# State v. Buzzard/Separate Dickinson

* Court Documents
* Case Syllabus
* Opinions in Seriatim
* Separate Opinions Ringo Dickinson Lacy
​By DICKINSON, J.
The appellee contends that the law, under which he stands indicted, is unconstitutional, and that a right, secured to him by the 2d article of the amendments to the Constitution of the United States, has been violated. This article declares, 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 question is one of some importance, not so much, as I conceive, from any difficulty in arriving at a correct conclusion, as from the contrariety of opinions entertained by the different State Courts that have passed upon it. It is conceded by all, that the Federal Government is one of limited powers. It is not contended that the General Assembly of this State could interfere with any regulations made by Congress, as to the organizing, arming, or disciplining the militia, or in the manner in which that militia are either to keep or bear their arms. I shall endeavor to prove that it does not do so. The class of cases to which the constitutional provision applies, is widely different from the right of a private citizen to bear, concealed about his person, deadly weapons or arms. In the one, they are kept and carried in conformity with the constitution and laws of the United States, with a certain specific object in view: in the other, they are kept and carried for private purposes, wholly independent of any constitutional regulation, and to answer private ends, which have no bearing upon the security of the State. If this idea be correct, then it follows, that when arms are not kept or used for the defence of the State or Federal Government, the manner of carrying and mode of using them are subject to the control and authority of the State Legislature. Every citizen owes a double allegiance, and is entitled to the two-fold protection of the General and State Governments. To the first, the Constitution of the United States commits the powers of war, peace, commerce, negotiation, and those general powers relating to our external relations, and also the powers of an internal kind which require uniformity in their operation. To the second, belong all that is not included in the first, of a municipal character, particularly every thing connected with the police and economy of the State. If the provision, when it ​speaks of militia connected with the people, knew no exception as to the time, mode, and manner in which the right to keep and bear arms should be exercised, the present question could not have arisen. And as the whole difficulty in this case has arisen out of this blending together the terms "well regulated militia" and "the right of the people to keep and bear arms," so that difficulty will be removed by a close attention to the difference in the nature and character of the constitutional prohibition and the legislative provision, and the result of their operations respectively. Whenever a question arises as to any constitutional provision, it is proper, in order to ascertain its object, to look into the manner in which it has been carried out by Congress, and to the purposes which it was intended to answer. That a "well regulated militia is necessary to the security of a free State," will not be questioned. The manner of regulating, was to organize, arm, and discipline them; to do this, full power is vested in Congress by the declaration or bill of rights, and numerous laws have from time to time been passed by that body, for that purpose; thereby giving a construction to the article in question. The militia being necessarily composed of the people, as our government is opposed in principle to standing armies, the provision that they should have a right to keep their arms and use them, was a wise one, and necessary to carry out the object of the grant, in providing at all times for the security of the States. It is admitted that the laws for organizing, arming, and disciplining the militia, were passed in virtue of the power given by the Constitution of the United States to regulate them. If we look into the history of the country, we shall alike arrive at the conclusion that the power given the militia to keep and bear arms, resulted from the necessity of having a military force at all times at the command of the Federal and State governments, armed and ready to repel force by force, sustain the laws, and enforce obedience to the mandates of their courts.
The motive, then, for granting this power to keep and bear arms, could not be extended to an unlimited, uncontrolled right to bear any kind of arms or weapons, upon any and every occasion; still less the terms, for they are restrictive in their language. That a well regulated militia is necessary for the security of a free State, and that the right ​of the people to keep and bear arms ought not to be infringed, are principles not in the slightest degree encroached upon by the legislative enactment of this State prohibiting the wearing of concealed weapons.
