# State v. Buzzard/Separate Ringo

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* Separate Opinions Ringo Dickinson Lacy
​By RINGO, C.J.
This is a prosecution based upon the 13th section of the first Article, Division VIII., Ch. 44, Rev. St. Ark., p. 280, which declares, that "every person who shall wear any pistol, dirk, butcher or large knife, or a sword in a cane, concealed as a weapon, unless upon a journey, shall be adjudged guilty of a misdemeanor." The indictment was quashed, and the defendant ordered to be discharged by the Circuit Court; and the State has, by appeal, brought the case before this Court, to revise said decision.
No question as to the sufficiency of the indictment, in point of form, has been raised or argued at the bar, and in this respect it is believed to be substantially good. But the appellee insists that the provisions of the statute above quoted, upon which the prosecution is founded,
​are in conflict with and repugnant to the second article of the amendments of the constitution of the United States, which ordains 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." The attorney for the State contends that the enactment in question is not prohibited by any fundamental law of the land, and that the Legislature of this State possesses legitimately the power of regulating by law the use of such weapons as are mentioned therein, as that body has assummed to do by said enactment.
In order to arrive at a just conclusion in regard to the question under consideration, it may in the first instance be necessary to recur to some of the primary objects for which the government was instituted, and concisely state what are understood to be its principal obligations, not only in reference to the aggregate community, but also to each individual member of which it is composed; and then consider the extent of its powers, and how far they are limited by this article in the federal constitution.
Among the objects for which all free governments are instituted, may be enumerated the increase of security afforded to the individual members thereof for the enjoyment of their private rights, the preservation of peace and domestic tranquillity, the administration of justice by public authority, and the advancement of the general interests or welfare of the whole community. In addition to which, it is designed that adequate security shall be provided by law for the most perfect enjoyment of these blessings. Consequently, where the people, in forming the government, have not by some fundamental law made such provision as, in every variety of circumstances which may exist, shall be found necessary to the attainment of every object for which it was established, nor expressly, or by necessary or reasonable implication, prohibited the Legislature from supplying by law such omission, the obligation to do so is conceived to be unquestionable; otherwise, the people could not, through the instrumentality and agency of the government, possess and enjoy, in the greatest degree or they are capable, all of the blessings and advantages which, by its institution, they intended to insure to themselves and posterity.
It results, therefore, that the legislative department, if not so ​inhibited, possesses adequate powers to provide, by laws adapted to the purpose, the means by which those who compose the community shall aggregately and individually be secured in the full and complete enjoyment. of all such benefits as may be derived from the operation or influence of the government. And in the execution of this power, and the performance of the high and important obligations devolved upon it, the Legislature possesses, and must necessarily exercise a discretion as to the means best calculated to attain the object, which in the nature of things is, and must remain, without control, provided no right vested by the constitution, or other authority paramount to that of the Legislature, be by their enactment infringed or divested. Now, if I have not wholly mistaken the objects for which the government was instituted, the trusts confided to it, and the powers with which it is invested, those who subjected themselves to its operation, must, in consideration of the advantages which they trusted and believed would result from it to themselves and posterity, have voluntarily surrendered or subjected to the control of the public authorities provided for the administration of the government many if not all of the rights of which, independent of all government, they would have been possessed without any restriction whatever. For instance, the right of any individual to redress, according to the dictates of his own will or caprice, any injury inflicted upon his personal or private rights by another, is surrendered; and the right of determining not only what his rights are, but also whether they have been invaded, and the kind and measure of redress to which he is entitled, are all referred to the arbitrament of the law. Also the natural right of speech must remain without restraint, if it were not surrendered and subjected to legal control upon the institution of government; yet every one is aware that such limitations as have been found necessary to protect the character and secure the rights of others, as well as to preserve good order and the public peace, have been imposed upon it by law, without any question as to the power of the government to enforce such restrictions. So the liberty of the press, which is based upon the right of speech, is to the like extent subject to legal control. So the right of migration and transmigration, or of every individual to pass from place to place, according to his own free will and pleasure, ​when and where he chose, acknowledged no restraint until surrendered upon the institution of government, when it became subject to such regulations as might he found necessary to prevent its exercise from operating prejudicially upon the private right's of others, or to the general interests of the community. These rights are believed to be as essential to the enjoyment of well regulated liberty, and as fully guarded against infringement by the government, as the right to keep and bear arms. Their use, if subject to no legal regulation or limitation whatever, would tend to unhinge society, and most probably soon cause it either to fall back to its natural state, or seek refuge and security from the disorders and suffering incident to such licensed invasion of the rights of others, in some arbitrary or despotic form of government; while their unrestrained exercise, so far from promoting, would surely defeat every object for which the government was formed. And if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy.
