

I would reverse this conviction with directions to remand to the circuit court to dismiss the indictment.