concurring.
I disagree with various parts of the majority opinion but concur in the result reached by them.
I disagree with the majority’s assertion that the Legislature is, by Tex. Const.Ann. art. I, § 23 (1955), “charged with the ... duty to regulate the carrying of weapons,” or as stated elsewhere in the opinion, that art. I, § 23 has the effect of “mandating the Legislature to enact reasonable regulations concerning the keeping and bearing” of arms in order to prevent disorder in society. I do not know how the majority reaches such conclusions, for art. I, § 23 merely states that “the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.” (emphasis added) The Legislature is free to regulate the wearing of arms, or not, as it sees fit.
I disagree with what appears to be the majority’s invocation and use of English v. State, 35 Tex. 473 (1871) for the purpose of stare decisis. That decision was made by the semicolon court, a court established by a State constitution (that of 1869) which was the product of military occupation and the disfranchisement of most of the State’s inhabitants, circumstances which deprive that court’s decisions of stare decisis effect. See Norvell, Oran M. Roberts and the Semicolon Court, 37 Texas L. Rev. 279, 288 (1959); Ramsdell, Reconstruction in Texas 200-68 (1910).
I disagree with the numerous statements in the majority opinion to the effect that a given constitutional provision “gives” or “grants” to individuals a “right,” or that a specific “right” could have been “given” or “granted” by the constitution but was not. Such language suggests that without constitutional authorization, the right would not exist in an individual person. In other words, if the Second Amendment does not “give” or “grant” the right to keep and bear arms, individuals would not possess that right. The theory of the majority contravenes the basic constitutional principles that individuals possess immunities and prerogatives by the very fact that they are human beings, and they retain these rights save to the extent they have voluntarily ceded them to a sovereign power, as in the Federal and State constitutions, where they expressly reserved all rights not granted expressly or by implication, including those immunities and prerogatives listed in the Bill of Rights, upon which the government of the sovereign is forbidden to infringe. U.S. Const, amend. IX; Tex. Const.Ann. art. 1, § 29 (1955).
Concerning the merits of the appeal, I suggest that the constitutional issues are a good deal more complicated and unsettled than the majority opinion implies. See, e.g., Cooley, Principles of Constitutional Law 270 (“It [the Second Amendment to the Constitution of the United States] was adopted, with some modification and enlargement, from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the late dynasty in disarming the people, and as a pledge of the new rulers, that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation of arbitrary power by rulers, and as a necessary and efficient means of regaining rights temporarily overturned by usurpation.”); Stevens, Sources of the Constitution of the United States 222-23 (1894) (“The second amendment deals with -the question of a trained militia, and the right *948of the people to bear arms, — a right involving the latent power of resistance to tyrannical government.”).
Even the collective theory of the Second Amendment, to the effect that the right recognized therein is that of the State to maintain an armed militia, is questioned for the difficult internal inconsistencies which that theory produces within the Constitution itself. See Levin and Saxe, The Second Amendment: The Right to Bear Arms, 7 Hous.L.Rev. 1, 15-19 (1969).
Whatever may be the effect and meaning of the Second Amendment at various points in our constitutional history, we are presented in the present case with a ground of error wherein appellant claims only that his right to carry the weapon in question was absolute under that Amendment. I disagree.
Even if individuals do possess under the Second Amendment a fundamental right to keep and bear weapons, which the Constitution guarantees against State as well as federal infringement, it plainly is not an absolute right in the sense that it must prevail in all imaginable circumstances and in the sense that the scope of the protection given the right, by the Second Amendment, must be determined solely from a literal reading of the phrase “the right of the people to keep and bear arms, shall not be infringed.” For example, I should not think that an individual under the Second Amendment is guaranteed the right to keep and use, free from any statutory restraint whatever, a supply of biological warfare cannisters, a stock of surface-to-air missiles, grenades, flamethrowers, or howitzers and the ammunition for them. Rather, the right I have assumed to be protected by the Second Amendment from governmental infringement would plainly allow some scope for an exercise of the State’s police power to preserve public safety and health, commensurate with whatever legitimate State interest may be at stake in the circumstances. But such matters are not before us, for appellant does not attack the reasonableness of Tex.Pen.Code Ann. § 46.02 (1974), as applied to the weapon in question. He prefers instead to make his complaint upon the sole ground that the statute is unconstitutional because under the Second Amendment his right to carry the weapon in question was and is absolute. It is not. We need say no more than that and upon that basis, I concur in the result reached by the majority.