Strickland v. State

Atkinson, J.,

dissenting. The first question propounded by the Court of Appeals should be answered in the affirmative. The correctness of the answer depends upon a proper construction of the statute in question, and of the constitution of this State. In construing the constitution on the subject, its history is such as to make manifest the intention of the people in adopting it, and the intent, as thus shown, should be given effect. . Precedents of other States, consisting of rulings of courts, relative to constitutions, statutes, and questions which were not identical with those of our own, and which probably bad different histories, can have but little, if any; weight *13in showing the intention of the makers of our constitution and statutes. Eesort to the history of the early English' laws on the subject of the right to bear arms is not important, otherwise than as to be suggestive of reasons why it should have been expressly put in our fundamental law that the inherent right of the people to bear arms should never be infringed by the legislative power in the exercise of the right to enact laws.

Section 1 of the act, concerning the constitutionality of which the question is propounded, declares: “That from and after the passage' of this act it shall be unlawful for- any person to have or carry about his person, in any county in the State of Georgia, any pistol or revolver, without first taking out a license from the ordinary of the respective counties in which the party resides, before such person shall be at liberty to carry around with him on his pen-son, or to have in his manual possession outside of his own home or place of business; provided, that nothing in this act shall be construed to alter, affect, or amend any laws now in force in this State, relative to the carrying of concealed weapons on or about one’s person; and provided further, that this shall not apply to sheriffs, deputy sheriffs, marshals, or other arresting officers of this State or United States who are now allowed, by law,1 to carry revolvers; nor to any of the militia of said State while in service or upon duty; nor to any students of military colleges or schools when they are in the discharge of their duty at such colleges.” Section 2 declares: “That the ordinary of the respective counties of this State, in which the applicant resides, may grant such license, either in term time or during vacation, upon the application of party or person desiring to apply for such license; provided, applicant shall be at least eighteen years old or over, and shall give a bond payable to the Governor of the State in the sum of one hundred dollars, conditioned upon the proper and legitimate use of said weapon, with a surety approved by the ordinary of said county, and the ordinary granting the license shall keep a record of the name of the person taking out such license, the name of the maker of the firearm to be carried, and the caliber and number of the same.” Section 3 provides that “The person making such application, and to whom such license is granted, shall pay to the ordinary for granting said license the sum of fifty cents, which license shall cover a period of three years from date of granting same.” Section 4 makes the violation of the act punishable as for a misdemeanor.

*14Tlie majority refuse to “anticipate” that this act will be so construed as to render it unlawful for the owner of a pistol, who should accidentally drop it from his dwelling to the street, to afterwards pick it up and carry it into his house; or that if a pistol should be purchased, it would be unlawful for the dealer to deliver it or the purchaser to receive, it. When some such question arises, it can not be passed over lightly. An existing statute prohibits the carrying of a pistol concealed; and in a prosecution for the violation of this statute, it has been held that if a pistol be carried concealed but for a moment it is a violation of the law. Brinson v. State, 75 Ga. 882. But the provisions of the act above quoted extend further than to instances such as mentioned by the majority. Under them no person, male or female, under the age of 18 years, other than such as might come within certain classes specifically excepted, could lawfully carry around on his person, or have in his manual possession, any kind of pistol or revolver, for any purpose whatever, in any conceivable manner, elsewhere than in his own home or place of business. Nor could any person over the age of 18 years do so without first having obtained a license so to do from the ordinary of'the county, and having given bond and paid the prescribed fee. Relatively to a person under the age of 18 years, it matters not what the conditions or causes might be that would render it necessary for him or her, as the case might be, to go to or from his home or place of business, or what dangers might be encountered on the way, or how great the necessity for a pistol or revolver for the protection of self or property, he would violate the statute if on the way he carried in his hand, or otherwise about his person, a pistol or revolver. The same would apply to all persons over the age of 18 years, not falling within any of the excepted classes, unless they had complied with the prescribed conditions relative to obtaining a license, giving bond, and paying the fee. A non-resident, without a place of business, could not obtain a license. If there were a vacancy in the office of the ordinary, no person could obtain a license. However distasteful or inconvenient it might be to a law-abiding citizen to take out a license and be recorded as the carrier of a pistol, or, in case of remote distance from the ordinary, or inaccessibility to his office, however great the necessity of carrying a pistol or revolver for self-protection, before a license could be obtained, it would be a violation of this statute *15to carry any kind of pistol or revolver in any manner whatever, and punishable as for a misdemeanor.

