THE RIGHT TO
KEEP AND BEAR ARMS
by John Santee
Reprinted by
permission of: Drake Law Review, Volume 26, 1976-1977
I. Introduction
In recent years, there has appeared mounting sentiment for governmental
regulation of the purchase, sale, possession, ownership and use of firearms. This
rising clamor has been precipitated and fueled again and again by
assassinations and attempted assassinations of national and local leaders, by seemingly
uncontrollable increases in the rate of crime, particularly crime of violence,
and by attacks by terrorists and other extremist groups. A frequent comment
made in the national debate by opponents of gun control legislation is that governmental
regulation of the types envisioned would infringe upon the individual's
"right to keep and bear arms," which is said to be protected by the
second amendment to the Federal Constitution. The second amendment provides,
"A well-regulated militia, being necessary to the security of a
The number of judicial decisions interpreting the right to bear arms has
been relatively small. However, those few decisions which have been rendered,
as well as the interpretations suggested by the commentators, have unanimously
stressed the importance of the historical development of the second amendment
and the purposes behind its enactment as keys to its meaning.1 These
historical considerations have led the courts and commentators to conclude that
the sole purpose of the second amendment was to ensure the right of the states
to maintain militias in a state of preparedness so as to provide protection against
the possibility of an oppressive national government and to avoid the need for
standing armies. They have determined that the amendment was not meant to protect
an individual right to own and possess firearms except as such ownership and
possession relates to the preservation of the state militias.2
Finally, it is now clear that the second amendment operates solely as a restriction
on the federal government and that state firearm regulations are therefore
restricted only by similar state constitutional provisions.3
This Note will evaluate the conclusions which have been reached pertaining to
the scope and meaning of the second amendment, as well as examine various state
constitutional provisions which affect the right to keep and bear arms.
II. English Background
It is well established that many of the American political traditions and
institutions trace their origins back into English history. One particular
segment of English history, the experience of the English people with standard
armies and militias which led to the promulgation of the English Bill of Rights
of 1689, is generally considered to be the conscious and direct antecedent of the
second amendment.4
The history of that part of the seventeenth century which preceded enactment
of the English Bill of Rights was one of an unending struggle between the crown
and its subjects, which finally culminated in civil war 1642.5
This period was marked by the assertion of boundless royal powers by the king
and the use of large standing armies in enforcing the dictates of the crown.6
When the monarchy was abolished at the end of the civil war. Its arbitrary rule
was merely replaced by a military dictatorship, created and maintained largely
by force of arms and the support of a disciplined standing army.7
This military rule intensified the English people's hatred and distrust
of standing armies.8
Therefore, when the monarchy was finally restored under Charles II, the militia
system was revived and again relied upon for the country's defense.9
A militia comprised of the able-bodied members of the community had long been viewed
as preferable to professional standing armies in protecting the security and
freedom of the state and its inhabitants.10 From early
times, the English landed proprietors had been required to equip and maintain their
tenants and retainers as men-at-arms for military service when needed by the government.11
This had constituted the militia, which had long been the sole military force
of the kingdom.
During Charles II's reign, politics was dominated by religious controversy,
and especially by the prospect that the King's Catholic brother, the Duke of York,
would succeed to the throne.12 In reaction to the fear of Catholic
domination of the government, the Protestant Parliament passed two Test Acts which
barred Catholics from all civil and military offices and from both houses of
Parliament.13
In 1685, Charles II died and the Catholic Duke of
After William and Mary arrived in
(1)
an enumeration of particular abuses said to have been engaged in by James II;
and (2) a declaration of certain "ancient rights and liberties."22
The abuses referred to in the first part of the statute relevant to
present discussion are the assertions that James II
5.
By raising and keeping a standing army within this kingdom in time of peace, without
consent of parliament, and quartering soldiers contrary to law.
6.
By causing several good subjects, being protestants, to be disarmed at the same
time when papists were both armed and employed contrary to law.23
As
one commentator has pointed out, these grievances were not intended to assert
that James II disarmed Protestants in any literal sense, but instead referred to
his practice of replacing Protestants with Catholics at important military posts,
thereby excluding Protestant participation and influence in the affairs of the standing
army. This section of the statute also referred to James II's desire to abandon
the militia in favor of a standing army, thereby precluding Protestant participation
in the one type or organized armed force which could have been called upon to
resist impositions by the Catholic James II and his Catholic standing army.24
The corresponding declaration of rights proclaimed:
6. That the raising or keeping a standing army
within the kingdom in time of peace, unless it be with consent of parliament,
is against law.
7. The the subjects which are protestants, may
have arms for their defense suitable to their conditions, and as allowed by
law.25
When
the enumeration of abuses and the declaration of rights are read together, in
the seventeenth century context of religious strife, arbitrary royal rule, fear
of standing armies, and trust in the militia, the conclusion reached by various
courts26
and commentators27 has been that the English Bill of Rights was not intended to
create or reaffirm any personal right of individuals to possess and use
weapons. Rather, the Declaration has been interpreted as a reiteration of the
preference for militias over standing armies, as a prohibition against future
attempts to abolish the militia, and as an assertion of the rights of Protestants
to participate in the militia. The grievance addressed in the Bill of Rights was
the maintenance by the king of a large standing army, quartered among the people,
through which he could force his subjects, and especially the Protestants, to submit
to his arbitrary rule.28
The English people's faithe in citizen militias convinced them that the
maintenance of an efficient militia was necessary so that the populace could
force an oppressive government to respect their rights or, if need be, to rise up
in resistance as a collective body to force the oppressors to surrender the
government.29
It was in this sense - through the existence of a militia - that the
Protestants could "have arms for their defense."
The
abuses noted in the Bill of Rights and the remedy which was believed would
preclude such future abuses became entrenched in Anglo-Saxon political thought.30
The framers of the American Bill of Rights were very familiar with English
history and deeply impressed by the leading political thought of the day.31
When the American colonists were presented with a situation comparable to that
with which the English had been presented, the conclusions reached about
standing armies and militias in England molded American thought and influenced
the framers' perceptions of the proper relationship between the government and
the governed.
III. American Origins
A.
Colonial
When
the Federal Constitution was written, the provisions included were the product
of both the prevailing political though of the day and the former colonists'
experiences with the mother country. In particular, these experiences
influenced the framing of the second amendment and so must be examined in
ascertaining its intended meaning.