Suppose the constitutional existence of such immunity in favor of the right to keep and bear arms as is urged by the appellee be admitted. By what legal right can a person accused of crime be disarmed? Does the simple accusation, while the law regards the accused as innocent, operate as a forfeiture of the right? If so, what law attaches to it this consequence? Persons accused of crime, upon their arrest, have constantly been divested of their arms, without the legality of the act having ever been questioned. Yet, upon the hypothesis assumed in the argument for the appellee, the act of disarming them must have been illegal, and those concerned in it trespassers, the constitution not limiting the right to such only as are free from such accusation. Nor could the argument of necessity or expediency justify one person in depriving another of the full enjoyment of a right reserved. and secured to him by the constitution. Again, the term "arms," in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively, and in the most restricted sense, includes guns or firearms of every description, as well as powder, lead, and flints, and such other, things as are necessarily used in loading and discharging them, ​so as to render them effective as instruments of offence or defence, and without which their efficiency for these purposes would be greatly diminished, if not destroyed. By what authority, then, (if powder is comprehended by the term "arms,") can a person be prohibited from keeping, at such place and in such situation as he may desire, upon his own premises, any amount of powder he may think proper, however much it may endanger the lives or property of others? Certainly none. And yet, the right of inhibiting by law the keeping of powder in places where its explosion would endanger the lives or property of others, has been constantly asserted and enforced, without question as to the legal right or power of imposing such restriction. Still no such prohibition can be legally made or enforced, if the principles asserted in the argument for the appellee be true. Other instances, in which the right to keep and bear arms has been either directly or indirectly subjected to legal regulations and restrictions, without any question as to the power so exercised, could be referred to; but that just mentioned is esteemed sufficient to prove, that in the judgment of the people of the United States, the right in question possesses no such immunity as exempts it from all legal regulation and control.
And here it may not be without utility to inquire for what object the right to keep and bear arms is retained exempt from all legal regulation or control, if in fact it has been so retained, as urged in the argument for the appellee. Is it to enable each member of the community to protect and defend by individual force his private rights against every illegal invasion, or to obtain redress in like manner for injuries thereto committed by persons acting contrary to law? Certainly not; because, according to the fundamental principles of government, such rights are created, limited, and defined by law, or retained subject ta be regulated and controlled thereby; and the laws alone are and must be regarded as securing to every individual the quiet enjoyment of every right with which he is invested; thus affording to all persons, through the agency of the public authorities to whom their administration and execution are confided, ample redress for every violation thereof. And to these authorities every person is, in most cases, bound to resort, for the security of his private rights, as well as the redress of all injuries thereto. Hence it has become a maxim in ​all well organized governments, that there is no wrong without a remedy, or, in other language, that the law furnishes to each individual some adequate remedy for every invasion of, or injury to, his private rights. Such legal remedies, however, can only be enforced by public authority; yet, from the very institution of the government, every individual is considered as freely assenting to assist in maintaining the laws and executing their mandates. Consequently, the public authorities have a right to demand their aid in enforcing legal remedies, whether they so operate as to prevent or redress injuries, apprehended or suffered. And this obligation of the government to protect every individual in the quiet and peaceable enjoyment of his private rights, and afford him redress for all injuries thereto, including also the power of coercing by public authority the performance of all legal obligations, constitutes not only the most perfect and ample security to individuals for the enjoyment of their private rights, but is believed to have formed one of the great objects for which the government was instituted. Now, is it reasonable to suppose that either those who proposed or those who adopted the article under consideration, doubted the capacity or disposition of the government to discharge every obligation devolved upon it? Surely not. And therefore it is conceived that the right in question could not have been so retained and secures with any view to the protection or vindication of such rights of individuals as are merely private.
