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Cite as State v. Kerner, 181 N.C. 574 (1921)
574 IN THE SUPREME COURT. [181
STATE v. KERNER.
STATE v. O. W. KERNER.
(Filed 11 May, 1921.)
1. Constitutional Law-Criminal Law-Statutes-Weapons-Arms
Unconcealed Weapons.
A statute making the carrying of a weapon, specifying
pistols, among other things, from the premises unconcealed, a
misdemeanor and punishable the same as if carried concealed,
unless a permit be first obtained upon a statement of the
purpose for which it was to be carried, the payment of a $5
license fee and the giving of a $500 bond, exceeds the
legislative power of police regulation and is in violation of
the declaration of rights in our State Constitution, that "The
right of the people to keep and bear arms shall not be
infringed," with proviso that "nothing herein contained shall
justify the practice of carrying concealed weapons or prevent
the Legislature from enacting statutes against said practice."
Const., Art. I, sec. 24. Semble, a pistol is included in the
word "arms" ex vi termini.
2. Same-Questions of Law-Trials-Case Agreed.
Where it appears from a special verdict that the
defendant was tried for carrying an unconcealed weapon, made
a misdemeanor under a public-local statute; that he had been
accosted on the street of a town by one who desired to bring
about a fight, and that the defendant then put down some
packages he was carrying and went to his store and returned
with a pistol, carrying it openly: Held, the offense created
by the statute. was unconstitutional, and a conviction
thereunder could not be sustained, as a matter of law.
WALKER, J., concurring in result; ALLEN, J., concurring;
STACY, J., concurring in opinion of ALLEN, J.
APPEAL by State from Webb, J., at January Term, 1921, of FORSYTH.
The defendant was indicted on a first count for carrying a
concealed
SPRING TERM, 1921. 575
STATE v. KERNER.
weapon, and on the second count for carrying a pistol off his
premises unconcealed. There was a special verdict, which found
the defendant was walking along the streets of the town of
Kernersville in Forsyth County carrying some packages, when he was
accosted, for the purpose of engaging him in a fight, by one
Matthews; that in the course of this altercation he set down his
packages and went to his place of business and there procured a
pistol, which he brought back with him unconcealed to the scene of
the altercation. Sec. 3, ch. 317, Public-Local Laws 1919,
prohibits the carrying of such weapons off his own premises by any
one in Forsyth without a permit, even though it was not concealed.
The court, being of the opinion that this statute was in conflict
with the constitutional provision that "the right to bear arms
shall not be infringed," directed a verdict of not guilty, and the
State appealed.
Attorney-General Manning and Assistant Attorney-General Nash
for the State.
Jones & Clement for defendant.
CLARK, C. J. The second amendment to the United States
Constitution, which provides that "the right of the people to keep
and bear arms shall not be infringed," does not apply, for it has
been repeatedly held by the United States Supreme Court and by this
Court, and, indeed, by all courts, that the first ten amendments to
the United States Constitution are restrictions upon the Federal
authority and not upon the states. In re Briggs, 135 N. C., 120;
S. v. Patterson, 134 N. C. 617; S. v. Newsom, 27 N. C., 250; U. S.
v. Cruikshank, 92 U. S. 542; 9 Rose's Notes (Rev. Ed.), 152.
The Constitution of this State, see. 24, Art. 1, which is
entitled, "Declaration of Rights," provides: "The right of the
people to keep and bear arms shall not be infringed," adding,
"Nothing herein contained shall justify the practice of carrying
concealed weapons, or prevent the Legislature from enacting penal
statutes against said practice." This exception indicates the
extent to which the right of the people to bear arms can be
restricted; that is, the Legislature can prohibit the carrying of
concealed weapons, but no further. This constitutional guarantee
was construed in S. v. Speller, 86 N. C. 697, in which it was held
that the distinction was between the "right to keep and bear arms,"
and the "practice of carrying concealed weapons." The former is a
sacred right, based upon the experience of the ages in order that
the people may be accustomed to bear arms and ready to use them for
the protection of their liberties or their country when occasion
serves. The provision against carrying them concealed was to
prevent assassinations or advantages taken by the lawless, i. e.,
against the abuse of the privilege.