The
most important of these experiences related to
The
Colonial distrust of standing armies was intensified by the conflicts between
King George III and the colonists. It was the deeply-held belief of the
colonists that the rights possessed by Englishmen were just as applicable in
America as they were in England.34 They were willing to acknowledge the
King's authority, but they insisted that it be exercised in accordance with
their colonial charters and with the same limitations that restricted the King's
power in England.35
However, George III and Parliament, at that time under the firm control of the King,
did not recognize such restrictions. Both believed that the King's authority over
his subjects in
In
order to compel the colonies to accept his absolute authority, George III
maintained a large army in America.37 The colonists
found the presence of these troops during times of peace very objectionable and
were outraged by the use of these forces to enforce what they already
considered to be arbitrary and oppressive laws.38
Most
objectionable to the colonists as threats to individual liberty were the measures
utilized to maintain military rule in the colonies.39 One measure particularly
complained of was the quartering of troops in private homes in peacetime
without the consent of the owners.40 Another aspect of
military rule which was repulsive to the colonists was the eventual imposition of
martial law and the trial of civilians by courts-martial.41
These actions strengthened the colonists' belief that such oppressive measures were
the usual consequence of the existence of a standing army.42
Furthermore, the use of an armed force by George III as an instrumentality of
his arbitrary rule deepened the conviction of American colonists that a
standing army was excessively susceptible of being utilized for the usurpation
of power by a strong central government.43 As a result of
these perceptions, the colonists' belief that standing armies constituted a
threat to the liberties of the people was greatly intensified.
The
militia system was long perceived by Americans as the preferable means of defense
in a free nation44
because it eliminated the need for standing armies except in extraordinary circumstances.45
The colonists always relied upon the militia system46 and found it to
be an adequate method of protection.47 To ensure the
existence of an adequate number of militiamen when the need arose, every male
of military age and capacity was required by law to be enrolled for military
service.48
Furthermore, because colonial treasuries were sparse, every militiaman was also
required by law to provide at his own expense specified weapons and related
equipment.49
Therefore, the colonists believed that individual ownership and possession of
weapons was of the utmost importance in order to maintain the militia as a strong
and viable means of defense.
Weapons
were also important in colonial
B.
State Ratifying Conventions
After
the federal Constitution was drafted at the Constitutional Convention in 1787, it
was submitted to the states for ratification. The ratification process became a
battle between the proponents of the Constitution - the "Federalists"
- and its opponents - the "Anti-Federalists." The Anti-Federalists soon
adopted as their main point of objection to the Constitution the absence of a
bill of rights to serve as a restraint on governmental power. This objection eventually
resulted in the recommendation of amendments by the ratifying conventions of
several key states.
Although
the number of states required for ratification had done so, Virginia has not
yet assented, and it was believed that a permanent union government without Virginia,
the wealthiest and most populous of the states was impossible.55
The Virginia Anti-Federalists were therefore determined to prevent ratification
or to exact recommendations for constitutional amendments which they thought
were necessary to preserve and protect the liberties of the states and the
people under the new system of government.56 When it eventually
became apparent to the Virginia Federalists that they did not have the votes
necessary for ratification, they agreed to accept the recommendation of
amendments as a concession to the opposition.57 Upon approval
ratification by a vote of 89 to 79, a committee, headed by the most resolute of
the Virginia Anti-Federalists, Patrick Henry and George Mason, was chosen to
present proposed amendments.58 This committee's product consisted
of forty proposed amendments, the first twenty of which were in the nature of a
bill of rights.59
The
seventeenth article of the proposed bill of rights read as follows:
Seventeenth, That the people have a right to keep
and bear arms; that a well regulated Militia composed of the body of the people
trained to arms is the proper, natural and safe defence of a
It
is submitted that this recommended amendment has a greater impact on
If
it is true that Virginia's proposal had a great impact on Madison's proposed
amendment, much can be learned about the intended meaning of the second
amendment by examining the Anti-Federalists' concerns to which the Virginia
proposal was addressed. The major object of Anti-Federalist concern in this respect
was article I, section 8, clause 16 of the Constitution, the so-called militia clause.
This clause stated that Congress shall have the power:
To provide for organizing, arming, and disciplining
the militia, and for governing such part of them as may be employed in the
service of the
It
was the view of the Anti-Federalists that this clause gave Congress the
exclusive power to provide for arming the militia and prevented the states from
doing so themselves.65
This, feared the Anti-Federalists, would permit the Congress to disarm the state
militias by neglecting to provide for their arms and thereby render them
useless.66
The Anti-Federalists argued that the elimination of the militias and the
establishment of a standing army would allow the national government to strip
the people of their liberties, as had occurred throughout history whenever a standing
army had been established.68
The
Federalists contended that the power of Congress to arm the militia was not
exclusive, but rather, concurrent with the states; hence, the states could arm
the militia if Congress failed to do so.69 However, the
Anti-Federalists best by implication.70 Already
apprehensive about the powers of the federal government, the Anti-Federalists
were not content to set forth such an important right by implication.71
Therefore, the Anti-Federalists insisted upon an express statement in the
Constitution that the states would also have the power to arm the militia.
This,
therefore, was the concern of the Anti-Federalists and the basis for the
amendment which was proposed by the
D.
On
June 8, 1789, James Madison introduced his proposed amendments in the House of
Representatives. The fourth paragraph of the fourth proposal read:
The right of the people to keep and bear arms shall
not be infringed; a well armed and well regulated militia being the best security
of a free country: but no person religiously scrupulous of bearing arms shall be
compelled to render military service in person.75
The
intended purpose of this proposed amendment was clearly to ensure that the states
retained the power to arm the militia so as to preserve their effectiveness as
an instrument of defense. The provision declares, in effect, that because a
well-armed militia is necessary, any action which would cause the militia to
become less than well-armed shall be prohibited.76 The proposal was
not intended to protect an individual right, but rather the collective right of
the people to keep and bear arms in the form of a well-armed militia.77
In short, "the right to keep and bear arms is the right to maintain an
effective militia."78
IV. Judicial Interpretation
A.
Federal Court Decisions
The
number of cases in which the second amendment has been subjected to judicial
interpretation is very small. One important reason for this is that the United States
Supreme Court has held that the second amendment is a limitation on the federal
government only and does not restrict state legislation.79
Therefore, most of the cases which examine the second amendment are federal
court decisions.
