Bill of Rights Journal (Then called the "Bill of Right Review")
Volume 2 (1941): 31.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE RIGHT TO KEEP AND BEAR ARMS
BY GEORGE I. HAIGHTAll of us have heard of the right to keep and bear arms. What does it mean? Why did the framers of our Constitution write it in as one of the Amendments which constitute the Bill of Rights? Is the right an absolute one? Does it apply to the individual? Let us examine the background of the Amendment for light.
Our so-called Bill of Rights is found in the first ten Amendments to the Constitution¾Amendments which were made almost immediately upon the adoption of the Constitution itself and which had been promised by those who were urging the adoption of the Constitution. In fact, some of the states adopted the Constitution in complete reliance upon these promises and with the definite assurance that the Amendments would be made. When Madison introduced the Amendments in June 1789, in the House of Representatives, he stated that he was introducing them "as I consider myself bound in honor and in duty to do," thus making good on his previous pledges.
The right with which this article deals is found in the Second Amendment to the Constitution. It reads:
"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."
At the outset we note that it is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence; it is a limitation upon the central government.[1] It is one of those rights reserved to the States.[2] The amendment states that the right "shall not be infringed." This means simply 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 right it recognizes, to what is called, in The City of New York v. Miln, II Pet. 139, the 'powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,' not surrendered or restrained by the Constitution of the United States."[3]
The right referred to must be read in keeping with the context which indicates the purpose of the right, namely: to secure the maintenance of a well-regulated militia.[4]
To get at the reasons for the inclusion of this right in the first ten Amendments to the Constitution, we must place ourselves back in the times when they were debated and drafted. The frame of mind of the writers, their experiences, their fears, their suspicions, and their knowledge must be considered. The people of the Colonies feared the effect of a standing national army.[5] Why? [Page 32] The then recent history of Eng1and, their own internal difficulties, and the dangers from the Indians all shed light on the subject.
Thus in People v. Brown,[6] the Court said:
"It is generally recognized that the constitutional declaration, in both Federal and State Constitutions, of the right to bear arms had its origin in the fear of the American colonists of a standing army and its use to oppress the people, and in their attachment to a militia composed of all able-bodied men. Probably the necessity of self-protection in a frontier society also was a factor."
From early times in England, the landed proprietors were compelled to equip and maintain men-at-arms for military service when required by the government. This was the militia of its day.[7] These groups consisted of the tenants of the lords; in some instances, they were paid soldiers. Groups such as those, later, in the time of Charles IL constituted the nucleus of a Royal Guard maintained out of the royal revenues. This guard was the forerunner of the regular standing army and it became such under James II.
As early as A. D. 1328, the Statute of Northampton was passed. This declared that no man should "go nor ride armed, by night or by day, in fairs, markets, nor in the presence of the justices or other ministers, nor in no part elsewhere."[8]
During the reign of Charles II, restrictions were placed upon the general practice of carrying arms by the people. By the act of 22 & 23, Car II, Chapter 25, Section 3, it was provided that no person who has not lands of the yearly value of 100 pounds, other than the son and heir apparent of an esquire, or other person of higher degree, shall be allowed to keep a gun, etc. It is evident that under this Act, most of the people were prohibited from keeping arms.[9] Many of those who were permitted to keep and carry arms abused the privilege.
In the reign of James II, he disarmed the Protestant population and quartered his Catholic soldiers among the people. These abuses and practices produced the revolution by which James was compelled to abdicate the throne and flee.[10] After James had fled, William and Mary ascended the throne of England. In the first year of their reign, an Act of Parliament was passed reciting certain abuses which had theretofore existed, and asserting certain rights and privileges. Among the grounds of complaint recited were the keeping of a standing army in time of peace, without consent of Parliament, quartering soldiers contrary to law, and "causing several good subjects, being Protestants, to be disarmed at the time when Papists were both armed and employed contrary to law." In the declaration of rights which follows these complaints, it is-declared that "the subjects which are Protestants may have arms for their defense, suitable to their condition and as allowed by law." The privilege asserted here does not go beyond that provided by Charles II. "Allowed by law" means the right of persons of certain rank to [Page 33] have arms, the rank being determined by holdings of land, as previously referred to. The majority were still denied the right.