576 IN THE SUPREME COURT. [181
STATE v. KERNER.
This provision of the Constitution has also been cited and
discussed in S. v. Reams, 121 N. C., 556; and in S. v. Boone, 132
N. C., 1108. Chapter 317, Public-Local Laws 1919, applicable only
to Forsyth County, provides: Section 1 prohibits the carrying of
concealed weapons; section 2 requires a permit, and section 3
provides: "If any person, except when on his own premises, shall
carry any weapon (named in section 1) without a permit (as provided
in section 2) he is guilty of a misdemeanor and punished as
provided in section 1 for carrying a concealed weapon." The
weapons named in section 1 include pistols, and the question as
presented is whether this conflicts with the constitutional
provisions above cited.
The other weapons recited in section 1 of this act, besides
"pistol," are, "bowie knife, dirk, dagger, slung-shot, loaded cane,
brass, iron or metallic knucks, or razor, or other deadly weapon of
like kind." None of these except "pistol," can be construed as
coming within the meaning of the word "arms" used in the
constitutional guarantee of the right to bear arms. We are of the
opinion, however, that "pistol" ex vi termini is properly included
within the word "arms," and that the right to bear such arms
unconcealed cannot be infringed. The historical use of pistols as
arms of offense and defense is beyond controversy.
It is true that the invention of guns with a carrying range of
probably 100 miles, submarines, deadly gasses, and of aeroplanes
carrying bombs and other modern devices have much reduced the
importance of the pistol in warfare except at close range. But the
ordinary private citizen, whose right to carry arms cannot be
infringed upon, is not likely to purchase these expensive and most
modern devices just named. To him the rifle, the musket, the
shotgun, and the pistol are about the only arms which he could be
expected to "bear," and his right to do this is that which is
guaranteed by the Constitution. To deprive him of bearing any of
these arms is to infringe upon the right guaranteed to him by the
Constitution.
It would be mockery to say that the Constitution intended to
guarantee him the right to practice dropping bombs from a flying
machine, to operate a cannon throwing missiles perhaps for a
hundred miles or more, or to practice in the use of deadly gasses.
In Cooley Const. Lim., the history and the intention of this
provision is thus set forth: "Among the other safeguards to liberty
should be mentioned the right of the people to keep and bear arms.
A standing army is peculiarly obnoxious in any free government, and
the jealousy of such an army has at times been so strongly
manifested in England as to lead to the belief that even though
recruited from among themselves, it was more dreaded by the people
as an instrument of oppression than a tyrannical monarch or any
foreign power. So impatient did the English people become of the
very
N. C.] SPRING TERM, 1921. 577
STATE v. KERNER.
army that liberated them from the tyranny of James II that they de-
manded its reduction even before the liberation became complete;
and to this day the British Parliament render a standing army
practically impossible by only passing a mutiny act from session to
session. The alternative to a standing army is "a well-regulated
militia"; but this cannot exist unless the people are trained to
bearing arms. The Federal and State constitutions, therefore,
provide "that the right of the people to bear arms shall not be
infringed."
We know that in the past this privilege was guaranteed for the
sacred purpose of enabling the people to protect themselves against
invasions of their liberties. Had not the people of the Colonies
been accustomed to bear arms, and acquire effective skill in their
use, the scene at Lexington in 1775 would have had a different
result, and when "the embattled farmers fired the shot that was
heard around the world" it would have been fired in vain. Had not
the common people, the rank and file, those who "bore the burden of
the battle" during our great Revolution, been accustomed to the use
of arms the victories for liberty would not have been won and
American Independence would have been an impossibility.
If our pioneers bad not been accustomed to the use of arms the
Indians could not have been driven back, and the French, and later
the British, would have obtained possession of the valley of the
Ohio and the Mississippi. If the frontiersmen had not been good
riflemen, particularly the riflemen from Tennessee and Kentucky,
the battle of New Orleans would have been lost and the frontiers of
this country would have stood still at the Mississippi.