The
Supreme Court decision restricting the application of the second amendment to
federal legislation was United States v. Cruikshank.80
In Cruikshank,
the defendants had been convicted of violating the Civil Rights Enforcement Act
of 187081
by conspiring to deprive two black citizens of the free exercise and enjoyment
of rights and privileges granted and secured to them by the Constitution and
laws of the United States.82 One such right, the plaintiff's
enjoyment of which the defendants were alleged to have prevented was the right under
the second amendment to keep and bear arms for a lawful purpose. The Supreme
Court reversed the convictions, finding that no offense indictable under the
federal act had occurred since this right is not one granted or secured by the
federal Constitution. The Court stated:
The second and tenth counts are equally defective.
The right there specified is that of "bearing arms for a lawful
purpose." This is not a right granted by the Constitution. Neither is it
in any manner dependent upon that instrument for its existence. The second
amendment declares that is shall not be infringed; but this...means no more than
that it shall not be infringed; but this...means no more than that it shall not
be infringed by Congress. This is one of the amendments that has no other
effect than to restrict the powers of the national government, leaving the
people to look for their protection against any violation by their fellow-citizens
of the rights it recognizes, to what is called...[the police powers'.83
The
principle that the second amendment is a limitation only upon the federal
government and not upon the states was reaffirmed by the Supreme Court in two
subsequent cases, Presser v. Illinois 84 and Miller
v. Texas.85
However, it is important to note that the opinions in Cruikshank, decided in 1876,
Presser, decided in 1886, and Miller v. Texas, decided in 1894,
were all rendered during the era when the prevailing principle was that
elucidated by Chief Justice Marshall in Baron v. Mayor of Baltimore,86
which had held that the Bills of Rights does not apply to and restrict the states.87
Since that time, many other provisions of the Bill of Rights have been held to
be applicable to the states through the fourteenth amendment.88
However, no case raising this issue as to the second amendment has reached the Supreme
Court since it decided Miller v. Texas in 1894, well before
the initiation of the "selective incorporation" process, although
this principle has been reaffirmed on a number of occasions by state court
decisions.89
The
question is therefore raised whether the Supreme Court, if faced with the issue,
would reaffirm its previous holding in Cruikshank, Presser, and Miller
v. Texas or would instead apply the restrictions of the second
amendment to the states. One commentator has suggested that it is possible that
the Supreme Court would find the second amendment applicable to the states
through the fourteenth amendment.90 He notes that
under the analytical frame work which the Court appears to use, "the
'fundamentalness' of a right dictates its applicability to the states" and
that, under this test, "there is much to suggest that the second amendment
should be so construed."91 However, the right referred to as
"fundamental" by this commentator is an individual right to bear
arms,92
an interpretation of the second amendment which is contrary to that which has
been made by the Supreme Court.93 Therefore, it does not appear likely
that the second amendment, under the meaning currently attributed to it, could
be held to be a fundamental right which would apply to the states through incorporation
in the fourteenth amendment.
A
second commentator has suggested that the second amendment restricts the states
in a different fashion. He notes that article I, section 8, clauses 15 and 16
of the Constitution give Congress the power to provide for the arming,
organizing, disciplining and calling forth of the militia. In light of these constitutional
provisions, he asserts that it is possible to view the second amendment as
protecting "the right of the Federal government to have at its disposal a
militia, the right of whose members 'to keep and bear arms' may not be
infringed by state governments."94 The author of
this theory claims that his interpretation is supported by dictum found in Presser
v. Illinois.95
In
Presser,
the defendant had been convicted of violating an
The
Supreme Court affirmed Presser's conviction on the grounds that the second
amendment does not apply to the states. However, the Court also noted in
dictum:
It is undoubtedly true that all citizens capable
of bearing arms constitute the reserved military force or reserve militia of
the United States as well as of the States, as well as of its general powers,
the States cannot, even laying the constitutional provision in question [the
second amendment] out of view, prohibit the people from keeping and bearing
arms, so as to deprive the United States of their rightful resource for
maintaining the public security, and disable the people from performing their duty
to the general government. But, as already stated we think it clear that
the sections under consideration do not have this effect.97
This
commentator propounding this theory asserted that the Court thereby "recognized
that there were limits beyond which a state could not constitutionally go"
in restricting the possession of weapons.98
It
is submitted, however, that the Court's statement in Presser places no restrictions
on state legislation at the present time. It seems eminently clear that the
Court's concern in Presser was the availability of armed state militias for use by
the federal government. If the state maintains some militia force which is available
for service and which is armed in some manner, it would appear that the state
has met any duties it might have and need go no further. Today the state
militias are part of the National Guard. It is these units, armed exclusively
by the federal government, which provide the federal government with any
militia forces it might need.99 Thus, state restrictions on the
ownership and possession of weapons can in no way hinder the availability of an
armed militia and may therefore be constitutionally enacted.100
Furthermore,
in view of the purposes which the second amendment was meant to further, it
would seem illogical to apply it to state governments. The second amendment was
intended to prohibit any federal action which would prevent a state from arming
its militia if the federal government failed to do so. It was thus meant to apply
as a prohibition against the disarming of the militias by the federal
government, not by the state governments.