Whatever else might be said of this statute, it ought not to be held that it does not infringe the right to carry a pistol or revolver. As the statute is to be construed as infringing the right to carry a pistol or revolver, it only remains to determine whether “pistols or revolvers,” as contemplated by this act, are to be classed as “arms,” within the meaning of the constitution of this State, which declares that “the right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne.” If they were so contemplated, then the act is obnoxious to this clause of the constitution. The act contemplates all pistols and revolvers, because it excepts none. If it had not contemplated specially pistols and revolvers, such as belong to the accoutrement of the militia, the militia would not have been included among the classes which were excepted from its operation. By such an exception, the act gave to the militia the right of carrying pistols and revolvers of the kind which it undertook to deny to other people. If it were a proper test and right to hold that the constitution, by the use of the word “arms,” contemplated only such as were borne by the militia, this act, according to the manifest purpose and intent of the legislature, would antagonize the constitution; but this dissent is not rested on that proposition. Before our constitution contained any declaration against the infringement upon the right of the people to bear arms, it was thought by this court that the second amendment to the constitution of the United States, which is set forth in the second question propounded by the Court of Appeals, prohibited legislation by State legislatures which infringed the right to bear arms, and that the constitution last mentioned, which did not refer to “pistols or revolvers,” otherwise than as might be comprehended by the word “arms,” contemplated pistols. That such was the understanding of this court at that time is shown by the decision rendered in the case of Nunn v. State, 1 Ga. 243, which has been referred to by the majority. Nunn had been convicted under the act of 1837, which made it a misdemeanor “for any merchant or vendor of wares or merchandise in this State, or any person or persons whatever, to sell, or to offer to sell, or to keep or to have about their persons, or elsewhere, any of the here*16inafter described weapons, to wit: Bowie or any other kinds of knives, manufactured and sold for the purpose of wearing or carrying the same as arms of offense or defense; pistols, dirks, sword-canes, spears, etc., shall also be contemplated in this act, save such pistols as are known and used as horseman’s pistols.” Cobb’s Dig. 848. This act was attacked as being unconstitutional, and it was so held by this court, and the judgment of the lower court refusing a new trial was reversed. The effect of the decision was to hold that a pistol was an “arm,” in the meaning of the constitution. The court, expressing the ppinion through Lumpkin, J., said: “We are of the opinion, then, that so far as the act qf 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; and that as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed.”