In our own State, in 1870, when Kirk's militia was turned
loose and the writ of habeas corpus was suspended, it would have
been fatal if our people had been deprived of the right to bear
arms, and had been unable to oppose an effective front to the
usurpation.
The maintenance of the right to bear arms is a most essential
one to every free people, and should not be whittled down by
technical constructions. It should be construed to include all such
"arms" as were in common use, and borne by the people when this
provision was adopted. It does not guarantee on the one hand that
the people have the futile right to use submarines and cannon of
100 miles range, nor aeroplanes dropping deadly bombs, nor the use
of poisonous gasses, nor on the other hand does it embrace dirks,
daggers, slung-shots, and brass knuckles, which may be weapons, but
are not, strictly speaking, "arms" borne by the people at large,
and which are generally carried concealed. The practical and safe
construction is that which must have been in the minds of those who
framed our organic law. The intention was to embrace the "arms,"
an acquaintance with whose use was necessary for their protection
against the usurpation of illegal power-such as rifles,
578 IN THE SUPREME COURT. [181
STATE v. KERNER.
muskets, shotguns, swords, and pistols. These are now but little
used in war, still they are such weapons that they or their like
can still be considered as "arms", which they have a right to
"bear."
It is dangerous to minimize these guarantees, based upon the
wisdom of the ages, which have been imbedded in our organic law.
It has been well said that when the word weapon is used in a
statute it denotes firearms, which includes pistols, but does not
embrace brass knuckles, slungshots, or weapons of like description.
40 Cyc., 852, and cases there cited: State v. Buzzard, 4 Ark., 18;
English v. State, 35 Tex., 473. This distinction is upheld in
Aymette v. State, 21 Tenn. (2 Humphreys), 155; Andrews v. State, 3
Heis (Tenn.), 165; State v. Wilburn, 66 Tenn. (7 Baxter), 57;
Wilson v. State, 33 Ark., 557; Nunn v. Georgia, 1 Kelly (Geo.),
243; Stockdale v. Georgia, 32 Ga., 225.
It would also be a reasonable regulation, and not an
infringement of the right to bear arms, to prohibit the carrying of
deadly weapons when under the influence of intoxicating drink, or
to a church, polling place, or public assembly, or in a manner
calculated to inspire terror, which was forbidden at common law.
These from a practical standpoint are mere regulations, and would
not infringe upon the object of the constitutional guarantee, which
is to preserve to the people the right to acquire and retain a
practical knowledge of the use of firearms. S. v. Shelby, 90 Mo.,
302.
It is also but a reasonable regulation, and one which has been
adopted in some of the states, to require that a pistol shall not
be under a certain length, which, if reasonable, will prevent-the
use of pistols of small size, which are not borne as arms, but
which are easily and ordinarily carried concealed. To exclude all
pistols, however, is not a regulation, but a prohibition, of arms,
which come under the designation of "arms" which the people are
entitled to bear. This is not an idle or an obsolete guarantee,
for there are still localities, not necessary to mention, where
great corporations, under the guise of detective agents or private
police, terrorize their employees by armed force. If the people
are forbidden to carry the only arms within their means, among them
pistols, they will be completely at the mercy of these great
plutocratic organizations. Should there be a mob, is it possible
that law-abiding citizens could not assemble with their pistols
carried openly and protect their persons and their property from
unlawful violence without going before an official and obtaining
license and giving bond?
The usual method when a country is overborne by force is to
"disarm" the people. It is to prevent the above and similar
exercises of arbitrary power that the people in creating this
Government "of the people, by the people, and for the people,"
reserved to themselves the right to "bear arms" that accustomed to
their use they might be ready to meet illegal
N. C.] SPRING TERM, 1921. 579
STATE v. KERNER.
force with legal force by adequate and just defense of their
persons, their property, and their liberties, whenever necessary.
We should be slow, indeed, to construe such-guarantee into a mere
academic expression which has become obsolete.