The
only other case in which the Supreme Court has had occasion to discuss, the scope
and meaning of the second amendment was United States v. Miller,101
decided in 1939. The National Firearms Act of 1934102 had imposed a
stiff tax on importers, manufacturers, dealers, and transferor of sawed off
shotguns, machine guns, and similar weapons and had required the registration of
such weapons. The defendants in Miller were charged with violating
this Act by transporting in interstate commerce an unregistered 12-gauge shotgun
with a barrel of less than eighteen inches in length.103
The
Supreme Court rejected the second amendment challenge to the Act, holding that:
In the absence of any evidence tending to show
that possession or use of a "shotgun having a barrel of less than eighteen
inches in length" at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia,
we cannot say that the Second Amendment guarantees the right to keep and bear
such an instrument. Certainly it is not within judicial notice that this weapon
is any part of the ordinary military equipment or that its use could contribute
to the common defense.104
This
conclusion appears to have been based upon the Court's determination that the
second amendment was enacted "[w]ith [the] obvious purpose to assure the continuation
and render possible the effectiveness of...[the militia]."105
The Court observed that the militia forces used in colonial America and at the
time of the enactment of the second amendment consisted of citizens who were
required by law to be available for militia service if the need arose.106
The Court also took note of the statutes which required these men to supply
their own arms when called for service.107 The implicit
conclusion of the Court was that, because the maintenance of an armed militia
at the time of the enactment of the second amendment depended upon the
militiaman's supplying of his own weapons, the individual's right to own and
possess weapons exists only if the weapon "at this time has some reasonable
relationship to the preservation or efficiency of a well regulated
militia."108
The
precise meaning of the Supreme Court's opinion in Miller has seemed unclear
to a number of commentators and courts. One commentator has asserted that the decision
rested upon a failure of proof, and that had it been shown that the shotgun
could effectively contribute to the common defense, the firearm restrictions
might have been found to exceed the regulatory power of Congress.109
The commentator assails the "pernicious
implication" that "[t]he deadlier the weapon, the greater its
protection under the second amendment - whether a machine gun, bazooka or ray gun,"
although he believes that it is very doubtful that the Court intended to
establish such a rule.110
The
First Circuit of Appeals was also troubled by this possible interpretation of Miller
and attempted to clarify its meaning in Cases v. United States.111
Cases
involved a violation of the Federal Firearms Act112 which made it
unlawful for any person who has been convicted of a crime of violence or who is
a fugitive from justice to ship or cause to be shipped firearms or ammunition in
interstate or foreign commerce or to receive a firearm or ammunition which has been
shipped in interstate or foreign commerce. The defendant was convicted of unlawfully
receiving a revolver and ammunition. The court, in rejecting the argument that the
Federal Firearms Act was violative of the second amendment, considered the Supreme
Court's holding in Miller and decided that it was not meant to be a general rule
applicable to all cases but was instead limited to its facts.113
The
court's reason for narrowly construing Miller was that the principle
established therein, if intended to be a general, comprehensive rule, would
achieve totally unreasonable results. Construed as protecting the possession of
any weapon bearing a reasonable relationship to the efficiency of a present-day
well-regulated militia unit, the second amendment would permit the federal
government to regulate only those weapons which could be classified as antiques
or curiosities - such as a flintlock musket or a matchbook harquebus. This
would mean, concluded the court, that the limitation of the second amendment is
absolute, a result too unreasonable to have been intended by the Supreme Court.114
A
second unreasonable result which the court believed would flow from a general
application of the principle established in Miller was that, under such a rule,
Congress would be prohibited from regulating the use and possession of
distinctly military arms, such as machine guns and anti-tank or anti-aircraft
weapons, by private persons who are not present or prospective members of any
military unit, even though it would be inconceivable under the circumstances that
a private individual could have a legitimate reason for owning or possessing
such a weapon. The court felt it was unlikely that the second amendment was
intended by its framers to countenance such an unreasonable result.115
The
court in Cases stated that it would be better, in light of the many factors
involved in any determination of the permissible extent of firearm regulation,
to forego any attempt to formulate a general rule and to instead decide each case
on its own facts.116
It appears to be the court's view that it is not the military usefulness of a
particular firearm which will decide whether the weapon may be constitutionally
regulated, but rather whether the person possessing the weapon "was or
ever had been a member of any military organization" and whether the use
of the weapon under the particular circumstances "was in preparation for a
military career."117
Because the defendant in Cases did not satisfy either of
these criteria, the Federal Firearms Act, as applied to the defendant, did not
conflict with the second amendment.118
Since
the Cases
decision in 1942, there have been no federal court decisions analyzing either
the second amendment or the Miller rule in depth. A number of
cases have involved second amendment challenges to federal firearm legislation,
but in each the court summarily rejected the challenges on the basis of Miller,
by noting that the weapon in question bore no reasonable relationship to the preservation
of a well-regulated militia.119 However, it is submitted that the
Supreme Court in Miller and other federal courts in subsequent cases have
misread the applicability of the second amendment in twentieth century America.
The second amendment was intended to go no farther than to guarantee
effectively armed militias in order to forestall reliance upon a standing army.
It was meant to ensure a state's right to arm its militia as it chose if the
federal government failed to do so. The right of an individual to possess a weapon
for militia service is protected by the second amendment only if the state chooses
to supply its militia by requiring each militiaman to provide his own weapons,
and not if it does so by another method. Under existing federal law, in effect
for over sixty years, the federal legislation which would seek to regulate the
ownership, possession, and use of weapons by individuals.
B.
State Court Decisions
Since
the second amendment operates as a limitation only on federal firearm regulation,
it is the state constitutions which restrict state regulation. State constitutional
provisions are very diverse and have been subject to numerous interpretations. Nevertheless,
several tentative generalizations will be set forth.
First,
it is important to note that thirteen state constitutions contain no provisions
relating to a right to keep or bear arms.121 In the absence
of any constitutional provision, the state courts have had little difficulty in
rejecting constitutional challenges to firearm legislation, usually on the
grounds that such regulation is a proper subject for the state's police power. However,
in a state having no restriction in its own constitution on the permissible
scope of state firearm legislation, the question as to whether the second
amendment applies to the states takes on greater significance and usually
receives more judicial attention.
