State v. Kerner

• Decision Date: 11 May 1921
• Docket Number: 345.
• Citation: 107 S.E. 222,181 N.C. 574
• Parties: STATE v. KERNER.
• Court: North Carolina Supreme Court

107 S.E. 222

181 N.C. 574

STATE v. KERNER.

No. 345.

Supreme Court of North Carolina

May 11, 1921

Appeal from Superior Court, Forsyth County; Webb, Judge.

Criminal prosecution against O. W. Kerner for carrying a pistol. From a judgment on a directed verdict for defendant, the State appeals. Affirmed.

The defendant was indicted on a first count for carrying a concealed weapon, and on the second count for carrying a pistol off his premises unconcealed. There was a special verdict which found the defendant was walking along the streets of the town of Kernersville in Forsyth county carrying some packages, when he was accosted, for the purpose of engaging him in a fight, by one Matthews; that in the course of this altercation he set down his packages and went to his place of business and there procured a pistol, which he brought back with him unconcealed to the scene of the altercation. Section 3, c. 317, Public Local Laws of 1919 prohibits the carrying of such weapons off his own premises by any one in Forsyth without a permit, even though it was not concealed. The court, being of the opinion that this statute was in conflict with the constitutional provision that "the right to bear arms shall not be infringed," directed a verdict of not guilty, and the state appealed.

The Attorney General and Frank Nash, Asst. Atty. Gen., for the State.

Jones & Clement, of Winston-Salem, for appellee.

CLARK C.J.

The second amendment to the United States Constitution, which provides that "the right of the people to keep and bear arms shall not be infringed," does not apply, for it has been repeatedly held by the United States Supreme Court and by this court, and indeed by all courts, that the first ten amendments to the United States Constitution are restrictions upon the federal authority and not upon the states. In re Briggs, 135 N.C. 120, 47 S.E. 403; State v Patterson, 134 N.C. 617, 47 S.E. 808; State v Newsom, 27 N.C. 250; U.S. v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; 9 Rose's Notes (Rev. Ed.) 152.

The Constitution of this state, section 24, art. 1, which is entitled, "Declaration of Rights," provides. "The right of the people to keep and bear arms shall not be infringed," adding, "nothing herein contained shall justify the practice of carrying concealed weapons or prevent the Legislature from enacting penal statutes against said practice." This exception indicates the extent to which the right of the people to bear arms can be restricted; that is, the Legislature can prohibit the carrying of concealed weapons but no further. This constitutional guaranty was construed in State v. Speller, 86 N.C. 697, in which it was held that the distinction was between the "right to keep and bear arms" and the "practice of carrying concealed weapons." The former is a sacred right based upon the experience of the ages in order that the people may be accustomed to bear arms and ready to use them for the protection of their liberties or their country when occasion serves. The provision against carrying them concealed was to prevent assassinations or advantages taken by the lawless; i. e., against the abuse of the privilege.

This provision of the Constitution has also been cited and discussed in State v. Reams, 121 N.C. 556, 27 S.E. 1004; and in State v. Boone, 132 N.C. 1108, 44 S.E. 595.

Chapter 317, Public Local Laws 1919, applicable only to Forsyth county, provides: Section 1 prohibits the carrying of concealed weapons; section 2 requires a permit; and section 3 provides:

"If any person, except when on his own premises, shall carry any weapon [[named in section 1] without a permit, as provided in section 2, * * * he shall be guilty of a misdemeanor, and punished as provided in section 1 * * * for carrying a concealed weapon."

The weapons named in section 1 include pistols, and the question as presented is whether this conflicts with the constitutional provisions above cited.

The other weapons recited in section 1 of this act, besides "pistol," are "bowie knife, dirk, dagger, slung-shot, loaded cane, brass, iron or metallic knucks or razor or other deadly weapon of like kind." None of these except "pistol" can be construed as coming within the meaning of the word "arms" used in the constitutional guaranty of the right to bear arms. We are of the opinion, however, that "pistol" ex vi termini is properly included within the word "arms," and that the right to bear such arms cannot be infringed. The historical use of pistols as "arms" of offense and defense is beyond controversy.

It is true that the invention of guns with a carrying range of probably 100 miles, submarines, deadly gases, and of airplanes carrying bombs and other modern devices, have much reduced the importance of the pistol in warfare except at close range. But the ordinary private citizen, whose right to carry arms cannot be infringed upon, is not likely to purchase these expensive and most modern devices just named. To him the rifle, the musket, the shotgun, and the pistol are about the only arms which he could be expected to "bear," and his right to do this is that which is guaranteed by the Constitution. To deprive him of bearing any of these arms is to infringe upon the right guaranteed to him by the Constitution.

It would be mockery to say that the Constitution intended to guarantee him the right to practice dropping bombs from a flying machine, to operate a cannon throwing missiles perhaps for a hundred miles or more, or to practice in the use of deadly gases. In Cooley, Con. Lims., the history and the intention of this provision is thus set forth:

"Among the other safeguards to liberty should be mentioned the right of the people to keep and bear arms. A standing army is peculiarly obnoxious in any free government, and the jealousy of such an army has at times been so strongly manifested in England as to lead to the belief that even though recruited from among themselves, it was more dreaded by the people as an instrument of oppression than a tyrannical monarch or any foreign power. So impatient did the English people become of the very army that liberated them from the tyranny of James II that they demanded its reduction even before the liberation became complete; and to this day the British Parliament render a standing army practically impossible by only passing a mutiny act from session to session. The alternative to a standing army is 'a well-regulated militia'; but this cannot exist unless the people are trained to bearing arms. The federal and state Constitutions therefore provide that the right of the people to bear arms shall not be infringed."

We know that in the past this privilege was guaranteed for the sacred purpose of enabling the people to protect themselves against invasions of their liberties. Had not the people of the Colonies been accustomed to bear arms, and acquire effective skill in their use, the scene at Lexington in 1775 would have had a different result, and when "the embattled farmers fired the shot that was heard around the world." it would have been fired in vain. Had not the common people, the rank and file, those who "bore the burden of the battle" during our great Revolution, been accustomed to the use of arms, the victories for liberty would not have been won and American independence would have been an impossibility.

If our pioneers had not been accustomed to the use of arms, the Indians could not have been driven back, and the French, and later the British, would have obtained possession of the valley of the Ohio and the Mississippi. If the frontiersmen had not been good riflemen, particularly the riflemen from Tennessee and Kentucky, the battle of New Orleans would...