Los Angeles herald., 1891-05-22
RIGHT TO BEAR ARMS.
ST SHALL NOT BE lNFRINoED, SAYS
THE CONSTITUTION.
Some Interviews as Go the Power of States
and Municipalities to Make Restricting
Laws and QSdinauces-The Question a
Pertinent One at This Time.
Especial Correspondence

Laws and OSdinauces-The Question a
Pertinent One at This Time.
Especial Correspondence.l
NEW YORK, May 4-There is probably
no state in the Union in which there is not
a law against the carrying of certain weap-
ons, and against carrying any concealed
weapon. Even IN Texas, which the world
at large feels called upon to regard as the
paradise of pistol shooters there is such
law, and it is enforced to a certain extent.
That is, stranger who should be found
carrying a revolver in his pocket would
probably have to pay fine, though very
large proportion of the citizens of the state
undoubtedly carry them and are not pun
ished
In Memphis, scme eight or nine years
ago, sort of epidemic of shooting
affrays led to the passage of a local ordi-
nance by virtue of which persons who
were found carrying pistols were impris-
oned and not fined. The mayor of neigh
boring city, who went armed while travel
ing, was accordingly sentenced to sixty
days in Jail, and no influence which he
could bring to bear was sufficient to save
him from going there, though | believe
he was, in fact, pardoned before he had
been there very long.
1t may be said in general way that the
laws and ordinances in the different parts
of the United States are very similar, and
it is therefore enough to quote those of
New York. Here there are state law and
a corporation ordinance on the subject
The state law prohibiting the carrying of
pistols has been repealed, but section 410 of
the penal code declares that any person
who carries, conceals, or possesses dag
ger, dirk, or a dangerous knife with In
tent to use it against the person of another
shall be guilty of felony, and the following
section declares that the possession of such
a weapon shall be deemed presumptive
evidence of intent to use it. The offense
being a felony, it is, of course, punished
severely, the penalty being a fine not ex-
ceeding $1,000, or imprisonment for not
more than seven years, or BOTH
The carrying of pistol is a less serious
offense, but according to the corporation
ordinance it is misdemeanor for any per-
son, excepting judges of the federal and
state courts and officers of the state and
city. to carry pistol of any kind ''con-
cealed on his person and not carried
openly" Provision is made for the issu-
ance of permit enabling a citizen to carry
a pistol lawfully, but in default of such
permit a penalty of ten dollars fine or ten
days Imprisonment is prescribed.
just now, probably because of certain
notable crimes committed by foreigners,
there has been loud call for the strict en-
forcement of such laws. The New York
Sun the other day quoted an Italian. who
had been arrested and found to have a
pistol in his pocket, as saying that the
habit of carrying weapons is universal
among Italians in this country, and ex
pressed it's belief that the statement is not
far from true. 1t then referred to the state
law making felony of the carrying of
certain specified weapons with intent to
use them, and said, sit is evident that such
weapons are not borne without the intent
to use them," and called on the police to
arrest everybody who may be suspected of
carrying them. This is in effect demand
that every Italian shall be arrested.
Now, the constitution of the United
States, in the second amendment, says: "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."
To the lay mind there is an apparent
conflict between this provision and the
state laws mentioned, and have consulted
various authorities on the subject.
Ex-Governor Hoadly, of Ohio, who is
now practicing law in New York, said that,
without taking time to examine the ques
tion thoroughly, he was inclined to think
that there was no conflict between the con.
stitutional provision quoted and the vari.
GUS laws mentioned. SIT has been held,''
he said, 'that the constitutional provisions
apply to federal legislation and to the po
lice power of congress in the District OF
Columbia, and so forth. They do not ap-
ply as restricting the power of states or
municipalities to pass their own laws"
"But by that you do not mean," said l,
"that a state can infringe any right of the
citizen which is guaranteed by the consti-
tuition of the United States?"
"Of course not" he said hastily. "But
this right to keep and bear arms, which is
not to be infringed, does not mean a right
to carry concealed weapons. 1t means,
rather, the use of weapons of warfare"
"Then citizen may carry a revolver in
a belt, but not in his pocket"
'Well, you may reduce it to that, 1 sup
pose but remember / am not giving you a
carefully prepared opinion-only an off
hand one"
Governor Albeit, of New Jersey, seemed
to be by no means so sure of the constitu-
tionality of the laws in question: though
as an executor, charged with the duty of en-
forcing them, he would not criticise them
He refused rather brusquely to express
any opinion whatever. Ex-President
Cleveland refused even to be seen for an
interview on the subject.
Mr. Hummel, of the firm of Howe &
Hummel, is generally conceded to be the
leading lawyer in criminal practice" so
called, at the New York bar. Atall events,
he is reputed to understand the criminal
code as well as, if not better than any of his
rivals. He said:
81 have given great deal of study to the
provisions of the penal code and the mu-
nicipal ordinances restricting the carrying
of deadly weapons, and l have no hesita-
ton in saying that in so far as they relate
to the carrying of weapons used in civil
lied warfare they contravene the second
amendment to the constitution of the
United States. / have repeatedly advised
my clients to that effect when they have
asked for my opinion touching their rights.
THAT second amendment must have
been a stumbling block in the way of the
lawmakers who framed the provisions of
the penal code of the state, for in the emu
meration of weapons the possession or car
riage of which is declared felony, fire
arms and other weapons recognized as
warlike are omitted, and only those are
mentioned which are universally regarded
as the tools of robbers and assassins.
Dirks, Stilettos, sword canes brass