An
illustrative example of a state court decision in a state have no constitutional
provision for the right to bear arms in Burton v. Sills,122
rendered in 1968 by the New Jersey Supreme Court. Burton involved a
challenge to a New Jersey statutory scheme which provided for the licensing of firearm
manufacturers, wholesalers, and retail dealers and required prospective firearm
purchasers to first acquire permits and identification cards from the local
chief of police.123
The statute further provided for the licensing of firearm manufacturers, wholesalers,
and retail dealers and required prospective firearm purchasers to first acquire
permits and identification cards from the local chief of police.123
The statute further provided that no permit and identification card would be issued
to certain classes of individuals such as convicted criminals and minors. The
challenge to this scheme was rejected by the New Jersey Supreme Court,
ultimately on the basis that the state could impose such limitations on the
carrying, sale, and possession of weapons as the safety and welfare of the
people of the state require. In other words, in the absence of constitutional provision,
the regulation will be upheld if it is a proper exercise of the police power.124
However, before reaching this result, the court engaged in an extended discussion
of the nature and scope of the second amendment finally concluding that it would
follow established authority and hold prohibitions of the second amendment
inapplicable to state firearm legislation.125
One
state constitutional provision appears in identical or nearly identical form in
several states,
All
state courts, like the court in Brown, have recognized the
importance of the state's interest in the regulation of crime and, whatever its
particular constitutional provision, have held that any constitutional
limitation on the state's power to regulate the possession and ownership of
firearms must be subject to the state's police power.131 The
constitutional provisions of many states explicitly provide this.132
The Texas provision, for example, which uses language very similar to the
Michigan provision construed in Brown and which, according to cases
interpreting it, also acknowledges an individual right to possess weapons for the
private defense of person and property,133 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 power, by law, to regulate the wearing
of arms, with a view to prevent crime."134
Most
of the state court decisions have therefore focused upon the degree of permissible
state firearm regulation. The earliest type of firearm legislation to be examined
and upheld as a constitutional regulation of the possession and use of weapons
were statutes prohibiting the carrying of concealed weapons. With the exception
of one opinion, Bliss v. Commonwealth,135 every state court
decision to consider a concealed weapons statute has found it constitutional.136
In addition, may state constitutional provisions expressly permit the
prohibition of carrying of concealed weapons as an exception to any right to
bear arms.137
Kentucky is one of the states to have such a provision, enacted specifically to
overrule the decision rendered in Bliss.138 The court in
Bliss was of the opinion that the right to bear arms was an individual one and was
absolute, not abridgeable even by the exercise of the police power.139
This decision has subsequently been severely criticized by other courts and its
declaration that the right to bear arms is absolute has never been accepted by
another court.140
Also
upheld as permissible state regulation against charges of infringement upon a
right to bear arms have been statutes prohibiting the carrying of weapons in public
places,141
or on the property of another,142 or while in prison.143
The courts have likewise rejected attacks upon state statutes which prohibited
the possession or carrying of a firearms without first obtaining a license have
also beengenerally sustained.146
However,
regulations which exceed the scope of the types mentioned produce differing results
among the state courts. The state's particular constitutional provision then becomes
increasingly significant. A comparison of two state court decisions, Salina
v. Blaksley,147
decided in 1905 by the Kansas Supreme Court, and State v. Kerner,148
a 1921 opinion by the North Carolina Supreme Court illustrated this
generalization.
The
defendant in
This
expansive view of the legislature's power to enact firearm regulations is in
sharp contrast with the view taken by the North Carolina Supreme Court in State
v. Kerner.153
In Kerner,
the defendant had been charged with violating a statute which prohibited the carrying
of a weapon off his premises, even if unconcealed and for a lawful purpose, without
first obtaining a permit. The North Carolina constitutional provision then in
effect stated: "The right of the people to keep and bear arms shall not be
infringed;...nothing herein contained shall justify the practice of carrying weapons
or prevent the Legislature from enacting penal statutes against said practice."154
The court found that the statute which the defendant was charged with violating
contravened this constitutional provision. A distinction was drawn between the "prohibition
" and the mere "regulation" of the right to bear arms, the former
constituting an abridgment of the constitution while the latter did not.155
The court noted that the purpose of the constitutional right was to enable "the
people to protect themselves against invasions of their liberties"156
and to defend "person and property against mobs and violence,"157
by preserving to the people "the right to acquire and retain a practical
knowledge of the use of firearms."158 Because the
statute prohibiting the carrying of an unconcealed weapon without a permit would
contravene the purpose of the North Carolina Constitutional provision, it is a "prohibition"
of the right to bear arms and is therefore void. Furthermore, the court held,
even as a regulation it is void because it is an unreasonable regulation.159
The
distinction drawn between permissible regulations and impermissible prohibitions
by the North Carolina Supreme Court is not an uncommon one,160
but, as in the Kerner case, the explanation as to why a particular statute
falls within either of the categories is never adequate. The view taken by the
Kansas Supreme Court in
IV. Conclusion
In
all likelihood, some type of new federal firearm legislation will be enacted in
the foreseeable future. When this occurs, there will be a flurry of challenges
in the courts to the legislation on the ground that it violates the second
amendment, as occurred after Congress enacted the National Firearms Act of 1934
and the Federal Firearms Act of 1938. It is submitted that on the basis of the few
cases which have considered the nature and scope of the second amendment and in
light of the purposes which the second amendment was intended to further, it is
improbable that any type of federal regulation will or should be held by the
courts to infringe upon the second amendment.
Nor
do most state constitutional provisions, it is submitted, constitute an obstacle
to further state firearm regulation. However, the constitutional provisions in
some states have on occasion been held to guarantee a more substantial
individual right to bear arms, and therefore, state legislation which is more
expansive in scope may in particular states be subjected to successful
challenges as violative of a "right to bear arms."
Footnotes:
1. See, e.g., United States v. Miller, 307 U.S. 174 (1939); Feller
& Gotting, The Second Amendment: A
Second Look, 61 Nw. U.L. Rev. 46 (1966) [hereinafter cited as Feller &
Gotting].
2. See, e.g., United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463
(1943); Rohner, The Right to Bear Arms: A
Phenomenon of Constitutional History, 16 Cath . U.L. Rev. 53, 60 (1966)
[hereinafter cited as Rohner].
3. United States v. Cruikshank,
92 U.S. 542 (1876).
4. A. Sutherland,
Constitutionalism in America 97098 (1st ed. 1965): E. Pound, The Development of
the Constitutional Guarantees of Liberty 83-84 (1957); sources of Our LIberties
303 (Perry & Cooper ed. 1959) [hereinafter cited as Sources]; Feller &
Gotting, supra note 1, at 47. As an indication
of American thought at the time of the enactment of the state and federal constitutional
provisions, it is interesting to note that during the Virginia convention called
for ratifying the federal constitution in 1788, Patrick Henry referred to the English
experience as a reason for including a bill of rights in the federal
constitution. 3 The Debates in the Several State Conventions on the Adoption of
the Federal Constitution 316-17 (s2ed. J. Elliot ed. 1836 [hereinafter cited as
Elliot's Debates].
5. Weatherup, Standing Armies and Armed Citizens: An
Historical Analysis of the Second Amendment, 2 Hast. Const. L.Q. 961, 966
(1975) [hereinafter cited as Weatherup]
6. Id. at 966-68; see D. Wilson,
a History of England 385-95 (1967) [herein after cited as D. Willson].
7. Weatherup, supra note, at 969. For example, one
historian describes how Cromwell forcibly dissolved Parliament by sending his
musketeers to the House of Commons, compelling its members to file out of the chamber
and locking the door behind them. D. Willson, supra note 6, at 415.