This decision was rendered in 1846, and was subsequently approved in the case of Stockdale v. State, 32 Ga. 225-227, which was decided at the January term, 1861. No constitutional question was raised in this latter case; but it is pertinent to the present discussion for the purpose of showing that this court construed the word “arms” to include “pistols.” In the opinion, Lyon, J., after quoting so much of the opinion as is quoted above from the case of Nunn v. State, supra, said: “That decision has been constantly adhered to from that time to the present, and must continue to stand as the law of this court on that subject.” It was further said: “To enforce the law, as the court construed it to the jury, would be to prohibit the bearing of those arms [pistols] altogether. . . What the legislature did intend was to compel persons who carried those weapons to so wear them about their persons that others, who might come in contact with them, might see that they were ‘armed.’ ” Subsequently, in 1874, the decision of this court, in the ease of Hill v. State, 53 Ga. 472, was rendered. Hill was indicted under a section of the code which prohibited the carrying *17of a pistol, etc., to any court of justice, etc. He was convicted, •and this court affirmed the judgment of the lower court in refusing to grant a new trial, holding, among other things, that the statute under which he was indicted was not obnoxious to the constitution of this State, which 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, but the General Assembly shall have the power to prescribe the manner in which arms may be borne.” MeCay, J., speaking for himself, was of the opinion that if the question were entirely a new one, he should not hesitate to hold that the language of the constitution of this State, as well as that of the United States, guarantees only “the right to keep and bear the 'arms’ necessary for a militiaman,” and did not include pistols; and after criticising the reasoning in the case of Nunn v. State, supra, he said further: “But, assuming that the guarantee of our State constitution was intended to include weapons of this character (which, considering that it- was made a part of the constitution after the decision of Nunn v. State, 1 Ga. 243, is not improbable), we are still of the opinion that the act” under which the indictment was found was not unconstitutional. The decision, however, was placed, not on a holding that pistols were not arms, as contemplated by the constitution, but upon a construction .of that provision of the constitution which authorizes the legislature to regulate the manner in which arms might be borne, holding, in effect, that the right to regulate the manner of carrying' arms authorized the legislation preventing them from being carried to courts of justice, etc.

The ruling so made was a concession that pistols were “arms,” within the meaning of the constitution, but only saved the statute by construing the power to regulate the manner of carrying such arms into authority to provide that arms should not be carried to courts of justice. There were no other decisions on this subject; but all of these, except the last, were rendered prior to the adoption of the constitution of 1861, which was the first time the makers of the constitution of this State saw fit to interpose. When they spoke, they made an affirmative declaration which recognized the existence of the right of the people to bear arms, and placed a limitation on the power of the legislature with respect thereto, and declared that the right should not be infringed. This was done *18after “arms” had been construed by this court, in Nunn v. State, supra, to include pistols, and after this interpretation had been followed by the decision in Stockdale v. State, supra, in 1861, at which time the construction was reaffirmed. Subsequently the question was dealt with in other constitutions, as follows: The constitution of'1865, art. 1, § 1-, par. 4 (Code 1868, § 4893), declared: “A well-regulated militia being necessary to the security óf a free State, the right of the people to keep and bear arms shall not be infringed.” The constitution of 1868, art. 1, § 1, par. 14 (Code of 1873, § 5006), declared: “A well-regulated militia being necessary to the security of a free people, the right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have the power to prescribe by law the manner in which arms may be borne.” There was no other' provision in the constitution on the subject until the adoption of the constitution of 1877, when the question was dealt with as set forth in the excerpt copied in the first question propounded bjr the Court of Appeals. Without going further, it is manifest that the framers of the constitution of 1877, by the use of the word “arms,” as in that instrument employed, intended to include pistols.' It would be strange to impute to them a different intention, when it is considered that the legislature had formerly so employed it, and the courts had so interpreted it from the time of the decision in Nunn v. State, 1 Ga. 243, up to the time of the decision in Stockdale v. State, 32 Ga. 225, in 1861, and still so recognized it in Hill v. State, 53 Ga. 472, in 1874, and especially when in the latter case the interpretation was specially mentioned and criticised by the judge rendering the opinion, before such interpretation was yielded to by the court. After such use and interpretation of the word, if it was intended by 'the constitution of 1877 to empower the legislature to deal with pistols on a different footing from other weapons of offense and defense, some change in expression on the subject would have been made.