The evil produced by disarming the people in the time of James was that the King, by means of a standing army, quartered among the people, was able to overawe them and compel them to submit to the most arbitrary, cruel, and illegal measures. If the people had been allowed to retain their arms, they would have been able, by a just and proper resistance to those oppressive measures, either to have caused the ruler to respect their rights, or to surrender the government as he was subsequently required to do. The people would have been able to resist the payment of excessive fines, unjust taxes, and the infliction of illegal and cruel punishments. The right to keep arms, as the declaration of rights indicated, meant that the people, as a collective body, could rise up in resistance; it did not mean that they, as individuals, were entitled to bear arms in order to settle their private quarrels and feuds. It was meant to correct the injustices of the Government, and not of individuals¾ that is, wrongs of a public nature and not of a private character.[11]
It was in reference to the foregoing matters of history, which were fresh in the minds of the colonists, that the Second Amendment owed its origin. The fear of a standing army is manifested in the Declaration of Independence, where, among the list of grievances, we find that "He has kept among us, in times of peace, standing armies without the consent of our legislature. He has affected to render the military independent of, and superior to, the civil power." In the Colonies, with a view to protection of life, property, and the state, every man of military age and capacity was required to keep arms for military service. An illustration of this requirement is found in a Massachusetts law enacted in 1649, which provided that the men of the infantry (which consisted of pikemen and musketeers) should be armed with a pike, corselet, head-piece, sword, and knapsack. "The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet,- nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two thirds of each company should be musketeers."[12] The detail of this statutory requirement indicates the importance attached to the subject by the Colonists.
Those people, and their descendants, knew of the English objection to standing armies; and that same objection, coupled with the need for protection against Indians and other enemies, dictated the Second Amendment. When the Second Amendment is read in connection with Section Eight of the First Article of the Constitution, it is apparent that the Colonies shared the suspicion which their English ancestors bad shown to a standing army and their preference for locally organized militia.[13] The writings of Hamilton in 1787 [14] and of Madison in 1788 [15] indicate conclusively that the subject of [Page 34] a standing army was a very. sore spot among the Colonists. In arguing for a national standing army, as a necessity for the effectiveness of the government at home and abroad, Madison pointed out that the combined militia forces of the states would be far superior numerically than the army, and that this would prevent those in control of the affairs of government from embarking on a reign of despotism and tyranny. He stated that
"Besides the advantages of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several Kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves who could collect the national will and direct the national force, and of officers appointed out of the militia, by those governments, and attached to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it."[16]
The language "to keep and bear arms" has reference to that background,[17] and the words have reference only to war, and possibly also to insurrections wherein the forms of war are so far as practicable observed . . . "[18] I The single individual or the unorganized crowd, in carrying weapons, is not spoken of or thought of as "bearing arms"¾ the phrase suggests ideas of a military nature.[19] "A man in the pursuit of deer, elk and buffalo might carry his rifle every day for forty years and yet it would never be said of him that be has borne arms . . . ."[20] The Constitutional Amendment is to insure the safety of the people, their "laws and liberty" against assaults from any source, but not to give individuals means of aggression upon the rights of others.[21] The very words of the Amendment bear out this thought-"a Militia, being necessary to the security of a free state" The Amendment was demanded by the states as a safeguard against a future usurpation of military power by the National Government. It insures to the states a means of resistance in case. Congress should ever attempt to oppress them by using federal troops.[22]
More than forty years after the adoption of the Bill of Rights, Story wrote strongly in favor of the local militia and against the maintenance of a standing army.[23] He said:
"The right of the citizen to keep and bear arms has justly been considered as the Palladium of the liberties of the Republic; since it offers a strong moral check against the usurpation and arbitrary powers of rules; and [Page 35] will, generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
The right to keep and bear arms was not a common-law right such as the right of trial by jury. This is evidenced by the Statute of Northampton (1328)[24] which became the common law of the American Colonies.[25]
"The keeping and bearing of arms, therefore, which at the date of the Amendment was intended to be protected as a popular right, was not such as the common law condemned, but was such a keeping and bearing as the public liberty and its preservation commended as lawful, and worthy of protection."[26]
In 1868, the well-known authority upon constitutional law, judge Cooley, wrote concerning the Second Amendment that there was not likely to be much occasion for an examination by the Courts of the question whether the legislature had the power to regulate the right to keep and bear arms. Up to that time there had been little occasion; however, in recent times, particularly during the past twenty-five years, the situation has changed. Part of this was due to matters referred to by Emery,[27] wherein he states:
"The greater deadliness of small fire arms easily carried upon the person, the alarming frequency of homicides and felonious assaults with such arms, the evolution of a distinct class of criminals known as 'gun men' from their ready use of such weapons for criminal purposes, are now pressing home the question of the reason scope, and limitation of the constitutional guaranty of the right to keep and bear arms . . . ."