8. D. Willson, supra note 6, at 418; Weatherup, supra note 5, at 969.
9. Weatherup, supra note 5, at 970.
10. Note, Constitutional
Limitations on Firearms Regulation, 1969 Duke L.J. 792-794.
11. Emery, The
Constitutional Right to Keep and Bear Arms, 28 Harv. L. Rev. 473-474 (1915)
[hereinafter cited as Emery].
12. Weatherup, supra note 5, at 970.
13. Test Act, 1673, 25 Car.
2, c. 2; Parliamentary Test Act, 1678, 30 Car. 2, Stat. 2; Weatherup, supra note 5, at 970-71.
14. D. Willson, supra note 6, at 440.
15. Weatherup, supra note 5, at 971-72.
16. Id. at 971.
17. Id. at 971-72.
18. Id. at 972; D. Willson, supra
note 6, at 441.
19. Weatherup, supra note 5, at 972-73.
20. Rohner, supra note 2, at 58.
21. Bill of Rights of 1689,
I W. & M., sess. 2, c.2.
22. Weatherup, supra note 5, at 973.
23. Bill of Rights of 1689,
I W. & M., sess. 2, c.2, reprinted in
Sources, supra note 4, at 245.
24. Weatherup, supra note 5, at 973; see Rohner, supra note 2, at 59; see
Feller & Gotting, supra note 1, a
48-49.
25. Bill of Rights of 1689,
1 W. & M., sess. 2, c.2, reprinted in Sources, supra note 4 at 246.
26. See, e.g., Burton v. Sills, 53 N.J. 86, 248 A.2d 521 (1968), appeal dismissed 394 U.S. 812 (1969);
Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840).
27. See e.g., Feller &
Gotting, supra note 1, at 48-49; Haight, The Right to Keep and Bear Arms, 2 Bill of
Rights Rev. 31, 32-33 (1941) [hereinafter cited as Haight]; Weatherup, supra
note 5, at 973-74.
28. Haight, supra note 27, at 33.
29. Id.
30. See Note, The Right to Bear Arms,
19 S.C.L. Rev. 402, 404 (1967) [hereinafter cited as S.C. Note].
31. R. Rutland, The Birth of
the Bill of Rights 1776-1791, at 4 (1955) [hereinafter cited as R. Rutland];
Emery, supra note 11, at 475; Haight,
supra note 27, at 33; see Rohner, supra note 2, at 56-57. For example, during the Virginia ratifying
convention of 1788, Patrick Henry referred to the English experience as a
reason for including a bill of rights in the federal constitution. Elliot's
Debates, supra note 4, at 316-17.
32. See division II, supra.
33. See Weatherup, supra note
5, at 974. Weatherup points out that the New England when Cromwell came to
power. Id.
34. R. Rutland, supra note 31, at 4.
35. Weatherup, supra note 5, at 975.
36. See Id. at 975-77. For example,
parliament in 1766 enacted the Declaratory act. 6 Geo. 3, c. 12 (1766), which chastised
the colonial legislative bodies for enacting measures derogatory to the authority
of Parliament and the Crown, declared that the American colonies were subordinate
to the King and Parliament, and declared that the King and Parliament had "full
Power and Authority to make Laws and Statutes of sufficient Force and Validity
to bind the Colonies and People of America...in all Cases whatsoever."
Weatherup, supra note 5, at 975-76.
37. Rohner, supra note 2, at 56.
38. Emery, supra note 11, at 475; Weatherup, supra note 5, at 977. Evidence of this
outrage is found in the writings of the period. For example, Thomas Jefferson decried
the use by the King of "large bodies of armed forces" as a means of enforcing
his "arbitrary measures," T. Jefferson, A Summary View of the Rights
of British America (August, 1774), reprinted in The Complete Jefferson 17 (S.
Padover 1943), and James Wilson wrote that the use of military force was an
element in George III's "Plan of reducing the colonies to slavery', J.
Wilson, An Address to the Inhabitants of the Colonies (February 13, 1766),
quoted in Feller & Gotting, supra
note 1, at 50. Most revealing is that the list of grievances against George III
contained in the Preamble to the Declaration of Independence included one which
stated that "He has kept among us, in times of peace. Standing Armies
without the consent of our Legislatures." Rohner, supra note 2, at 56 n. 18.
39. See Feller & Gotting, supra
note 1, at 49-50.
40. Id. at 50.
41. Id. at 51.
42. See Weatherup, supra note
5, at 977; see Feller & Gotting, supra note 1, at 49-51.
43. See Weatherup, supra note
5, at 977-78.
44. Feller & Gotting, supra note 1, at 51-52.
45. Id. The strength of the colonists' belief in the militia is
evidenced by their resistance to the attempted seizure of militia arms by
British soldiers in April 1775 at Lexington. The result was the first important
battle of the American Revolution. Id.
at 52.
46. Emery, supra note 11, at 475.
47. Feller & Gotting, supra note 1, at 51.
48. Emery, supra note 11, at 475; United States v.
Miller, 307 U.S. 174, 179-82 (1939).
49. Emery, supra note 11, at 474-75; Haight, supra note 27, at 33.
50. Rohner, supra note 2, at 57; Note, Constitutional Limitations on Firearms Regulation,
1969 Duke L.J. 773, 796 [hereinafter cited as Duke Note].
51. Rohner, supra note 2, at 57; Duke Note, supra note 50, at 796.
52. Rohner, supra note 2, at 57.
53. R. Rutland, supra note 31, at 124. Robert Allen
Rutland presents an excellent account of the Anti-Federalists' use of this
issue in their attempt to block ratification of the Constitution by the states
and their eventual victory in several of the states in securing the
recommendation of amendments in return for ratification . Id. at 126-89.
54. R. Rutland, supra note 31, at 162.
55. Id.
56. See id. at 159-66.
57. Id. at 171.
58. Id. at 174.
59. E. Dumbauld, The Bill of
Rights and What it Means Today 183-89 (1957) [hereinafter cited as E. Dumbauld].
60. Id. at 185.
61. Id. at 21.
62. Id. at 23. The one proposal which was deleted during Congress'
consideration of the amendments would have allowed conscientious objectors to
avoid bearing arms by hiring a substitute. Id.
63. Id. at n.42; R. Rutland, supra
note 31, at 206.
64. U.S. Const. art I, ** 8
cl. 16.