We can have no knowledge of the future except by the past, or
as Patrick Henry said, "The only light by which our feet are guided
is the lamp of experience." The constitutional provision which
forbids any prohibition upon the people to bear arms and use them
effectively by being accustomed to their use should be strictly and
stoutly maintained, for we know not when the occasion may again
require the assertion of that doctrine which was one familiar
throughout this country that, "Resistance to tyranny is obedience
to God," or the defense of person and property against mobs and
violence.
The statute in this case, Public-Local Laws 1919, ch. 3172 is
especially objectionable in that it requires (sec. 2) that in order
to carry a pistol off his own premises, even openly, and for a
lawful purpose, the citizen must make application to the municipal
court, if a resident of a town; or to the Superior Court if not
residing in town, "describing the weapon and giving the time and -
purpose for which it may be carried off his premises, and must pay
to the clerk of the court the sum of $5 for each permit, and must
file a bond in the penalty of $500 that he will not carry the
weapon except as so authorized." In the case of a riot or mob
violence, or other emergency requiring the defense of public order,
this would place law-abiding citizens entirely at the mercy of the
lawless element. As a regulation, even, this is void because an
unreasonable regulation, and, besides, it would be void because for
all practical purposes it is a prohibition of the constitutional
right to bear arms. There would be no time or opportunity to get
such permit and to give such bonds on an emergency.
On this occasion, the defendant, threatened with violence, was
forced to abandon his property. He went to his place of business,
where he had the right to keep his pistol, "being on his own
premises," and returned with it unconcealed. He was acting in
self-defense of his person and in defense of his property. The
court below most properly adjudged, upon the special verdict, that
he was not guilty.
No error.
WALKER, J., concurring in result.
ALLEN, J., concurring: The right to bear arms, which is
protected and safeguarded by the Federal and State constitutions,
is subject to the authority of the General Assembly, in the
exercise of the police power, to regulate, but the regulation must
be reasonable and not prohibitive, and must bear a fair relation to
the preservation of the public peace and safety.
580 IN THE SUPREME COURT. [181
STATE v. GETTYS.
This is, I think, the correct principle, and it appears to me
the constitutional privilege is infringed by the act, under which
the defendant is indicted, as it makes one guilty of a violation of
law, who carries a pistol off his own premises openly and for a
lawful purpose without a permit and he is required to pay $5 and to
give a bond in the sum of $500 before the permit can issue.
No provision is made for an emergency, and no exception in
favor of one who carries a pistol off his premises openly, in the
necessary defense of his person or property, when he has had no
opportunity to secure a permit.
STACY, J., concurs in this opinion.
574 IN THE SUPREME COURT. [181
STATE v. KERNER.
STATE v. O. W. KERNER.
(Filed 11 May, 1921.)
1. Constitutional Law-Criminal Law-Statutes-Weapons-Arms
Unconcealed Weapons.
A statute making the carrying of a weapon, specifying
pistols, among other things, from the premises unconcealed, a
misdemeanor and punishable the same as if carried concealed,
unless a permit be first obtained upon a statement of the
purpose for which it was to be carried, the payment of a $5
license fee and the giving of a $500 bond, exceeds the
legislative power of police regulation and is in violation of
the declaration of rights in our State Constitution, that "The
right of the people to keep and bear arms shall not be
infringed," with proviso that "nothing herein contained shall
justify the practice of carrying concealed weapons or prevent
the Legislature from enacting statutes against said practice."
Const., Art. I, sec. 24. Semble, a pistol is included in the
word "arms" ex vi termini.
2. Same-Questions of Law-Trials-Case Agreed.
Where it appears from a special verdict that the
defendant was tried for carrying an unconcealed weapon, made
a misdemeanor under a public-local statute; that he had been
accosted on the street of a town by one who desired to bring
about a fight, and that the defendant then put down some
packages he was carrying and went to his store and returned
with a pistol, carrying it openly: Held, the offense created
by the statute. was unconstitutional, and a conviction
thereunder could not be sustained, as a matter of law.
