(concurring). As set forth in the opinion of the Court, the statute as enacted provided sufficiently clear notice that gas-ejecting weapons such as Lynch attempted to carry are prohibited. A separate question would be presented, however, if circumstances occurring since the statute’s en*358actment have added a gloss to the literal meaning of the statute’s terms so that a reasonable citizen might doubt that gas-ejecting weapons of the kind Lynch attempted to carry were in fact within the compass of the statute’s prohibition.
I write separately to suggest that had the record been developed with evidence establishing such circumstances, which appear to be present in this case, there would be a substantial question whether Lynch had fair notice of the statute’s prohibition.
The statute focuses on weapons in the arsenal of the professional criminal, weapons used primarily to commit crimes. While gas-ejecting weapons may have been of this character in 1929 when the pertinent provision was enacted, it is not at all clear that they are of this character today. It may be that they are currently as likely to be found in a woman’s purse or a mailman’s pouch as in the hands of a criminal bent on mayhem.
This change in the character of a device cannot, of course, create an exception to a valid statute. Where, however, the device takes on a character unlike that of the devices prohibited so that a citizen might doubt that his device is of the kind the statute intended to prohibit, and where that doubt is reinforced, or indeed caused, by lack of prosecution in the face of the open and common sale and possession of the device, the doubt a reasonable citizen might feel as to whether his device is actually one which the statute prohibits may be such that the citizen is deprived of the clear warning that due process requires. A criminal statute must give fair notice to an ordinary citizen that his contemplated conduct is forbidden,1 *359for "[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes”.2
"A penal enactment which is linguistically clear, but has been notoriously ignored by both its administrators and the community for an unduly extended period, imparts no more fair notice of its proscriptions than a statute which is phrased in vague terms. Though the language of a desuetudenal act may be clear, 'the hardened gloss life has written upon it’ will seem to the individual a 'tougher and truer law than the dead words of the written text.’ In this situation, a rational choice between statute and the 'living law’ of both community and state becomes insuperably difficult and dangerous for the spectator.”3
I have not been able to discover any record of a prosecution, before Lynch, for the sale or possession of a gas-ejecting device since the provision was enacted over 50 years ago.4
1 do not suggest that prosecutorial non-use, changed circumstances or pervasive public disobedience may operate to repeal or modify a valid enactment. Repeal or modification is the province of the Legislature. If circumstances and public opinion have changed so as to make it now appropriate that citizens be allowed to carry gas-ejecting weapons for self-defense, it is for the Legislature to so declare, as it recently has in limited fashion.5 The question suggested here is not whether nonenforcement can cause a statute to lapse into desue*360tude and thereby become constitutionally unenforceable, but rather whether a combination of the circumstances described can operate to deprive a person of the requisite clarity of notice that his conduct is forbidden.
The statute appears to be drawn to reach a narrow class of particularly dangerous and crime-oriented weapons. The device Lynch carried might not appear, in the minds of today’s populace, to be part of that narrow class. The common public sale of these devices without response from law enforcement officials would naturally add to the doubt that these devices are such as the statute prohibits.
This situation is similar to that presented to the United States Supreme Court in Poe v Ullman.6 In that case, the plaintiffs sought a declaratory judgment of the unconstitutionality of two Connecticut statutes which made it illegal to use contraceptives or to be an accessory to such use. A majority of the Court concluded that the question was not ripe for decision, with three Justices joining an opinion by Justice Frankfurter basing that conclusion on the almost complete lack of prosecutions during the statutes’ 75-year existence despite the open sale of contraceptives throughout the state. Justice Frankfurter stated:
"We were advised by counsel for appellants that contraceptives are commonly and notoriously sold in Connecticut drug stores. Yet no prosecutions are recorded; and certainly such ubiquitous, open, public sales would more quickly invite the attention of enforcement officials than the conduct in which the present appellants wish to engage — the giving of private medical advice by a doctor to his individual patients, and their private use of the devices prescribed. The undeviating policy of nullification by Connecticut of its anti-contra*361ceptive laws throughout all the long years that they have been on the statute books bespeaks more than prosecutorial paralysis. What was said in another context is relevant here. 'Deeply embedded traditional ways of carrying out state policy * * *’ — or not carrying it out — 'are often tougher and truer law than the dead words of the written text.’ ”7
As the circumstances in Poe went beyond mere prosecutorial paralysis to suggest a truer law than the dead letter of the statute, so the circumstances which appear to be present here might have added a gloss to the words of the statute, giving them a truer meaning than literalism would convey, and creating doubt in the minds of ordinary persons sufficient to obfuscate an otherwise fair warning.
Moreover, the apparent increased acceptance and use of gas-ejecting devices by law-abiding citizens precludes reliance upon the nature of the offense itself to provide notice of the probable illegality of the conduct. This would distinguish United States v Elliott,8 where the court found that the 50-year non-use of a statute was not a defense to prosecution under the statute for conspiring to destroy a bridge in Zambia:
"However, [the] statute does not penalize conduct which, through a long period of non-enforcement, has acquired the status of customary usage, nor has opprobrium for the act been suddenly revived. Conspiring to destroy a bridge is not, and never has been, permitted by community mores.”9
Here, there appears to have been a shift in "community mores”: the tool of the "gangster” may well have become a weapon "usually relied *362upon by good citizens for defense”.10 The shift has apparently been encouraged or at least reinforced by a uniform lack of prosecution in the face of open and widespread availability. A combination of these factors, if proven, could have deprived Lynch of the requisite clarity of notice that his conduct was prohibited. The failure to develop the record with such evidence, however, precludes us from granting relief on this basis.
United States v Harriss, 347 US 612, 617; 74 S Ct 808; 98 L Ed 989 (1954).
Lanzetta v New Jersey, 306 US 451, 453; 59 S Ct 618; 83 L Ed 888 (1939).
Bonfield, The Abrogation of Penal Statutes by Nonenforcement, 49 Iowa L Rev 389, 416 (1964).
At least two prosecutions have been brought since Lynch was charged. People v Guy, 84 Mich App 610; 270 NW2d 662 (1978); People v Stinson, 88 Mich App 672; 278 NW2d 715 (1979).
See footnote 8 of the opinion of the Court.
Poe v Ullman, 367 US 497; 81 S Ct 1752; 6 L Ed 2d 989 (1961).
Id., p 502, quoting Nashville C & SL R Co v Browning, 310 US 362, 369; 60 S Ct 968; 84 L Ed 1254 (1940).
United States v Elliott, 266 F Supp 318 (SD NY, 1967).
Id., p 326.
People v Brown, 253 Mich 537, 542; 235 NW 245 (1931).