65. Elliot's Debates, supra note 4, at 385-86.
66. Id. at 379.
67. Id.
68. Id. at 380. These concerns can be discerned from the remarks made by
George Mason, an Anti-Federalist leader, at the Virginia convention:
There are various ways of destroying
the militia. A standing army may be perpetually established in their stead. I abominate
and detest the idea of a government, where there is a standing army. The militia
may be here destroyed by that method which has been practised in other parts of
the world before; that is, by rendering them useless - by disarming them. Under
various pretences, Congress may neglect to provide for arming and disciplining
the militia; and the state governments cannot do it, for Congress has an
exclusive right to arm them...Should the national government wish to render the
militia useless, they may neglect them, and let them perish, in order to have a
pretense of establishing a standing army.
...[W]hen once a standing army is established
in any country, the people lose their liberty. When, against a regular and
disciplined army, yeomanry are the only defence, - yeomanry, unskilled and
unarmed, - what chance is there for preserving freedom?...Recollect the history
of most nations of the world. What havoc, desolation, and destruction, have
been perpetrated by standing armies.
Id.
at 379-80.
69. Id. at 382.
70. Id. at 386-87.
71. Id. at 384-88.
72. See text accompanying notes 48-49 supra.
73. United States v. Miller,
307 U.S. 174, 178-79 (1939).
74. See Elliot's Debates, supra
note 4, at 171.
75. E. Dumbauld, supra note 59, at 207. The amendment
passed by the House of Representatives on August 24, 1789 read:
A well regulated militia,
composed of the body of the People, being the best security of a free State,
the right of the People to keep and bear arms, shall not be infringed, but no
one religiously scrupulous of bearing arms, shall be compelled to render
military service in person.
Id.
at 214. The Senate on September 9, 1789, enacted a provision which stated:
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.
Id.
at 271. It was the Senate's version which was accepted in the conference committee
and presented to the states for ratification. The rephrasing of the proposal by
the House and the Senate, except for the Senate's deletion of the clause exempting
conscientious objectors from bearing arms in military service, does not appear
to have been intended as a change in the substance of the proposed amendment,
but instead seems to have been merely the result of stylistic considerations. Feller
& Gotting, supra note 1, at 62.
76. Feller & Gotting, supra note 1, at 61.
77. Mosk, Gun Control Legislation: Valid and Necessary,
14 N.Y.L.F. 694, 709 (1968) [hereinafter cited as mosk]; S.C. Note, supra note 30, at 405. This conclusion
is further supported by a textual interpretation of Madison's proposal. It is
noted that when referring to conscientious objectors, the phrase used by
Madison was "no one" and the phrase used in the version adopted by
the House of Representatives was "no person." This clearly indicated
an intent to apply this provision to individuals. However, when speaking of the
right to bear arms, the collective terms "the people" and "the body
of the People" were used in the two versions. This contrast in terminology
supports the conclusion that while the protection of religious scruples was
seen as an individual right the right to bear arms was intended to be a
collective one, possessed by the people as a body in the form of a well-armed militia.
Mosk, supra note 77, at 709; S.C.
Note, supra note 30, at 402.
78. Feller & Gotting, supra note 1, at 62.
79. United States v. Cruikshank,
92 U.S., 542, 553 (1876).
80. 92 U.S. 542 (1876).
81. Act of May 31, 1870, ch.
114, ** 6, 16 Stat. 14 (current version at 18 U.S.C. ** 241 (1970)).
82. United States v. Cruikshank,
92 U.S. 542, 548 (1876).
83. Id. at 553.
84. 116 U.S. 252 (1886).
85. 153 U.S. 535 (1894).
86. 32 U.S. (7 Pet.) 243
(1833).
87. Rohner, supra note 2, at 66.
88. See, e.g., Malloy v. Hogan, 378 U.S. 1 (1964) (fifth amendment privilege
against self-incrimination); Gideon v. Wainwright, 372 U.S. 335 (1963) (sixth amendment
assistance of counsel); Mapp v. Ohio, 367 U.S. 643 (1961) (fourth amendment).
89. Fife v. State, 31 Ark.
455 (1876); Ex parte Ramirez, 193
Cal. 633, 226 P. 914 (1924); State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916);
People v. Persce, 204 N.Y. 397, 97 N.E. 877 (1912); State v. Kerner, 181 N.C.
574, 107 S.E. 222 (1921); Ex parte
Thomas, 21 Okla. 770, 97 P. 260 (1908); Caswell & Smith v. State, 148 S.W.
1159 (Tex. Civ. App. 1912).
90. Rohner, supra note 2, at 67.
91. Id.
92. Id.
93. See text accompanying notes 101-108 infra.
94. Duke Note, supra note 50, at 789.
95. 116 U.S. 252 (1886).
96. Presser v. Illinois, 116
U.S. 252, 257-58 (1886) (argument of plaintiff-in-error).
97. Id. at 265-66 (emphasis added).
98. Duke Note, supra note 50, at 791-92.
99. 32 U.S.C. ** 101-716
(1970 & Supp. V 1975).
100. S.C. Note, supra note 77, at 409-10.
101. 307 U.S. 174 (1939).
102. National Firearms Act
of 1934, ch. 757, 48 Stat. 1236 (1934) (current version at 26 U.S.C. ***
5801-5803 (1970 & Supp. V. 1975)).
103. United States v. Miller,
307 U.S. 174, 175 (1939).
104. Id. at 178.
105. Id.
106. Id. at 179-82.
107. Id.
108. Id. at 178.
109. Feller & Gotting, supra note note 1, at 65-66.
110. Id.
111. 131 F.2d 916 (1st Cir.
1942), cert. den. sub nom., Velazuez
v. United States, 319 U.S. 770 (1943).
112. Federal Firearms Act of
1938, ch. 850, 52 Stat. 1250 (repealed 1968).
113. Cases v. United States,
131 F.2d 916, 922 (1st Cir. 1942), cert.
den. sub nom. Velazuez v. United Stated, 319 U.S. 770 (1943).
114.Id.
115. Id.
116. Id.
117.Id. at 923.
118. Id. Although the court in Cases made an independent assessment of
the meaning of the second amendment and attempted to elucidate factors which
could be employed in determining whether it was violated by federal legislation,
it nevertheless implicitly agreed with the Supreme Court's determination in Miller that the second amendment was intended
to ensure that the state militias would remain well-armed by prohibiting the
regulation of weapons which reasonably related to the preservation of a well regulated
militia.