WALKER, J., concurring in result; ALLEN, J., concurring;
STACY, J., concurring in opinion of ALLEN, J.
APPEAL by State from Webb, J., at January Term, 1921, of FORSYTH.
The defendant was indicted on a first count for carrying a
concealed
SPRING TERM, 1921. 575
STATE v. KERNER.
weapon, and on the second count for carrying a pistol off his
premises unconcealed. There was a special verdict, which found
the defendant was walking along the streets of the town of
Kernersville in Forsyth County carrying some packages, when he was
accosted, for the purpose of engaging him in a fight, by one
Matthews; that in the course of this altercation he set down his
packages and went to his place of business and there procured a
pistol, which he brought back with him unconcealed to the scene of
the altercation. Sec. 3, ch. 317, Public-Local Laws 1919,
prohibits the carrying of such weapons off his own premises by any
one in Forsyth without a permit, even though it was not concealed.
The court, being of the opinion that this statute was in conflict
with the constitutional provision that "the right to bear arms
shall not be infringed," directed a verdict of not guilty, and the
State appealed.
Attorney-General Manning and Assistant Attorney-General Nash
for the State.
Jones & Clement for defendant.
CLARK, C. J. The second amendment to the United States
Constitution, which provides that "the right of the people to keep
and bear arms shall not be infringed," does not apply, for it has
been repeatedly held by the United States Supreme Court and by this
Court, and, indeed, by all courts, that the first ten amendments to
the United States Constitution are restrictions upon the Federal
authority and not upon the states. In re Briggs, 135 N. C., 120;
S. v. Patterson, 134 N. C. 617; S. v. Newsom, 27 N. C., 250; U. S.
v. Cruikshank, 92 U. S. 542; 9 Rose's Notes (Rev. Ed.), 152.
The Constitution of this State, see. 24, Art. 1, which is
entitled, "Declaration of Rights," provides: "The right of the
people to keep and bear arms shall not be infringed," adding,
"Nothing herein contained shall justify the practice of carrying
concealed weapons, or prevent the Legislature from enacting penal
statutes against said practice." This exception indicates the
extent to which the right of the people to bear arms can be
restricted; that is, the Legislature can prohibit the carrying of
concealed weapons, but no further. This constitutional guarantee
was construed in S. v. Speller, 86 N. C. 697, in which it was held
that the distinction was between the "right to keep and bear arms,"
and the "practice of carrying concealed weapons." The former is a
sacred right, based upon the experience of the ages in order that
the people may be accustomed to bear arms and ready to use them for
the protection of their liberties or their country when occasion
serves. The provision against carrying them concealed was to
prevent assassinations or advantages taken by the lawless, i. e.,
against the abuse of the privilege.
576 IN THE SUPREME COURT. [181
STATE v. KERNER.
This provision of the Constitution has also been cited and
discussed in S. v. Reams, 121 N. C., 556; and in S. v. Boone, 132
N. C., 1108. Chapter 317, Public-Local Laws 1919, applicable only
to Forsyth County, provides: Section 1 prohibits the carrying of
concealed weapons; section 2 requires a permit, and section 3
provides: "If any person, except when on his own premises, shall
carry any weapon (named in section 1) without a permit (as provided
in section 2) he is guilty of a misdemeanor and punished as
provided in section 1 for carrying a concealed weapon." The
weapons named in section 1 include pistols, and the question as
presented is whether this conflicts with the constitutional
provisions above cited.
The other weapons recited in section 1 of this act, besides
"pistol," are, "bowie knife, dirk, dagger, slung-shot, loaded cane,
brass, iron or metallic knucks, or razor, or other deadly weapon of
like kind." None of these except "pistol," can be construed as
coming within the meaning of the word "arms" used in the
constitutional guarantee of the right to bear arms. We are of the
opinion, however, that "pistol" ex vi termini is properly included
within the word "arms," and that the right to bear such arms
unconcealed cannot be infringed. The historical use of pistols as
arms of offense and defense is beyond controversy.
