Strickland v. State

• Decision Date: 05 October 1911
• Citation: 72 S.E. 260,137 Ga. 1
• Parties: STRICKLAND v. STATE.
• Court: Georgia Supreme Court

72 S.E. 260

137 Ga. 1

STRICKLAND v. STATE.

Supreme Court of Georgia

October 5, 1911

Syllabus by the Court.

The act of the General Assembly, approved August 12, 1910 (Georgia Laws 1910, p. 134), entitled "An act to prohibit any person from having or carrying a revolver without first having obtained a license from the ordinary of the county of said state, in which the party resides, and to provide how said license may be obtained and a penalty prescribed for a violation of the same, and for other purposes," is not null and void because in violation of article 1, § 1. par 22, of the Constitution of the state, which provides "The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms shall be borne."

The act described in the preceding headnote is not violative of the right of the citizen, under article 8, § 2, of the Constitution of the United States, which declares: "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."

Certified Questions from Court of Appeals.

J. L Strickland was convicted of carrying a pistol without a license, and brought error to the Court of Appeals, which certified certain questions to the Supreme Court. Questions answered in the negative.

Atkinson J., dissenting.

R. W. Adamson and Napier & Maynard, for plaintiff in error.

C. E. Roop, Sol., for the State.

LUMPKIN J.

The first question propounded by the Court of Appeals is whether the act of August 12, 1910 (Acts 1910, p. 134), entitled "An act to prohibit any person from having or carrying about his person, in any county in the state of Georgia, any pistol or revolver without first having obtained a license from the ordinary of the county of said state, in which the party resides, and to provide how said license may be obtained and a penalty prescribed for a violation of the same, and for other purposes," is violative of article 1, § 1, par. 22, of the Constitution of this state, which provides that "the right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne."

1. First let us glance hastily at some of the English laws which antedated the introduction into the federal Constitution, and into the Constitutions of many of the states, of provisions in reference to bearing arms. As early as A. D. 1328, the statute of 2 Ed. III was passed, prohibiting persons "to go or ride armed by night or by day." And it has been declared that at common law riding or going about armed with dangerous or unusual weapons, to the terror of the people, was always indictable. Bish. Stat. Cr. (3d Ed.) §§ 783, 784; 4 Bl. Com. 149. By the act of 22 and 23 Car. II, c. 25, § 3, it was provided that no person who had not lands of the yearly value of pounds sterling>>>100, except certain specified persons, should be allowed to keep a gun, etc. James II arbitrarily disarmed the Protestant population, and quartered Catholic soldiers among the people. After the revolution which forced his abdication, in the first year of the reign of William and Mary, an act of Parliament was passed which recited certain abuses which had existed, and asserted certain rights and privileges. Among the grounds of complaint recited were the keeping of a standing army within the kingdom in time of peace, without the consent of Parliament, and 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." The Bill of Rights no doubt arose from the conduct of the Stuarts. It followed the Declaration of Rights, to which the Prince of Orange assented. Among other things, it declared that "the subjects which are Protestants may have arms for their defense, suitable to their condition and as allowed by law." This was not an unlimited conference of authority upon the Protestants, but only insured them rights under the law, which allowed persons of a certain rank and condition to have arms.

When the second amendment to the Constitution of the United States was adopted, it declared: "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." The third amendment also declared that no soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, except in the manner to be prescribed by law. Some similar provision has been incorporated in most of the state Constitutions. The language employed has not always been uniform. In some cases the preliminary reference to the importance of an efficient militia is made, and in some it is omitted, and there are other verbal differences. But the common element is the assurance of the right "to bear arms."