Less than a century ago the arms of the pioneer were carried openly, the rifle on his shoulder, his hunting knife on his belt. Since then deadly weapons have been devised small enough to be carried effectively concealed in the ordinary pocket.
"The practice of carrying such weapons concealed is appreciated and indulged in mainly by the enemies of social order."[28]
Since it is definitely settled that the Second Amendment is a limitation upon the National Government only, and has no direct reference to state legislatures,[29] the question must largely be considered with regard to the provisions of the state constitutions and state statutes. "To hold that a state legislature could pass no law upon this subject, by which to preserve the public peace and protect citizens from the terror which a wanton and unusual exhibition of arms might produce, or their lives from being endangered by desperadoes with concealed arms, would be to pervert a great political right to the worst of purposes, and make it a social evil, of infinitely greater extent to society, than would result from abandoning the right itself."[30]
Statutes forbidding the carrying of concealed and dangerous weapons are now universally upheld as being a proper exercise of the police power in [Page 36] the interest of public order and safety, and the constitutional guaranty is generally construed to refer to such arms only as are adapted to the common defense and as used in civilized warfare. For instance, as stated by Mr. Justice McReynolds in 1938:
"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."[31]
and as stated in Bishop[32]:
"If we look to this question in the light of judicial reason, without the aid of specific authority, we shall be led to the conclusion that the provision protects only the right to keep such arms as are used for purposes of war., in distinction from those which are employed in quarrels and brawls and fights between maddened individuals, since such, only, are properly known by the name of arms, and such only, are adapted to promote the security of a free state. In like manner, the right to bear arms refers merely to the military way of using them, not to their use in bravado and affray."
Therefore, it is not an invasion of the right to keep and bear arms, to prohibit the carrying of a dirk, sword cane, or any similar weapon which is not used for military purposes.[33] Some cases have held that "arms" refers to any arms, irrespective of whether or not they are commonly used for military purposes.[34] In this connection it is interesting to note the strong utterances of the Court in Hill v. State,[35] where the defendant was charged with carrying a pistol into a court of justice while it was in session. The court said in reference to the words of the Second Amendment:
"It is to secure the existence of a well regulated militia; that, by the express words of the clause, was the object of it, and I have always been at a loss to follow the line of thought that extends the guaranty to the right to carry pistols, dirks, Bowie-knives, and those other weapons of like character which, as all admit, are the greatest nuisances of our day. It is in my judgment a perversion of the meaning of the word arms as used in the phrase 'the right to keep and bear an-ns', to treat it as including weapons of this character. The preamble of the clause is the key to the meaning of it. The word 'arms', evidently means the arms of a militiaman, the weapons ordinarily used in battle, to-wit: guns of every kind, swords, bayonets, horseman's pistols, etc. The very words bear arms, had then and now have a technical meaning. The 'arms bearing' part of a people, were its men fit for service on the field of battle. That country was 'armed' that had an army ready for fight. The call 'to arms' was a call to put on the habiliments of [Page 37] battle, and I greatly doubt if in any good author of those days, a use of the word arms when applied to a people, can be found, which includes pocket-pistols, dirks, sword-canes, toothpicks, Bowie-knives, and a host of other relics of past barbarism, or invention of modem savagery of like character. In what manner the right to keep and bear these pests of society, can encourage or secure the -necessity of a militia, and especially of a well regulated militia, I am not able to devine."[36]
Another court had the same questions before it and there said:
"If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and assassin. These weapons would be useless in war. They could not be employed advantageously in the common defense of citizens. The right to keep and bear them, is not, therefore, secured by the constitution."[37]
