People v. Brown

• Decision Date: 27 February 1931
• Docket Number: No. 144.,144.
• Parties: PEOPLE v. BROWN.
• Court: Michigan Supreme Court

253 Mich. 537

235 N.W. 245

PEOPLE

v.BROWN.

No. 144.

Supreme Court of Michigan.

Feb. 27, 1931.

Error to Circuit Court, Jackson County; John Simpson, Judge.

Bernard Brown was convicted of carrying a dangerous weapon and of possessing and having in possession a blackjack, and sentenced as a fourth offender as on a plea of guilty, and he brings error.

Conviction by jury affirmed, and supplemental procedure and sentence reversed, and cause remanded.

Argued before the Entire Bench.

Frank L. Blackman, of Jackson, for appellant.

H. D. Boardman, Pros. Atty., and Owen Dudley, Asst. Pros. Atty., both of Jackson, for the People.

FEAD, J.

Defendant was convicted on both counts of an information charging him (a) with carrying a dangerous weapon, a blackjack, in an automobile, Comp. Laws 1929, § 16753, and (b) with possessing and having in possession a blackjack contrary to the provisions of section 3, Act No. 206, Pub. Acts 1929, Comp. Laws 1929, § 16751. He and another man had the blackjack and a rifle in an automobile. Supplemental information was filed, and, as on plea of guilty, he was convicted of being a fourth offender and sentenced to life imprisonment.

Defendant contends that the statutes under which he was convicted are invalid as contravening section 5, art. 2, of the State Constitution, which reads: ‘Sec. 5. Every person has a right to bear arms for the defense of himself and the state.’

The penalty for the violation of each statute is the same. Section 16751 includes the offense charged as under section 16753. If the former is constitutional, and latter must be, if and in so far as it is applicable to the weapon herein involved.

Section 16751 reads in part:

‘Sec. 3. It shall be unlawful within this state to manufacture, sell, offer for sale or possess any machine gun or firearm which can be fired more than sixteen (16) times without reloading or any muffler, silencer, or device for deadening or muffling the sound of a discharged firearm, or any bomb, or bomb shell, 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.

The statute applies to all persons except peace officers, certain manufacturers, military and licensed persons, and contains no limitations of place, time, purpose, or use. It prohibits the possession of the enumerated weapons by any one, other than an excepted person, in private as well as in public, in the home or elsewhere, and whatever the purpose and contemplated use.

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.

Some courts have been so impressed with the historical background that they have held that the constitutional protection covers the bearing of such arms only as are a customary part of the equipment of a militiaman; and in Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196,7 Ann. Cas. 925, it was decided that the Legislature may prohibit the bearing of arms anywhere except in a military organization provided for by law It is interesting to note that pistols and revolvers seem to have given these courts trouble in the application of the militia test. On the other hand, some courts, for various reasons, have extended the protection to weapons of all descriptions. The authorities cannot be reconciled except in respect of the proposition that, regardless of the basis of the right to bear arms, the state, nevertheless, has the police power to reasonably regulate it. 28 Harvard Law Review, 473;Aymette v. State, 2 Humph. (21 Tenn.) 154;Nunn v. State, 1 Ga. 243; Ex parte Thomas, 1 Okl. Cr. 210, 97 P. 260,20 L. R. A. (N. S.) 1007; 40 Cyc. p. 853; State v. Workman, 35 W. Va. 367, 14 S. E. 9,14 L. R. A. 600;Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138,32 L. R. A. 606;City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619,3 L. R. A. (N. S.) 168, 115 Am. St. Rep. 196,7 Ann. Cas. 925; Ex parte Thomas, 21 Okl. 770, 97 P. 260,20 L. R. A. (N. S.) 1007,17 Ann. Cas. 566;Strickland v. State, 137 Ga. 1, 72 S. E. 260,36 L. R. A. (N. S.) 115, Ann. Cas. 1913B, 323;State v. Keet, 269 Mo. 206, 190 S. W. 573, L. R. A. 1917C, 60; and notes.

When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens of Michigan and those of foreign birth who have declared their intention to become citizens, Comp. Laws 1929, § 629, is practically extinct and has been superseded by the National Guard and reserve organizations. If called to service, the arms are furnished by the state. Comp. Laws 1929, § 633. In times of peace, the militia, as such, is unarmed and the historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to ‘every person’ to bear arms for the ‘defense of himself’ as well as of the state. This includes the right of a foreigner to possess a revolver for the legitimate defense of his person and property, subject, however, to the valid exercise of the police power of the state to regulate the carrying of firearms. People v. Zerillo, 219 Mich. 635, 189 N. W. 927, 24 A. L. R. 1115.

Some arms, although they have a valid use for the protection of the state by organized and instructed soldiery in times of war or riot, are too dangerous to be kept in a settled community by individuals, and, in times of peace, find their use by bands of criminals and have legitimate employment only by guards and police. Some weapons are adapted and recognized by the common opinion of good citizens as proper for private defense of person and property. Others are the peculiar tools of the criminal. The police power of the state to preserve public safety and peace and to regulate the bearing of arms cannot fairly be restricted to the mere establishment of conditions under which all sorts of weapons may be privately possessed, but it may take account of the character and ordinary use of weapons and interdict those whose customary...