Matthews v. State

¶1Dissenting Opinion

¶2I concur in affirming the judgment on Count 1 of the affidavit, but I dissent from the decision that the judgment on Count 2 should be affirmed.

¶3Count 2 in substance charged that appellant feloniously carried a pistol on his person, “. . . not then and there being in his place of abode or fixed place of business; and not then and there having a license from the State of Indiana to so carry said pistol.” Appellant properly raised the constitutionality of §3 of ch. 63 of the 1935 Acts (Uniform Firearms Act), §10-4736, Burns’ 1956 Replacement, by a motion to quash and a special answer, followed by a specification in a motion for new trial that the verdict on Count 2 was contrary to law.

¶4Section 10-4736, Burns’ 1956 Replacement, provides as follows:

“No person shall carry a pistol in any vehicle or on or about his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided.”

¶5*688There was no evidence that appellant was a person exempted from the Act under §10-4737, Burns’ 1956 Replacement, but appellant makes the contention that §3 of the Act, §10-4736, Burns’ 1956 Replacement, is a violation of §32 of Article 1 of the Constitution of Indiana, which states: “The people shall have a right to bear arms, for the defense of themselves and the State.” It is to be noted that this constitutional protection is in the identical language of the first clause of §20 of Article 1 of the 1816 Constitution of Indiana.1 The Indiana constitutional right to bear arms is not based only in aid of the militia as is the Second Amendment to the Federal Constitution, which states: “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.” Nor does the Indiana Constitution guaranteeing the inalienable right of self-defense, specifically grant the General Assembly the right to regulate the carrying of weapons.2 The constitutional right to bear arms in Indiana is stated in clear and simple language, and neither this court nor the Legislature, even when it enacts a Uniform Firearms Act, has any right to disregard a single well-chosen word, nor deprive an accused of a right granted by the Constitution. We should “not bend the constitution to suit the law of the hour.” Greencastle Twp. v. Black (1854), 5 Ind. 557, 565. If constitutional rights are to mean anything, they must protect the guilty as *689well as the innocent. Batchelor v. State (1920), 189 Ind. 69, 84, 125 N. E. 773. We are not considering a constitutional provision which may bring in a mixed question of -law and fact or the reasonableness of a regulation, as may be the -case under the Fourteenth Amendment; all that is involved in the appeal at bar is a question of law.

¶6The decisions from other jurisdictions are not uniform on the right to keep and bear arms any more than the constitutional provisions are stated in the same language. New of the decisions make any historical analysis of the cause for constitutional guarantees of the right to bear arms being considered so important by the Forefathers, nor do they consider the future effect of the precedent being made as to the right of the Legislature to make more drastic, regulations and prohibitions. But the Supreme Court of Michigan has well noted the constitutional right to bear arms in America had its origin in the fear of a standing army as well as a necessity of self-protection in a frontier society. See People v. Brown (1931), 253 Mich. 537, 235 N. W. 245, 82 A. L. R. 341. The English Bill of Rights (1688) had declared against the keeping of a standing army without the consent of Parliament, and that certain subjects should “have arms for their defense suitable to their conditions, and as allowed by law.” The British Parliament is not restrained by any written Constitution, but the American theory of government is that both the Legislative and the Executive must be restrained and limited by a written constitution.

¶7It seems too plain for doubt that out of the bitter experiences of the French and Indian Wars and American Revolution came the deep realization that the inalienable right of self-defense should be protected *690by constitutional guarantees beyond the power of any temporary majority in the Legislature to circumvent or abolish. The Indiana right to defense is in almost the identical language of the Pennsylvania Constitution of 1776 which stated: “That the People have a Right to bear Arms for the Defence of themselves and the State; and as Standing Armies, in the Time of Peace, are dangerous to Liberty, they ought not to be kept up: And that the Military should be kept under strict Subordination to, and Governed by the Civil Power.” Section the Thirteenth, Chapter 1, Pennsylvania Constitution of 1776.3 Although the Pennsylvania Dutch gunsmiths in Lancaster County started their production of guns by 1720, many on the frontier were without arms. In 1775 Conrad Weiser had written Governor Morris of his attempt to defend the Paxton people above Hunter’s Mill, and reported that he “gave orders to them to go home and fetch their Arms, whether Guns, Swords, pitchforks, axes, or whatsoever might be of use against the enemy.” J. I. Mombert, Authentic History of Lancaster County, Penn., p. 159. Nor was the situation much better on the frontier in the Shenandoah Valley where Washington in 1756 found that for 200 Culpeper militiamen there were only eighty firelocks. Vol. 2, Douglas South-all Freeman, George Washington, p. 185.