One of the first questions which was raised under the constitutional provisions on this subject was whether they were violated by laws which prohibited the carrying of concealed weapons. In the case of Bliss v. Commonwealth, 2 Litt. (Ky.) 90, 13 Am.Dec. 251, decided in 1822, the Supreme Court of Kentucky declared that an act to prevent the carrying of concealed weapons was unconstitutional and void as impairing the constitutional right to bear arms. This ruling has not been followed, but severely criticised. The decisions are practically unanimous to the contrary. Aymette v. State, 21 Tenn. (2 Humph.) 154; State v. Wilforth, 74 Mo. 528, 41 Am.Rep. 330; State v. Reid, 1 Ala. 612, 35 Am.Dec. 44; State v. Speller, 86 N.C. 697; State v. Mitchell, 3 Blackf. (Ind.) 229; Wright v. Commonwealth, 77 Pa. 470; State v. Jumel, 13 La. Ann. 399; State v. Buzzard, 4 Ark. 18; note to case of In re Brickey, 1 Am. & Eng. Ann.Cas. 55, 56; Ex parte Thomas, 21 Okl. 770, 97 P. 260, 20 L.R.A. (N. S.) 1007, 17 Am. & Eng. Ann.Cas. 566, and note.

In several states other statutes, regulatory in their nature, or prohibiting the carrying of certain kinds of weapons, or the carrying of weapons under certain circumstances and at certain places, have been upheld. In Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am.Rep. 8, the Supreme Court of Tennessee held that an act of the Legislature providing that it should not be lawful for any person to publicly or privately carry a dirk, sword-cane, Spanish stiletto, belt or pocket pistol, or revolver, was constitutional, except as to a revolver; that the word "revolver" might include a pistol adapted to the equipment of a militiaman or soldier, or a weapon not so adapted; that if the weapon designated by the statute was of the former character the absolute prohibition against it was too broad. In the opinion, in speaking of the arms in the use of which a soldier should be trained, at one place the word "repeater" was used. But it was evident that reference was made to army and navy repeaters of a character used in modern warfare, and not to every pistol which might repeat its fire. The pocket revolver was not meant, for in Page v. State, 3 Heisk. (Tenn.) 198, the court sustained a conviction for carrying such a pistol. In the opinion it was said that "the evidence fully establishes the fact that the pistol carried by Page was not an arm for war purposes, and therefore, under the ruling of this court in the case of Andrews v. State, decided at Jackson, it was a weapon, the carrying of which the Legislature could constitutionally prohibit." In Fife v. State, 31 Ark. 455, 25 Am.Rep. 556, an act was under consideration which provided that "any person who shall bear or carry any pistol of any kind whatever, or any dirk, butcher or bowie knife, or sword or spear in a cane, brass or metal knucks, or razor, as a weapon, shall be adjudged guilty of a misdemeanor," etc. The court in construing the act said: "From the company in which the pistol is placed, and the known public mischief which the Legislature intended by the act to prevent, it is manifest that the pistol intended to be proscribed is such as is usually carried in the pocket, or of a size to be concealed about the person, and used in private quarrels and brawls, and not such as is in ordinary use, and effective as a weapon of war, and useful and necessary for 'the common defense."' It was held that the act did not infringe the constitutional privilege of the citizen to bear arms.

In State v. Wilburn, 7 Baxt. (Tenn.) 57, 32 Am.Rep. 551, it was held that a law prohibiting the carrying of an army pistol, except in the hand, was not violative of the constitutional provision of that state in regard to the right of citizens to bear arms for the common defense, which also stated that the Legislature should have power, by law, to regulate the wearing of arms, with a view to prevent crime. In Haile v. State, 38 Ark. 564, 42 Am.Rep. 3, it was held that a statute prohibiting the carrying of army pistols by nonmilitary persons, except uncovered and in the hand, was not unconstitutional.

In West Virginia an act was passed which made it a misdemeanor to carry about the person any revolver or other pistol, dirk bowie knife, razor, slungshot, billy, metallic or other false knuckles, or any other dangerous or deadly weapon of like kind or character, or to sell or furnish any such weapon to one whom the furnisher knew, or had reason from his appearance or otherwise to believe, to be under the age of 21 years. Certain exceptions were made as to keeping or carrying a pistol about the dwelling of the owner, or from the place where it was purchased to his dwelling house, etc. In State v. Workman, 35 W.Va. 367, 14 S.E. 9, 14 L.R.A. 600, it was held that, whenever an act of the Legislature...