119. See, e.g., United States v. Tomlin, 454 F.2d 177 (9th Cir.). cert. den., 406 U.S. 924 (1972): United
States v. Williams, 446 F.2d 486 (5th Cir. 1971); United States v. McCutcheon, 446
F.2d 133 (7th Cir. 1971); United States v. Johnson, 441 F.2d 1134 (5th Cir.
1971); United States v. Synnes, 438 F.2d 764 (8th Cir. 1971), vacated on other grounds, 404 U.S. 1009
(1972).
120. 32 U.S.C. ** 106,
701-710 (1970 & Supp. V. 1975).
121. These states are
California, Delaware, Illinois, Iowa, Minnesota, Nebraska, Nevada, New Jersey,
New York, North Dakota, Virginia, West Virginia and Wisconsin.
122. 53 N.J. 86, 248 A.2d 521
(1968), appeal dismissed, 394 U.S.
812 (1969).
123. Burton v. Sils, 53 N.J.
86, 90, 248 A.2d 521, 522-23 (1968), appeal
dismissed, 394 U.S. 812 (1969).
124. Id. at 99, 248 A.2d at 528.
125. Id. at 92-99, 248 A.2d at 525-28.
126. Mich. Const. art. I,
**6.
127. 253 Mich. 537, 235 N.W.
245 (1931).
128. People v. Brown, 253 Mich.
537, 540, 235 N.W. 245, 246 (1931).
129. Id. at 541, 235 N.W. at 246-47.
130. Id. at 541, 235 N.W. at 247.
131. Haight, supra note 27, at 41.
132. These states are
Colorado, Florida, Georgia, Idaho, Kentucky, Louisiana, Mississippi, Missouri,
Montana, New Mexico, North Carolina, Oklahoma, Tennessee, Texas and Utah.
133. Morrison v. State, 339
S.W. 2d 529, 531 (Tex. Crim. App. 1960); Duke v. State 42 Tex. 455, 458-59
(1875). In the latter case, the court described the right protected by the
Texas provision in this manner:
The arms which every person
is secured the right to keep and bear (in the defense of himself or the State, subject
to legislative regulation), must be such arms as are commonly kept, according
to the customs of the people, and are appropriate for open and manly use in
self-defense, as well as such as are proper for the defense of the State.
Id.
at 458.
134. Tex. Const. art. I,
**23.
135. 12 Ky. (2 Litt.) 90
(1822).
136. State v. Reid, 1 Ala.
612 (1840); State v. Buzzard, 4 Ark. 18 (1842); Carlton v. State, 63 Fla. 1, 58
So. 486 (1912): Nunn v. State, 1 Ga. 243 (1846); McIntire v. State, 170 Ind.
163, 83 N.E. 1005 (1908); State v. Keet, 269 Mo. 206, 190 S.W. 573 (1916); Porello
v. State, 121 Ohio St. 280, 168 N.E. 135 (1929); Ex parte Thomas, 21 Okla. 770. 97 P. 260 (1908); Wright v. Commonwealth,
77 Pa. St. 470 (1875); Aymette v. State, 21 Tenn. (2 Hum.) 154 (1840).
137. These states are Colorado,
Kentucky, Louisiana, Mississippi, Missouri, Montana, New Mexico, North Carolina
and Oklahoma.
138. Feller & Gotting, supra note 1, at 62 n.73.
139. Bliss v. Commonwealth, 2
Ky. (Litt.) 90, 91-92 (1822).
140. See, e.g., Strickland v. State, 137 Ga. 1,2,72 S.E. 260, 261 (1911)
("This ruling [Bliss] has not
been followed but severely criticized. The decisions are practically unanimous to
the contrary."); Salina v. Blaksley, 72 Kan. 230, 231, 83 P. 619, 620
(1905) ("[T]his decision [Bliss]...
has never been followed.").
141. Hill v. State, 53 Ga.
472 (1874); State v. Wilforth, 74 Mo. 528 (1881).
142. Isaiah v. State 176
Ala. 27, 58 So. 53 (1911).
143. People v. Wells, 156
P.2d 979 (Cal. 1945).
144. Jackson v. State, 68
So. 2d 850 (Ala. 1953); People v. Garcia, 218 P.2d 837 (Cal. 1950); City of
Akron v. Williams, 177 N.E.2d 802 (Ohio 1960); State v. Robinson, 343 P.2d 886
(Ore 1959); State v. Tully, 198 Wash. 605, 89 P.2d 517 (1939).
145. State v. Johnson, 76
S.C. 39, 56 S.E. 544 (1907): McCollum v. City of Cincinnati, 51 Ohio App. 67,
199 N.E. 603 (1935).
146. Davis v. State, 146 So.
2d 892 (Fla. 1962): Strickland v. State, 137 Ga. 1, 72 S.E. 260 (1911);
Matthews v. State, 148 N.E.2d 334 (Ind. 1958); Burton v. Sills, 53 N.J. 86, 248
A.2d 521 (1968), appeal dismissed,
394 U.S. 812 (1969).
147. 72 Kan. 230, 83 P. 619
(1905).
148. 181 N.C. 574, 107 S.E.
222 (1921).
149. Kan. Const. Bill of
Rights Sect. 4.
150. Salina v. Blaksley, 72 Kan.
230, 232, 83 P.619, 620 (1905).
151. Id. at 233, 83 P. at 620.
152. Id.; accord, State v. Bolin,
200 Kan. 369, 436 P.2d 978 (1968). It is also interesting to note that the
Kansas Supreme Court in Salina was of the opinion that the second amendment to
the federal constitution had the same meaning as the Kansas provision.
153. 181 N.C. 574, 107 S.E.
222 (1921).
154. N.C. Const. art. I,
Sect. 30.
155. State v. Kerner, 181
N.C. 574, 580, 107 S.E. 222, 225 (1921).
156. Id. at 578, 107 S.E. at 224.
157. Id. at 580, 107 S.E. at 225.
158. Id. at 580, 107 S.E. at 225.
159. Id. at 581, 107 S.E. at 225.
160. See, e.g., Rinzler v. Carson, 262 So. 2d 661 (Fla. 1972); In re Brickey,
8 Idaho 597, 70 P.609 (1902); Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737
(1971).
161. See e.g., McCollum v. City of Cincinnati, 51 Ohio App. 67, 199 N.E.
603 (Ct. App. 1935); Mowels v. State, 152 Tex. Crim. 135, 211 S.W.2d 213 (Crim.
App. 1948).