¶8The Continental Congress on July 18, 1775, resolved that it be recommended to the various Colonies that all able-bodied effective men, between 16 and 50 years of age be formed into regular companies of militia, but the difficulty of finding arms still persisted. Many *691militiamen had arms unsuitable for use in the field. It was easier to get men than to arm them.4 In the siege of Boston when the Connecticut militia returned home, those who had suitable arms had them seized by the army with arrangements made for compensation. But the historical evidence is undisputed that before the close of the Révolution muzzle-loaded flintlock pistols were being owned and used by some members of the Continental Army; so the right to bear arms as first recognized by the Forefathers not only included cutting swords, muskets, rifles and shotguns, but also pistols.5 Arms were not only necessary for the equipment of the militia (see U. S. v. Miller (1939), 307 U. S. 174, 59 S. Ct. 816, 83 L. Ed. 1206), but the necessities of each man being in a position to protect himself and his property were so obvious that the Forefathers chose not to rely upon mere legislation to guarantee the right.

¶9When our 1816 Constitution was adopted, the War of 1812 had hardly finished. The militia of Kentucky and some from Indiana Territory had fought under William Henry Harrison. Only a comparatively few pioneers had settled in the southern part of the State and along the Ohio state line. If the pioneer had money he had to protect it himself, and if he wanted personal *692security for himself, his family or. his cabin, he had to accomplish it by self' help. Every free white able-bodied male, not, a conscientous objector, between 18 ánd 45 years of age, belonged to the militia. Act VII, 1816 Constitution of Indiana. He had to have the right to bear arms for his defense and the defense of the State; hence this inalienable right was incorporated in the Constitution as it was understood from the time of the American Revolution to 1816. Of necessity,- the guaranty also embraced the right to have ammunition and the opportunity to become proficient in the use of arms so long as no trespass was committed upon the rights of others.

¶10It was- early held that the 1831 statute prohibiting anyone except travelers from wearing or carrying concealed weapons was constitutional. State v. Mitchell (1833), 3 Blackf. 229. The militia was never on duty armed with concealed weapons. The bearing of arms was unconcealed. This in no way limited the right to bear arms unconcealed, and not until the present Uniform Firearms Act has any statute attempted to abolish what the Constitution protects.

¶11Since 1816 this State has gotten along very well maintaining law and order under the various statutes prohibiting the carrying of concealed weapons, while at the same time the owners of pistols had the right to take them hunting or target shooting unconcealed without a permit and without being branded as a criminal. The 1925 Firearms Act (ch. 207, Acts 1925) did not prevent carrying unconcealed pistols, and under it the crime rate for crimes of violence was less than it has been under the 1935 Uniform Act. The effect of such unconstitutional regulation as prescribed by the latter Act has always been to disarm the law-abiding *693citizen, while the criminal pays no attention to the law. Such legislation really provides greater security for the outlaw.

¶12It is often assumed in some of the cases that a change in the constitutional right to bear arms must be made in the exercise of the police power of the State for the protection of the health, safety and general welfare of the people. The same argument could be presented for the impairment of the constitutional right to be free from unreasonable searches and seizures, which has roots in the pre-Revolutionary Writs of Assistance used to oppress the people of Massachusetts. What is overlooked is the obvious fact that the constitutional right to bear arms is in itself an exercise of the sovereign police power, and being a part of the Constitution, the Legislature has been prohibited from legislating any part of it out of existence.