In United States v. Adains,[38] the defendant was charged with violating the National Firearms Act, which requires every importer, manufacturer and dealer in firearms to register and pay a certain annual tax. He demurred to the indictment and contended that the Act was unconstitutional in that it was not a revenue measure but an attempt to use police power which the national government did not possess, and that it violated the Second Amendment. The Court overruled the demurrer, saying:
"The second amendment to the Constitution, providing 'the right of the people to keep and bear arms, shall not be infringed' has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights."[39]
Most of the litigation which has occurred with regard to the right to keep and bear arms has arisen under provisions in state constitutions similar to those in the Second Amendment. This would seem to follow as a matter of course, since the Second Amendment does not grant the right but merely prohibits Congress from infringing it. It is now well settled that the right is not), unqualified, but is subject to the police power of the states. Laws are constitutional which prohibit individuals from carrying concealed weapons or from bearing arms except as members of law fully organized bodies.[40] The states, however, are not empowered to prohibit the bearing of arms under all circumstances. Despite the fact that only the Federal Government is restricted by the Constitutional Amendment, there is some implied limitation upon the states as well.
In Presser v. Illinois,[41] the plaintiff in error was convicted of violating the Military Code of Illinois, which prohibited "any body of men whatever . . . to associate themselves together as a military company or organization, or to drill or parade with arms in any [Page 38] city, or town, of this State, without the license of the Governor thereof . . ." The militia, troops of the United States, and students in military schools were exempt from the prohibition. The defendant belonged to a society called the Lehr and Wehr Verein, an Illinois corporation, which was organized for the purpose of improving the mental and bodily condition of its members. The society required that the members be instructed in military and gymnastic exercises. The defendant paraded at the head of a company of four hundred men who were armed with rifles and was consequently arrested. He was found guilty of violating the statute and appealed. His defense, in part, was the Second Amendment to the Constitution of the United States. The Court sustained the conviction holding that the right to keep and bear arms was not infringed by the statute, the Amendment being a limitation only upon Congress and the National Government and not upon the states. The court did, however, point out an implied limitation upon the states, insofar as the militia is concerned by saying:
"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, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question 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."[42]
Many of the cases which have arisen discuss the particular arms involved along the lines of military and nonmilitary use, as pointed out above. However, later cases tend to disregard such distinctions and rely upon the question of whether or not the weapon is deadly or dangerous. These latter cases are grounded on the police power of the state to prevent breaches of the peace. The weapon was not even deadly or dangerous in Commonwealth v. Murphy.[43] There the defendant and ten or twelve others paraded through the streets with ordinary breech-loading Springfield rifles which had been altered so-as to make them incapable of being fired. The defendant contended that the weapons were not firearms within the meaning of the statute. The Court held that they were:
"The purpose for which these alterations were made is not disclosed. They would not be obvious to the ordinary observer while the rifles were carried in the parade. So far as appearances went, it was a parade with firearms which were efficient for use. To the public eye, it was a parade in direct violation of the statute. The men who carried these weapons could not actually fire them, but it would be generally supposed that they could. . . . It was originally a firearm which was effective for use. The fact that it was disabled for use did not change its name."[44]
Many kinds of weapons have been involved in the cases, not only guns of various descriptions, including the sawed-off shotgun,[45] but the bowie [Page 39] knife,[46] blackjack,[47] fountain pen tear gas gun,[48] sword cane,[49] and loaded cane and walking can,[50] and a host of others referred to in various state statutes.