One of the objects of the constitution was, "to provide for the common defence." To legislate upon this subject, is clearly within the constitutional charter; and that the States retain the power to legislate in relation to arms, and the mode of carrying and keeping them, provided its exercise is not repugnant to the previous grant to the Federal Government, is incontrovertible. The State Governments are charged with the police of the State. They, considering acts as having a demoralizing tendency, can prohibit them. Could Congress authorize any and every person, by express law, to carry deadly weapons concealed about his person, when not composing one of the militia, and not a part of the regulations ordained for their government? The police of a State is to be regulated by its own laws; and the Federal Government cannot interfere with it, so as to legalize any act which the State prohibits, and which is not necessary to carry out any of the great objects for which it was instituted. So long as the enactments of the General Assembly do not weaken the arm of the Federal Government, impair its power, or lessen its means to protect and sustain itself, and preserve inviolate the freedom of the States, they must be respected and enforced. But the slightest interference with the constitutional regulations and restrictions, in effecting these objects, becomes a violation of the compact between the State and Federal authorities, and ceases to be obligatory upon the citizen. The protection which a government owes to the States is political in its character: the municipal regulations to extend that protection to the citizen in his individual capacity, must be left to the State authority, and are such only as are consistent with the safety of others. Indeed, it is scarcely possible to look into the statute book, and not find written upon almost every page some restraints upon what are considered natural rights. The argument of the appellee, that men swayed by their interests, or governed by their passions, shall be permitted to wear a dirk, butcher-knife, &c., concealed as a weapon, independent of the control or authority of law, and that the General Assembly ​cannot, by legal enactment, when the use is at the time not required or necessary for military purposes, prohibit it, is to my mind as mischievous as it is erroneous. To assert that a citizen is entitled to protection from his government, and then deny to that government the means of securing it, is a contradiction in terms, difficult if not impossible to be reconciled.
The provision of the Federal constitution, under which the appellee claims his discharge, is but an assertion of that general right of sovereignty belonging to independent nations, to regulate their military force. Nor has the General Assembly attempted to interfere with the exercise of that right. The enactment in question is a mere police regulation of the State for the better security and safety of its citizens, having reference to weapons and arms of a wholly different character from such as are ordinarily used for warlike purposes. The principle contained in the provision of our constitution, which declares that "the freemen of this State shall keep and bear arms for their common defence," is precisely similar to that of the United States; it stands upon the same ground, and is declaratory of the same right. The terms "common defence," in ordinary language, mean national defence. The reason for keeping and bearing arms, given in the instrument itself, is clearly explanatory, and furnishes the true interpretation of the claim in question. The militia constitutes the shield and defence for the security of a free State; and to maintain that freedom unimpaired, arms and the right to use them for that purpose are solemnly guarantied. The personal rights of the citizen are secured to him through the instrumentality and agency of the constitution and laws of the country; and to them he must appeal for the protection of his private rights and the redress of his private injuries. To deprive the General Assembly of the power to regulate and control those rights, when not inconsistent with the grant to the General Government, would be to take away from the State the terrors of the law and the restraint of its moral influence, upon which its prosperity mainly depends. It is true, the terms of the grant are affirmative; but affirmative words are often, in their operation, negative of other objects than those affirmed; and in the construction of an article of the constitution, the whole must be taken in view, and that construction adopted, ​which will consist with its words, and best promote its general intention. And we are authorized to imply a negative from affirmative words, where that implication promotes the intention. So a limitation on the broad terms of the grant is necessarily implied in other branches of this power, and in the manner in which it has been exercised by Congress.
The grand object of the framers of the Constitution of the United States, was to establish a common government for sovereign States, and to leave that sovereignty unimpaired, wherever it could be so left without impairing the government of the Union. That Congress has never, in any one single instance, even by implication, passed any law relating to the militia, their organization, discipline, or arms, except as in reference to some known or supposed public enemy, in present or in future, where the services of the militia might be requisite for the common defence, and for the security of the States, is to my mind a strong argument that they do not deem themselves authorized to interfere with the police regulations of a State, as to the mode or manner in which arms may be carried in time of peace, and in the ordinary associations of life unconnected with military warfare.
The act of the General Assembly of this State, rendering it penal to carry concealed weapons, does not, in my opinion, conflict with any of the powers of the General Government. On the contrary, I view it as the exercise of a power loudly called for by our citizens, and which, if strictly enforced by the public authorities, would add greatly to the peace and good order of society, the security of our citizens at home, and the reputation of the State abroad.
I therefore concur with the Chief Justice, that the exercise of the legislative power in the enactment of the law in question, does not infringe either the Constitution of the United States or of this State.