Bliss v. Commonwealth
| Decision Date | 14 October 1822 |
| Citation | 12 Ky. 90 |
| Parties | Bliss v. Commonwealth. |
| Court | Kentucky Court of Appeals |
2. Not merely all legislative acts, which purport to take it away but all which diminish or impair it, as it existed when the constitution was formed, are void. 3.
3. The act to prevent persons from wearing concealed arms, is unconstitutional and void. 4.
This was an indictment founded on the act of the legislature of this state, " to prevent persons in this commonwealth from wearing concealed arms."
The act provides, that any person in this commonwealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when travelling on a journey, shall be fined in any sum not less than one hundred dollars; which may be recovered in any court having jurisdiction of like sums, by action of debt, or on presentment of a grand jury.
The indictment, in the words of the act, charges Bliss with having worn concealed as a weapon, a sword in a cane.
Bliss was found guilty of the charge, and a fine of one hundred dollars assessed by the jury, and judgment was thereon rendered by the court. To reverse that judgment, Bliss appealed to this court.
2. In argument the judgment was assailed by the counsel of Bliss, exclusively on the ground of the act, on which the indictment is founded, being in conflict with the twenty-third section of the tenth article of the constitution of this state.
That section provides, " that the right of the citizens to bear arms in defense of themselves and the state, shall not be questioned."
The provision contained in this section, perhaps, is as well calculated to secure to the citizens the right to bear arms in defense of themselves and the state, as any that could have been adopted by the makers of the constitution. If the right be assailed, immaterial through what medium, whether by an act of the legislature or in any other form, it is equally opposed to the comprehensive import of the section. The legislature is nowhere expressly mentioned in the section; but the language employed is general, without containing any expression restricting its import to any particular department of government; and in the twenty-eighth section of the same article of the constitution, it is expressly declared, " that every thing in that article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to the constitution, shall be void."
The right of the citizens to bear arms in defence of themselves and the state, must be preserved entire.
It was not, however, contended by the attorney for the commonwealth, that it would be competent for the legislature, by the enactment of any law, to prevent the citizens from bearing arms either in defense of themselves or the state; but a distinction was taken between a law prohibiting the exercise of the right, and a law merely regulating the manner of exercising that right; and whilst the former was admitted to be incompatible with the constitution, it was insisted, that the latter is not so, and under that distinction, and by assigning the act in question a place in the latter description of laws, its consistency with the constitution was attempted to be maintained.
3. That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defense of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner descrbed in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form--it is the right to bear arms in defense of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.
Not merely all legislative acts, which purport to take it away; but all which diminish or impair it as it existed when the constitution was formed, are void.
If therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it...
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...of that instrument[.]Philip B. Kurland & Ralph Lerner, The Founders’ Constitution, Vol. V, p. 213 (1987) (quoting Bliss v. Commonwealth, 12 Little 90, 12 Ky. 90 (1822) ). The majority reflexively defers to the legislature's encroachment of fundamental constitutional rights, in derogation of......
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...generally Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Politics 191 (2006). 9. See Bliss v. Commonwealth, 12 Ky. 90, 2 Litt. 90, 91–92 (1822); State v. Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25 Mo. 128, 155 (1857); see also Simpson v. State, 13 ......
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