The manner of carrying weapons has also been involved in many of the cases; for instance, a pistol concealed in a basket placed in defendant's lap,[51] in a basket carried on the arm,[52] concealed in a sack carried under the arm,[53] concealed in a pocket of an automobile,[54] concealed behind the cushion of an automobile seat,[55] concealed in a locked hand satchel[56] concealed in a satchel placed on a passenger’s seat on a street car,[57] and in a handbag on the floor of an automobile.[58]
The Constitutional Amendment does not prohibit the states from enacting statutes designed to regulate firearms or other weapons. The particular weapon need not be concealed in order to fall within a valid regulation in most jurisdictions. In an early case, since overruled., the Kentucky Supreme Court in Bliss v. Commonwealth,[59] had held invalid a statute which prohibited carrying concealed weapons, such as a pocket pistol, dirk, large knife or sword cane, on the ground that it violated the Second Amendment. The Bliss case stands alone; no other state has followed its holding that the carrying of concealed weapons, of a non-military nature, cannot be prohibited. In Georgia, it was held that a statute was invalid which prohibited the carrying of such weapons if they were carried openly.[60] The same was held in Idaho.[61] These holdings are contrary to the law in most states, for in most the possession is regulated, as well as the carrying, the latter applying whether the weapon is concealed or not. To illustrate the kind of weapons regulated and the manner of regulation, reference is made to People v. Brown.[62] In that case there was involved a Michigan Statute[63] which provided as follows:
"It shall be unlawful within this State to manufacture, sell, offer for sale or possess, any machine gun, or fire arm which can be fired more than sixteen times without reloading, or any muffler, silencer, or device for retaining or muffling the sound of a discharged fire arm or any bomb or bombshell, blackjack, slung-shot, billy, metallic knuckles, sand club, sand bag or bludgeon, or any gas ejecting device, weapon, cartridge, container or contrivance designed or equipped for or capable of ejecting any gas which will either temporarily or permanently disable, incapacitate, injure or harm any person with whom it comes in contact . . ."
This statute applies to all persons except peace officers, certain manufac- [Page 40] turers, military and licensed persons; it contains no limitations of place, time, purpose, or use. It prohibits the possession of the enumerated weapons by anyone other than the excepted persons in private as well as in public, in the home or elsewhere, and whatever the purpose or contemplated use.
In Arkansas,[64] the Court held that to prohibit carrying war weapons, except on one’s own premises or when on a journey traveling through the country with baggage or when acting in aid of an officer, was an unwarranted restriction upon the constitutional right of citizens to keep and bear arms for the defense of themselves and the state. Under that case a large army-size six- shooter revolving pistol was held to be an army weapon. The Court there referred to Fife v. State,[65] and then said:
"And it was indicated in the opinion that the Legislature might, in the exercise of the police power of the State, regulate the mode of wearing war arms, and no doubt the occasions of wearing such arms may be to some extent regulated . . .
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege."[66]
To the same effect see Andrews v. State,[67] wherein the Court said:
"What then is he protected in the right to keep and thus use? Not everything that may be useful for offense or defense; but what may properly be included or understood under the title of arms, taken in connection with the fact that the citizen is to keep them, as a citizen. Such, then, as are found to make up the usual arms of the citizens of the country, and the use of which will properly train and render him efficient in defense of his own liberties., as well as of the State. Under this head, with a knowledge of the habits of our people, and of the arms in the use of which a soldier should be trained, we would hold, that the rifle of all descriptions, the shot gun, the musket, and repeater, are such arms; and that under the Constitution the right to keep such arms, can not be infringed or forbidden by the legislature. Their use, however, to be subordinated to such regulations and limitations as are or may be authorized by the law of the land, passed to subserve the general good, so as not to infringe the right secured and the necessary incidents to the exercise of such right. . . .
". . . Therefore, a man may well be prohibited from carrying his arms to church, or other public assemblage as the carrying them to such places is not an appropriate use of them, nor necessary in order to his familiarity with them, and his training and efficiency in their use".