It is true that the invention of guns with a carrying range of
probably 100 miles, submarines, deadly gasses, and of aeroplanes
carrying bombs and other modern devices have much reduced the
importance of the pistol in warfare except at close range. But the
ordinary private citizen, whose right to carry arms cannot be
infringed upon, is not likely to purchase these expensive and most
modern devices just named. To him the rifle, the musket, the
shotgun, and the pistol are about the only arms which he could be
expected to "bear," and his right to do this is that which is
guaranteed by the Constitution. To deprive him of bearing any of
these arms is to infringe upon the right guaranteed to him by the
Constitution.
It would be mockery to say that the Constitution intended to
guarantee him the right to practice dropping bombs from a flying
machine, to operate a cannon throwing missiles perhaps for a
hundred miles or more, or to practice in the use of deadly gasses.
In Cooley Const. Lim., the history and the intention of this
provision is thus set forth: "Among the other safeguards to liberty
should be mentioned the right of the people to keep and bear arms.
A standing army is peculiarly obnoxious in any free government, and
the jealousy of such an army has at times been so strongly
manifested in England as to lead to the belief that even though
recruited from among themselves, it was more dreaded by the people
as an instrument of oppression than a tyrannical monarch or any
foreign power. So impatient did the English people become of the
very
N. C.] SPRING TERM, 1921. 577
STATE v. KERNER.
army that liberated them from the tyranny of James II that they de-
manded its reduction even before the liberation became complete;
and to this day the British Parliament render a standing army
practically impossible by only passing a mutiny act from session to
session. The alternative to a standing army is "a well-regulated
militia"; but this cannot exist unless the people are trained to
bearing arms. The Federal and State constitutions, therefore,
provide "that the right of the people to bear arms shall not be
infringed."
We know that in the past this privilege was guaranteed for the
sacred purpose of enabling the people to protect themselves against
invasions of their liberties. Had not the people of the Colonies
been accustomed to bear arms, and acquire effective skill in their
use, the scene at Lexington in 1775 would have had a different
result, and when "the embattled farmers fired the shot that was
heard around the world" it would have been fired in vain. Had not
the common people, the rank and file, those who "bore the burden of
the battle" during our great Revolution, been accustomed to the use
of arms the victories for liberty would not have been won and
American Independence would have been an impossibility.
If our pioneers bad not been accustomed to the use of arms the
Indians could not have been driven back, and the French, and later
the British, would have obtained possession of the valley of the
Ohio and the Mississippi. If the frontiersmen had not been good
riflemen, particularly the riflemen from Tennessee and Kentucky,
the battle of New Orleans would have been lost and the frontiers of
this country would have stood still at the Mississippi.
In our own State, in 1870, when Kirk's militia was turned
loose and the writ of habeas corpus was suspended, it would have
been fatal if our people had been deprived of the right to bear
arms, and had been unable to oppose an effective front to the
usurpation.
The maintenance of the right to bear arms is a most essential
one to every free people, and should not be whittled down by
technical constructions. It should be construed to include all such
"arms" as were in common use, and borne by the people when this
provision was adopted. It does not guarantee on the one hand that
the people have the futile right to use submarines and cannon of
100 miles range, nor aeroplanes dropping deadly bombs, nor the use
of poisonous gasses, nor on the other hand does it embrace dirks,
daggers, slung-shots, and brass knuckles, which may be weapons, but
are not, strictly speaking, "arms" borne by the people at large,
and which are generally carried concealed. The practical and safe
construction is that which must have been in the minds of those who
framed our organic law. The intention was to embrace the "arms,"
an acquaintance with whose use was necessary for their protection
against the usurpation of illegal power-such as rifles,
578 IN THE SUPREME COURT. [181
STATE v. KERNER.
muskets, shotguns, swords, and pistols. These are now but little
used in war, still they are such weapons that they or their like
can still be considered as "arms", which they have a right to
"bear."
It is dangerous to minimize these guarantees, based upon the
wisdom of the ages, which have been imbedded in our organic law.