Another great object contemplated by the people in the institution of the government, was to establish a more perfect union, by creating a community of interests and a common concert of action in the different members of the State, by which their common interests could be better promoted and defended. And, therefore, the obligation of making, from time to time, such legal provision as shall be found necessary to advance their common or public interests, or to protect, preserve, and defend the free institutions they had established, was imposed upon the legislative department of the government. And in order to perform this important trust, there was necessarily confided to it a discretion as to the means best adapted to the object, over which the judiciary has no control, unless the enactment be repugnant to some law of paramount obligation.
​But surely if the government does not possess the power of so regulating and controlling, by law, the acts of individuals, as to protect the private rights of others, preserve domestic tranquillity, peace and order, promote the common interests of the community, provide for the common defence of the country, and the preservation of her free institutions, established for the common benefit of the people, and, in a great measure, committed to its fostering care, its powers are inadequate to the performance of the obligations imposed upon it. Such, however, is not believed to be the case, as the government possesses, in my opinion, ample power to inhibit, by law, all such acts and practices of individuals, as affect, injuriously, the private rights of others, tend to disturb domestic tranquillity, or the peace and good order of society, militate against the common interests, impair the means of common defence, or sap the free institutions of the country; and to enforce the observance of such laws by adequate penalties, the character and quantum of which, in most respects, depend exclusively upon the will and judgment of the legislature.
If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which the right is supposed to have been retained, is stated. That object could not have been to protect or redress by individual force, such rights as are merely private and individual, as has been already, it is believed, sufficiently shown: consequently, the object must have been to provide an additional security for the public liberty and the free institutions of the State, as no other important object is perceived, which the reservation of such right could have been designed to effect. Besides which, the language used appears to indicate, distinctly, that this, and this alone, was the object for which the article under consideration was adopted. And it is equally apparent, that a well regulated militia was considered by the people as the best security a free state could have, or at least, the best within their power to provide. But it was also well understood, that the militia, without arms, however well disposed, might be unable to resist, successfully, the efforts of those who should conspire to overthrow the established institutions of the country, or subjugate their common ​liberties; and therefore, to guard most effectually against such consequences, and enable the militia to discharge this most important trust, so reposed in them, and for this purpose only, it is conceived the right to keep and bear arms was retained, and the power which, without such reservation, would have been vested in the government, to prohibit, by law, their keeping and bearing arms for any purpose whatever, was so far limited or withdrawn: which conclusion derives additional support from the well known fact, that the practice of maintaining a large standing army in times of peace, had been denounced and repudiated by the people of the United States, as an institution dangerous to civil liberty and a free State, which produced, at once, the necessity of providing some adequate means for the security and defence of the State, more congenial to civil liberty and republican government. And it is confidently believed that the people designed and expected to accomplish this object, by the adoption of the article under consideration, which would forever invest them with a legal right to keep and bear arms for that purpose; but it surely was not or designed to operate as an immunity to those, who should so keep bear their arms as to injure or endanger the private rights of others, or in any manner prejudice the common interests of society.
The court of appeals of the State of Kentucky, in the case of Bliss vs. the Commonwealth, 2 Littell, 90, and the argument of this case for the appellee, if I have not misapprehended their premises and reasoning, both assume that the right to keep and bear arms was adopted as well for the purpose of enabling individuals to defend and redress, by their own arms, injuries threatened or suffered in respect to their personal or private rights, as for the security of the State, and is not subject to any legal regulation, restriction, or control whatever; and that, by virtue of it, every person in the community possesses a privilege or immunity, by virtue of which he may keep and bear arms of every description, at all times, in every place, and in any manner, according to his own free will or caprice.
However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious; and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more ​mature and careful investigation, as to the object for which the right was retained, their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity, and the upright and independent administration of the government, but also to the established institution of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary.
I cannot, therefore, indulge the opinion, that they were not distinctly foreseen by those who recommended, as well as those who adopted the article under consideration, or that they intended to incorporate into the charter of their civil policy, a principle pregnant with such dangers. Besides, it cannot have escaped the observation of any person of intelligence, whose mind has been directed to the subject, that to resist, or oppose by force, the constituted public authorities of the State acting in pursuance of law, in the discharge of any public duty enjoined upon them, must, according to the extent and success of such resistance or opposition, either produce some revolution in the government itself, or subject those who so act to such consequences as are denounced against them by law. Suppose a portion of the community consider their private rights invaded by some act or exercise of authority, on the part of the government, which they consider as unauthorized, can they, by virtue of any legal right with which they are invested, either prevent or redress such injury by private force? In my opinion they cannot; their private rights being in this, as in most other cases, committed, as it were, to the care and custody of the law; and to it, so long as our civil liberties and republican institutions remain unimpaired, they are bound to look for protection as well as redress; both of which the government is under a positive obligation to provide.