The constitutional right to keep and bear arms for the common defense is not violated by a state statute prohibiting unauthorized bodies of men to associate together as a military organization or to drill and parade with arms in cities and towns.[68]
An examination of the various decisions, whether dealing with laws against carrying concealed weapons or with reg- [Page 41] ulations as to the manner of carrying certain, or the prohibition against carrying weapons of a particular character, will show that two general lines of reasoning have been employed in upholding such statutes: First, that such provisions are to be construed ,in the light of the origin of such constitutional declarations, of their connection with words declaratory of the necessity for an efficient militia, or for the common defense or the like, where they are used and in view of the general public purpose which such provisions were intended to subserve; and, Second, that the right to bear arms, like other rights of person and property, is to be construed in connection with the general police power of the state and is subject to legitimate regulation thereunder. Where a state constitution in terms provides in connection with the right to bear arms that the state may regulate this right or may regulate the manner of bearing arms, these words expressly recognize the police power in direct connection with the constitutional declaration as to the right to bear arms. But even where such expressions do not occur, it has been held that the different provisions of the Constitution must be construed together and that the declaration or preservation of certain rights is not to be segregated and treated as arbitrary, but in connection with the general police power of the state unless the language of the instrument itself should exclude such a construction. Thus, if the right to bear arms includes deadly weapons of every character and is absolutely arbitrary in its nature, it may well be argued, as it was in earlier days, that the citizen was granted the right to carry weapons or arms in the broadest meaning of that term, whenever, wherever, and however he pleased, and that any regulation, unless expressly provided for in the Constitution, was an infringement of that right. The ruling that the legislature may prohibit the carrying of concealed weapons essentially concedes the police power of regulation to some extent. If this be conceded, the question then becomes one as to whether the particular regulation involved is legitimate and reasonably within the police power or whether it is arbitrary and, under the name of regulation, amounts in effect to a deprivation of the constitutional right. In English v. State,[69] the court stated the need for regulation thus:
"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; that law being simply the domination of the strong and the violent over the weak and 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 or personal liberty; natural and personal liberty are exchanged, under the social compact of States, for civil liberty".
Surely no one will contend that children have a constitutional right to go [Page 42] to school with revolvers strapped around them, or that men and women have a right to go to church or sit in the courtrooms, or crowd around election precincts armed like desperadoes, and that this is beyond the power of the legislature to prevent. The decided cases and common sense dictate the folly of such a stand. There can be no question that the right to keep and bear arms has reference only to matters of common defense and relates to military affairs and not to private brawls.[70]
1.U. S. v. Cruikshank, 92 U. S. 542, 553 (1875).
2. Presser v. Illinois, 116 U. S. 252 (1886).
3. U. S. v. Cruikshank, 92 U. S. 542, 553 (1875).
4. MUNRO, THE CONSTITUTION OF THE UNITED STATES (1930) 138.
5. THE FEDERALIST (Bourne, 1901) XXIII to XXVIII and XLVI.
6. 253 Mich. 537, 539, 235 N. W. 245, 246 (1931).
7. Emery, The Constitutional Right to Keep and Bear Arms (1915) 28 HARV. L. REV. 473.
8. Strickland v. State, 137 Ga. 1, 2, 72 S. E. 260, 261 (1911).
9. Aymette v. State, 21 Tenn. 154, 156 (1840).
10. Ibid.
11. Aymette v. State, 21 Tenn. 154, 157 (1840); United States v. Adams, II F. Supp. 216 (D. C. Fla. 1936).
12. U. S. v. Miller, 307 U. S. 174, 180 (1939).
13. BURDICK, THE LAW OF THE AMERICAN CONSTITUTION (1922) 376.
14. THE FEDERALIST (Bourne, 1901) XXIII to XXVIII.
15. I THE FEDERALIST (Bourne, 1901) XLVI.
16. Ibid.
17. U. S. v. Miller, 307 U. S. 174 (1939).
18. BISHOP, STATUTORY CRIMES (3d ed. 1901) & 793. "
19. Aymette v. State, 21 Tenn. 154, 158 (i8p) Emery, loc. cit. supra note 7.
20. Aymette v. State,21 Tenn. 154, 161 (1840).
21. U. S. v. Miller, 307 U. S. 174 (1939).
22. MUNRO, loc. cit. supra note 4.
23. 3 STORY, COMMENTARIES ON THE CONSTITUTION ( 1833) 746-747.
24. See supra p. 32.
25. State v. Workman, 35 W. Va. 367, 372 (1891), and authorities therein cited.
26. Id. at 372-373.
27. Emery, loc. cit. supra note 7.
28. State v. Keet, 269 Mo. 206, 214, 190 S.W. 573, 576 (1916).
29. Presser v. Illinois, 116 U. S. 252 (1886) ; U. S. v. Cruikshank, 92 U. S.W (1875) ; see Miller v. Texas, 153 U. S. 535, 538 (1894).