¶13Nor can it be maintained that the right to bear arms only protects the use of muskets, muzzle-loading rifles, shotguns6 and pistols, because they were the only ones used by the Colonists at the time. ' It might as well be argued that only a house of the architectural vintage of the Revolution would be protected against a present unreasonable search and seizure. Modern guns suitable for hunting and defense are within the protection of our Bill of Rights just the same as the owner of a modern ranch house type home is protected against unlawful searches.

¶14If the Legislature can prohibit the carrying of an unconcealed pistol without a permit, with equal logic it can prohibit the carrying of an unconcealed rifle or shotgun without a permit. The advocates of a *694Police State by restrictive legislation or administrative rules always seem around and busy trying to restrict freedom and constitutional rights. Their plan is always cleverly designed to take a small chip at a time, for “many strokes overthrow the tallest oaks.”

¶15If we are to heed the lessons of modern history, it is self-evident our Bill of Rights should be construed liberally in favor of the individual and against restrictive legislation. When the Boston Police Strike resulted in areas of local anarchy within the city, the only protection for private property was the owner’s armed guard. We have often been cited to the example of England and her restrictive firearms legislation as the cause for reducing cimes.7 But it is within the memory of most of us that after Dunkirk, Americans with hunting arms were urged to give them to England to rearm a disarmed population in order to repel Hitler’s planned invasion.8 Had Hitler succeeded, the population would have been disarmed again for Dictators can tolerate no arms among the subject people. Modern History clearly discloses a prime modus opemndi of the Communist State is the disarming of its civilian population.

¶16Today, we read it is freely predicted that if we sustain an all-out H-bomb war, we shall suffer 65,000,000 or more casualties. No one can predict where they may be, or the extent of a resulting breakdown in law and order. It may well be that the man who survives near the target area will be the one who has prepared to bear arms for his defense. It is never safe to ignore *695the lessons of History, for too often they are repeated in a different form under changed conditions.

¶17It is a departure in constitutional interpretation to reason that because the Indiana Constitution does not say “the people shall have a right to carry pistols for the defense of themselves and the State” that therefore the Legislature can restrict the right to carry them unconcealed without a permit. With equal force it could be argued that because the Fifth Amendment did not specifically say no person should suffer a judgment against him without notice, that the due process clause of the Amendment would not be violated if a Federal statute authorized a judgment without notice. Neither does our Constitution mention rifles or shotguns. If the Legislature can restrict the carrying of a pistol unconcealed without a permit, it can do the same for rifles and shotguns. Moreover, since pistols are not named in the Constitution, what is to prevent the Legislature from making it a felony to have one at all? By the same reasoning there is nothing to prevent the Legislature from making it a felony to own or possess a shotgun or rifle. Of course the complete disarming of the people is the ultimate objective of the advocate of the Police State, whether he be a misguided reformer or a ruthless Dictator. The greatest danger in the precedent made today lies in the future. It will be used to justify further legislative encroachment on the constitutional right to bear arms, including shotguns and rifles.

¶18For 119 years there was no legislative attempt to abrogate the constitutional right to bear arms as the term was understood in 1816 and at the time of the American Revolution. For 104 years the Legislature never considered the bearing of arms unconcealed could *696be made a crime. It is not for this court to substitute its judgment for that of the Forefathers as to what the Constitution should protect, or to indulge in Constitution making under the guise of judicial construction. The philosophy that the end justifies the means can only result in the progressive destruction of constitutional liberties. Many more convictions could be obtained if courts would construe away the protection against self-incrimination and unreasonable searches, but Bills of Rights were adopted to protect the individual against oppression by his Government, whether he be guilty or innocent. If the courts ignore well-settled precedents for the construction of constitutional rights, they become government by judges and not by law. If the constitutional safeguards are to be diminished, it should be done by constitutional amendment, and not by validating legislation that contravenes what the Forefathers and the people made the supreme law of this State.

¶19Note. — Reported in 148 N. E. 2d 334.