I also deem it proper to remark here, that, in my opinion, the provisions contained in the article under consideration, were designed to furnish the people of the United States precisely such security for the preservation and perpetuation of their civil liberty and republican institutions, as it was the object of those who framed the constitution of this State to provide for those subject to its jurisdiction, by the 21st ​sec. of the 2d art. of the Constitution, which declares, "that the free white men of this State shall have a right to keep and bear arms for their common defence ;" thus indicating, in terms too plain to be misunderstood, that the sole object of the latter in securing this right, was to provide, beyond the power of legal control, adequate means for the preservation and defence of the State, and her republican institutions. And therefore, without applying to this provision in our Constitution the maxim "expressio unius, exclusio alterius," so often applied in the interpretation of laws, I have come to the conclusion, that the legislature possesses competent powers to prescribe, by law, that any and all arms, kept or borne by individuals, shall be so kept and borne as not to injure or endanger the private rights of others, disturb the peace or domestic tranquillity, or in any manner endanger the free institutions of this State or the United States; and that no enactment on this subject, which neither directly nor indirectly so operates as to impair or render inefficient the means provided by the constitution for the defence of the State, can be adjudged invalid, on the ground that it is repugnant to the constitution. The act in question does not, in my judgment, detract any thing from the power of the people to defend their free state and the established institutions of the country. It inhibits only the wearing of certain arms concealed. This is simply a regulation as to the manner of bearing such arms as are specified. The practice of so bearing them, the legislative department of the government has determined to be wrong, or at least inconsistent with sound policy. So far, that department had a discretion in regard to the subject, over which the judiciary, as I conceive, has no control; and therefore the duty of the courts must be the same, whether the policy of the law be good or bad. In either event it is binding; and the obligation of the courts to enforce its provisions, when legally called upon to do so, is imperative.
In several States of this Union, the Court of the highest authority in the State has adjudicated upon the right to keep and bear arms, under and by virtue of the provisions contained in the respective constitutions of such States, in some of which, the language used appears to be different from and more comprehensive than that used either in the constitution of the United States or of this State. But I am not ​aware that this right has ever become the subject of any adjudication in the Federal courts, or that any of the State courts, in adjudicating upon it, have given any exposition of the article under consideration, or attempted to define the right as secured by it. It may therefore be considered as an open question; and being one of interest and importance, and as I conceive clearly within the cognizance of the Supreme Court of the United States, an adjudication of that Court upon it, by which the extent of the right may be distinctly ascertained and definitively settled, can be readily obtained, and the rule of decision in relation to it be made uniform throughout the Union.
I deem it only necessary to remark further, that the constitution of Alabama declares, that "every citizen has the right to bear arms in defence of himself and the State." Yet the Supreme Court of that State, in the case of The State vs. Reid, Ala. Rep. 1 vol. new series, p. 612, has decided in favor of the validity of a law of that State, which inhibits the right of carrying about the person certain weapons concealed. The constitution of the State of Indiana also provides, "that the people have a right to bear arms for the defence of themselves and the State ;" notwithstanding which, the Supreme Court of that State, in the case of The State vs. Mitchell, 3 Blacks. Rep. 229, has sustained a law of that State, in no respect essentially different from the enactment now in question. In Kentucky, and I believe in Tennessee also, the question has been decided against the validity of such enactments. A conflict between the decisions of the State courts in regard to the question, certainly exists; but so far as I am informed, the preponderance on either side is not very great.
I am therefore, after a careful and deliberate, consideration of the question, of the opinion that the enactment of the Legislature, above quoted, is in no wise repugnant either to the constitution of the United States or the constitution of this State, but is in every respect binding as a law of the land. Consequently, the Circuit Court erred in quashing the indictment, and thereupon discharging the defendant from the prosecution. And that judgment ought to be reversed.