English v. State. the State

• Citation: 35 Tex. 473
• Parties: WM. ENGLISH v. THE STATE. THE STATE v. G. W. CARTER. THE STATE v. WM. DANIEL.
• Decision Date: 01 January 1871
• Court: Supreme Court of Texas

35 Tex. 473

WM. ENGLISH

v.THE STATE.

THE STATE

v.G. W. CARTER.

THE STATE

v.WM. DANIEL.

Supreme Court of Texas.

1871.

1. The act of April 12, 1871, regulating and in certain cases prohibiting the carrying of pistols, dirks, and certain other deadly weapons, is not repugnant to the second amendment to the constitution of the United States, which provides that “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,” nor is the act in violation of the thirteenth section of the first article of the constitution of this state, which provides that “every person shall have the right to keep and bear arms in the lawful defense of himself or the state, under such regulations as the legislature may prescribe.”

2. The “arms” referred to in the second amendment to the United States constitution are the arms of a militiaman or soldier, and they do not comprise dirks, bowie knives, etc., regulated by the legislature in the act of April 12, 1871.

3. The powers of government are intended to operate upon the civil conduct of the citizen; and whatever conduct offends against public morals or public decency comes within the range of legislative authority.

These causes were appeals from the district courts of Marion, Kaufman and Van Zandt counties.

Some reference to the facts of the cases may add practical significance to the rulings. In English's case the offensive weapon was a pistol, and it was proved that he was in a state of intoxication while wearing it about in the city of Jefferson. He proved, in defense, that the pistol was not loaded at the times it was seen by the witnesses against him; and further, that it was out of repair, and he had taken it along with him to have it mended, as he expected soon to go to a neighboring county after his mother, and wished to carry the pistol with him.

The charge against Daniels was going “into a religious assembly, having about his person a butcher knife.” The state's witnesses proved that they saw the defendant in church on the occasion in question, and that the handle of a butcher knife was sticking out above the waistband of his breeches, and between the skirts of his frock coat. They saw nothing but the handle. The court below charged that the handle raised a presumption of a blade.

No transcript in Carter's case has come to the hands of the reporter, nor any brief in his behalf, or in behalf of Daniels.

R. A. Reeves, for English.

William Alexander, Attorney General, for the state.

WALKER, J.

In each of the above entitled cases the constitutionality of the act of April 12, 1871, regulating, and in certain cases prohibiting, the carrying of deadly weapons, is called in question, and this opinion will dispose of each of the cases. It is insisted that the act referred to is repugnant to the second article of the amendments to the constitution of the United States.

The article reads as follows: “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.” Arms of what kind? Certainly such as are useful and proper to an armed militia. The deadly weapons spoken of in the statute are pistols, dirks, daggers, slungshots, swordcanes, spears, brass-knuckles and bowie knives. Can it be understood that these were contemplated by the framers of our bill of rights? Most of them are the wicked devices of modern craft. Mr. Bishop, in his work on Criminal Law, vol. 2, par. 124, treats this article of the constitution in the following manner:

“The constitution of the United States provides that ‘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.’ This provision is found among the amendments; and, though most of the amendments are restrictions on the general government alone, not on the states, this one seems to be of a nature to bind both the state and national legislatures, and doubtless it does.

As to its interpretation, 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 broils, 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. Still the Georgia tribunal seems to have held that a statute prohibiting the open wearing of arms upon the person violates this provision of the constitution, though a statute against the wearing of the arms concealed does not. And, in accord with the latter branch of this Georgia doctrine, the Louisiana court has laid it down that the statute against carrying concealed weapons does not infringe the constitutional right of the people to keep and bear arms; for this statute is a measure of police, prohibiting only a particular mode of bearing arms, found dangerous to the community.”

Mr. Bishop goes on to remark that the same provision is found in the constitutions of several of the states, and refers to various authorities-- Owen v. The State, 31 Ala. 387, and Cochrane v. The State, 24 Tex. 394. We do not think the latter case is aptly cited; the question was not fairly before the court in Cochrane v. The State. Mr. Bishop says: “The doctrine as laid down in The State v. Buzzard, 4 Ark. 18, is the doctrine generally approved by the American authorities,” and cites Aymette v. The State, 2 Humph, 154; The State v. Reid, 1 Ala. 612; The State v. Mitchell, 3 Blackf. 229; The State v. Newson, 5 Ired. 250. Blackstone says, the offense of riding or going around with dangerous or unusual weapons is a crime against the public peace, by terrifying the good people of the land. And it was an offense prohibited by the statute of Northampton (2 Edward III, c. 3), upon pain of forfeiture of the arms and imprisonment during the king's pleasure. In like manner as by the laws of Solon, every Athenian was fineable who walked about the city in armor. This was also an offense by the early common law of England. See Knight's Case, 3 Mod. 117.

To refer the deadly devices and instruments called in the statute ““deadly weapons,” to the proper or necessary arms of a “well-regulated militia,” is simply ridiculous. No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the constitution of the United States, as to make it cover and protect that pernicious vice, from which so many murders,...