Masters v. State

PHILLIPS, Chief Justice.

William Andrew Masters, II, appeals the trial court’s judgment, based upon his plea of no contest,1 which convicted him of “un*945lawfully carrying a weapon”2 and ordered him to pay a fine of one dollar.

On the early afternoon of August 6,1981, appellant was stopped at a busy intersection in north Austin, Texas, by patrol officers of the Austin Police Department. The officers stated that they stopped appellant because he was carrying two “swordlike” weapons in his belt. Upon closer examination and questioning of appellant, the officers discovered that the weapons were “sais” — weapons used in the practice of Korean martial arts. When asked why he was carrying the weapons, appellant vaguely responded that he “might need them,” that the police “ought to understand,” and that “he wanted to be prepared.”

Appellant contends that he is constitutionally entitled to carry these weapons, and further argues that any law which would prohibit his keeping and bearing arms is in violation of the express terms of the United States Constitution, and the Texas Constitution. We disagree.

I.

The Second Amendment to the United States Constitution states:

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.

In United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875), the United States Supreme Court stated that the Second Amendment granted the individual no right to keep and bear arms, but instead limited the power of the national government over the States and their residents. The Supreme Court further stated that the right to bear arms was contingent upon their being borne by the people for lawful purposes in lawful ways, and that the States, through the exercise of their “police powers,” were obligated to protect all the people’s various rights through reasonable regulation.

In Robertson v. Baldwin, 165 U.S. 275, 281-82, 17 S.Ct. 326, 329, 41 L.Ed. 715 (1896), the United States Supreme Court expanded the rationale expressed in Cruikshank and expressly stated, in passing on another issue of Constitutional interpretation, that, “The right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons.”

In United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1938), the United States Supreme Court again reiterated that the Second Amendment grants no right to the individual to keep and bear arms, but that it instead denies the national government the power to disarm the State militias. In Miller, the Supreme Court acknowledged the States’ implicit authority to control by reasonable regulation its residents’ keeping and bearing of arms.

Accordingly, after reviewing the above mentioned primal authority and the cited cases’ progency,3 we hold that the Second Amendment to the United States Constitution does not contemplate — within its express limitation on the powers of the national government — granting appellant the right to carry “swords” upon his person in public in the manner and for the purpose *946stated. Therefore, we hold that appellant has not been denied any right guaranteed him by the United States Constitution by his conviction for violating Tex.Pen.Code Ann. § 46.02 (1974).

IL

Having found that the United States Constitution’s Second Amendment does not grant the individual the right to keep and bear arms, but instead serves as an express limit on the power of the national government over the States, we turn to our own State Constitution to determine if appellant has been wrongly convicted. In so doing, we find that Art. I, § 23 states:

Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have the power, by law, to regulate the wearing of arms, with a view to prevent crime.

As is easily seen, the Texas Constitution gives the right to keep and bear arms directly to the individual, unlike the United States Constitution which merely implicitly protects the right of the States to maintain armed militias under State control. But, as our State Constitution grants and guarantees a direct right to the individual, our State Constitution limits that right by implicitly mandating the Legislature to enact reasonable regulations concerning the keeping and bearing of such arms in order that the Legislature prevent disorder in our society.

In English v. State, 35 Tex. 473, 477-79 (1871),4 our State’s Supreme Court, sitting in criminal appellate review of a like attack on a statute quite similar to § 46.02, stated:

It will doubtless work a great improvement in the moral and social condition of men, when every man shall come fully to understand that, in the great social compact under and by which States and communities are bound and held together, each individual has compromised the right to avenge his own wrongs and must look to the State for redress. We must not go back to that state of barbarism in which each claims the right to administer the law in his own case; and that law being simply the domination of the strong and the violent over the weak and the submissive.
It is useless to talk about personal liberty being infringed by laws such as that under consideration. The world has seen too much licentiousness cloaked under the name of natural and personal liberty; natural and personal liberty are exchanged, under the social compact of States for civil liberty .... It is not our purpose to make an argument in justification of the law. The history of our whole country but too well justifies the enactment of such laws.

These words written more than a century ago ring with a clarity which is unquestionably applicable and controlling today. The need for reasonable regulation of the wearing of arms by the Legislature is no less needed in today’s modern world as in the development of our State’s frontier generations ago. As long as that need exists, the Legislature will be normally charged with its Constitutional duty to regulate the carrying of weapon, a duty we cannot and will not deny it.

In reviewing this State’s jurisprudence, we find that this penal statute and its predecessors have been universally held constitutional by the Courts of this State under the enumerated power delegated by the people to the Legislature to enact laws regarding the bearing of arms in Art. I, § 23 of our State’s Constitution.5 Accord*947ingly, we hold that appellant has suffered no deprivation of any right guaranteed him by the Texas Constitution in his conviction for violating Tex.Pen.Code Ann. § 46.02 (1974).

Having found no denial of appellant’s rights guaranteed him by either the United States Constitution or the Texas Constitution, in regard to his claimed right to keep and bear arms, we affirm the trial court’s judgment.

. Pursuant to Tex.Code Cr.P.Ann. art. 44.02 (Supp.1974), appellant may only appeal, without the trial court’s permission, those matters raised by a written motion filed prior to trial. *945Accordingly, this appeal is limited in those matters filed in appellant’s pro se pretrial motion to quash the indictment overruled by the trial court.

. Texas Pen.Code Ann. § 46.02 (1974) states, in relevant part:

(a) A person commits an offense if he intentionally and knowingly, or recklessly carries on or about his person a handgun, illegal knife, or club.

. United States v. Oakes, 564 F.2d 384 (10th Cir.1977), cert, denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978); United States v. Warm, 530 F.2d 103 (6th Cir.1976), cert, denied, 426 U.S. 948, 96 S.Ct. 3168, 49 L.Ed.2d 1185 (1976); Eckert v. City of Philadelphia, Pa., 477 F.2d 610 (3rd Cir.1973), cert, denied, 414 U.S. 839, 94 S.Ct. 89, 38 L.Ed.2d 74 (1973); Cody v. United States, 460 F.2d 34 (8th Cir.1972), cert, denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972); Application of Atkinson, 291 N.W.2d 396 (Minn.1980); State v. Rupp, 282 N.W.2d 125 (Iowa 1979); State v. Sanders, 357 So.2d 492 (La.1978); Com. v. Davis, 369 Mass. 886, 343 N.E.2d 847 (1976); State v. Skinner, 189 Neb. 457, 203 N.W.2d 161 (1973).

. Although we are well aware of the historical setting in which English v. State, supra, was decided, we are ever mindful that this Court was the Supreme Court of Record in this State; that the Court’s judges swore an oath to uphold the United States Constitution; and that we are not the first court to employ this decision is precedent. See Koy v. Schneider, 110 Tex. 369, 221 S.W. 880, 891 (1920); Collins v. State, 501 S.W.2d 876, 877 (Tex.Cr.App.1973); Curson v. State, 166 Tex.Cr.R. 272, 313 S.W.2d 538, 539 (1958).

. Roy v. State, 552 S.W.2d 827 (Tex.Cr.App.1977); Collins v. State, 501 S.W.2d 876 (Tex. Cr.App.1973); Webb v. State, 439 S.W.2d 342 *947(Tex.Cr.App.1969); cert, denied, 396 U.S. 968, 90 S.Ct. 450, 24 L.Ed.2d 434 (1969); State v. Duke, 42 Tex. 455 (1875).