But in looking to the real intent of the framers of the constitution, there is still more light on the subject, disclosed by Small’s Report of the Constitutional Convention of 1877. “One of the aids in constitutional construction is an examination of the proceedings of the constitutional convention.” Butts County v. Jackson Banking Co., 129 Ga. 801, 805 (60 S. E. 149, 151, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244). See, also, Wellborn v. Estes, 70 Ga. 390, *19401; Blocker v. Boswell, 109 Ga. 233 (34 S. E. 289); State v. Central R. Co., 109 Ga. 728 (35 S. E. 37, 48 L. R. A. 351); Epping v. Columbus, 117 Ga. 264 (4), 271 (43 S. E. 803); Park v. Candler, 114 Ga. 466 (40 S. E. 523). By reference to Small’s Eeport (page 56), it will be seen that section 19 of the bill of rights was: “A well-regulated militia being necessary for the security of a free people, the right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have the power to prescribe the manner in which arms may be borne.” When this section was under consideration, as appears on page 91, it was referred to as section 23, and a motion was made which in effect struck “A well-regulated militia being necessary for the security of a free people,” for the reason that such a declaration had already been made in the section of the bill of rights on militia. After that amendment was carried, Mr. Toombs moved “to strike ,out all after the word ‘infringed’ and strike out ‘but the General Assembly shall have the power to prescribe the manner in which arms may be borne,’ insisting that ‘the legislature has no power to prescribe how the people shall bear arms; that they shall not carry them in their boots, or anywhere else that they want to. I think the people have the right to keep and bear arms as they choose for their protection.’” On the other hand, Mr. Warren urged: “I hope the gentleman’s motion will not prevail. The experience of all of us is that the General Assembly should have the right to regulate the manner of keeping and bearing arms. There is nothing which provokes bloodshed so much as the indiscriminate bearing of concealed weapons.” The motion to amend was lost. Other amendments which were offered, but not adopted, were: (a) By inserting the word “place” after the word “manner,” so as to give the .legislature the power to prescribe where a man shall carry arms and where not; (b) “when off their freeholds or away from their homes.” Thus it appears from the debates that the members of the convention who framed the provision as it appears in the constitution of 1877 had in mind that “arms,” as referred to in the clause as adopted, contemplated, not merely such arms of warfare as might be used by the militia, but especially small weapons which might be concealed about the person, which was in keeping with the interpretation theretofore placed on the word by the court.

Eesort to the general law, relative to the police power of the *20State, in this discussion, does not aid those who take a contrary view from that above expressed. It is the constitution which we are construing, being itself the fundamental law; and it regulates and may limit the police power. By the provision of the constitution in question, it was intended to limit the police power, when it was declared that “the right of .the people to bear arms shall not be infringed.” This declaration was modified all that it was intended that it should be modified by the other express declaration, “the General Assembly shall have the power to prescribe the manner in which arms may be borne.” This was affirmative action upon the part of the people in adopting the constitution, and shows that the matter of restricting the legislature in the exercise of the police power of the State, relative to the right of the people to bear arms, received special consideration, and that there was no intent to further qualify the broad declaration which favored the right to bear arms. I't was intended to guarantee to the people the right to bear arms, so that the legislature could do no more than to regulate the manner in which they should be borne. This guaranty was to all the “people,” and was never intended to be restricted merely to those of the militia, or those intending to become such.

The majority answer the second question propounded by the Court of Appeals in the negative, on account of the reasoning-placed in their discussion relative to the first question. I do not concur in the reasons which they urge; but, in view of the ruling in Hill v. State, 53 Ga. 472, U. S. v. Cruikshanb, 92 U. S. 542 (23 L. ed. 588), Presser v. Illinois, 116 U. S. 252 (6 Sup. Ct. 580, 29 L. ed. 615), Spies v. Illinois, 123 U. S. 131 (8 Sup. Ct. 22, 31 L. ed. 80), Fife v. State, 31 Ark. 455 (25 Am. Rep. 556), and Eilenbecker v. Plymouth County, 134 U. S. 31 (10 Sup. Ct. 424, 33 L. ed. 801), I concede that the second amendment to the constitution of the United States relates only to limitations upon the power of Congress, and has no reference to State legislation, and accordingly concur in the judgment that the question should be answered in the negative.