30. Aymette v. State, 21 Tenn. x 54, 159 (1840) Haile v. State, 38 Ark. 564, 566 (1882).
31. U. S. v. Miller, 307 U. S. 174, 178 (1939).
32. 2 BISHOP, CRIMINAL LAW, § 124.
33. Aymette v. State, 21 Tenn. 154 (1840); Andrews v. State, 3 Heisk. 165 (Tenn. 1871); State v. Wilburn, 7 Baxt. 3 (Tenn. 1872); English v. State, 35 Tex. 473 (1872) ; State v. Workman, 35 W. Va. 367 0891).
34. Nunn v. State, I Ga. 243 (1846) ; State v. Duke, 42 Texas 455 (1875).
35. 53 Ga. 472 (1874).
36. Id. at 474-475.
37. Aymette v. State, 21 Tenn. 154, 158 (1840).
38. II F. Supp. 216 (D.C. Fla. 1935).
39. Id. at 218-219.
40. BURDICK, op. cit. supra note 12, at 375.
41. 116 U. S. 252 ( 1886).
42. Id. at 265.
43. 166 Mass. 171, 44 N. E. 138 (1896).
44. Id. at 173-174.
45. U.S. v. Miller, 307 U. S. 174 (1939).
46. Aymette v. State, 21 Tenn. 154 (1840).
47. People v. Brown, 253 Mich. 537, 235 N. W. 245 (1931).
48. People v. Anderson, 236 App. Div. 586, 26o N. Y. S. 329 (Ist Dept. 1932) ; Barboursville v. Taylor, 174 S. E. 485 (W. Va. 1934).
49. Hawaii v. Maga, 19 Haw. 157 (1908).
50. Note (1924) 3o A. L. R. 815.
51. State v. McManus, 89 N. C. 555 (1883).
52. Diffey v. State, 86 Ala. 66 (1888) ; Boles v. State, 86 Ga. 255 (1890).
53. Warren v. State, 6 Ga. App. 18, 64 S. E. III (1909).
54. State v. Brunson, 162 La. 902, III SO-321 (1929).
55. Wagner v. State, 8o Tex. Crim. Rep. 66, 188 S. W. 1001 (1916).
56. Warren v. State, 94 Ala. 79 (1891).
57. Willis v. State, 105 Ga. 633 (1898).
58. Welch v. State, 97 Tex. Crim. Rep. 617, 262 S. W. 485 (1924).
59. 2 Litt. 90 (Ken. 1822).
60. Nunn v. State, I Ga. 243 (1846) ; Stockdale v. State, 32 Ga. 225 (1861).
61. In re Brickey, 8 Idaho 597, 70 Pac. 609 (1902).
62. 293 Mich. 537, 235 N. W. 245 (1931).
63. Sec. 3, Act No. 206, Public Acts 1929, 3 Comp. Laws 1929, Sec. 16571.
64. Wilson v. State, 33 Ark. 557 (1878).
65. 31 Ark. 455 (1876)
66. Wilson v. State, 33 Ark. 557, 559-560 (1878).
67. 3 Heisk. 165, 179-180, 182 (Tenn. 1871).
68. Presser v. Illinois, 116 U. S. 252 (1886) ; Commonwealth v. Murphy, 106 Mass. 171 (1896).
69. 35 Tex. 472, 477 (1870.
70. Strickland v. State, 137 Ga. 1, 72 S. E. 260 (1911).
[The following quotes were also on page 42 after the article and the last footnote]
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"The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish." Mr. Justice Roberts, in Cantwell v. Connecticut, 310 U. S. 296.
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"No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the Power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions." Mr. Justice Roberts, in Cantwell v. Connecticut, 310 U. S. 296.
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"Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Mr. Justice Roberts, in Cantwell v. Connecticut, 310 U. S. 296.
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"The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied." Mr. Justice Roberts in Hague v. C. 1. 0., 307 U. S. 496.