It has been well said that when the word weapon is used in a
statute it denotes firearms, which includes pistols, but does not
embrace brass knuckles, slungshots, or weapons of like description.
40 Cyc., 852, and cases there cited: State v. Buzzard, 4 Ark., 18;
English v. State, 35 Tex., 473. This distinction is upheld in
Aymette v. State, 21 Tenn. (2 Humphreys), 155; Andrews v. State, 3
Heis (Tenn.), 165; State v. Wilburn, 66 Tenn. (7 Baxter), 57;
Wilson v. State, 33 Ark., 557; Nunn v. Georgia, 1 Kelly (Geo.),
243; Stockdale v. Georgia, 32 Ga., 225.
It would also be a reasonable regulation, and not an
infringement of the right to bear arms, to prohibit the carrying of
deadly weapons when under the influence of intoxicating drink, or
to a church, polling place, or public assembly, or in a manner
calculated to inspire terror, which was forbidden at common law.
These from a practical standpoint are mere regulations, and would
not infringe upon the object of the constitutional guarantee, which
is to preserve to the people the right to acquire and retain a
practical knowledge of the use of firearms. S. v. Shelby, 90 Mo.,
302.
It is also but a reasonable regulation, and one which has been
adopted in some of the states, to require that a pistol shall not
be under a certain length, which, if reasonable, will prevent-the
use of pistols of small size, which are not borne as arms, but
which are easily and ordinarily carried concealed. To exclude all
pistols, however, is not a regulation, but a prohibition, of arms,
which come under the designation of "arms" which the people are
entitled to bear. This is not an idle or an obsolete guarantee,
for there are still localities, not necessary to mention, where
great corporations, under the guise of detective agents or private
police, terrorize their employees by armed force. If the people
are forbidden to carry the only arms within their means, among them
pistols, they will be completely at the mercy of these great
plutocratic organizations. Should there be a mob, is it possible
that law-abiding citizens could not assemble with their pistols
carried openly and protect their persons and their property from
unlawful violence without going before an official and obtaining
license and giving bond?
The usual method when a country is overborne by force is to
"disarm" the people. It is to prevent the above and similar
exercises of arbitrary power that the people in creating this
Government "of the people, by the people, and for the people,"
reserved to themselves the right to "bear arms" that accustomed to
their use they might be ready to meet illegal
N. C.] SPRING TERM, 1921. 579
STATE v. KERNER.
force with legal force by adequate and just defense of their
persons, their property, and their liberties, whenever necessary.
We should be slow, indeed, to construe such-guarantee into a mere
academic expression which has become obsolete.
We can have no knowledge of the future except by the past, or
as Patrick Henry said, "The only light by which our feet are guided
is the lamp of experience." The constitutional provision which
forbids any prohibition upon the people to bear arms and use them
effectively by being accustomed to their use should be strictly and
stoutly maintained, for we know not when the occasion may again
require the assertion of that doctrine which was one familiar
throughout this country that, "Resistance to tyranny is obedience
to God," or the defense of person and property against mobs and
violence.
The statute in this case, Public-Local Laws 1919, ch. 3172 is
especially objectionable in that it requires (sec. 2) that in order
to carry a pistol off his own premises, even openly, and for a
lawful purpose, the citizen must make application to the municipal
court, if a resident of a town; or to the Superior Court if not
residing in town, "describing the weapon and giving the time and -
purpose for which it may be carried off his premises, and must pay
to the clerk of the court the sum of $5 for each permit, and must
file a bond in the penalty of $500 that he will not carry the
weapon except as so authorized." In the case of a riot or mob
violence, or other emergency requiring the defense of public order,
this would place law-abiding citizens entirely at the mercy of the
lawless element. As a regulation, even, this is void because an
unreasonable regulation, and, besides, it would be void because for
all practical purposes it is a prohibition of the constitutional
right to bear arms. There would be no time or opportunity to get
such permit and to give such bonds on an emergency.
On this occasion, the defendant, threatened with violence, was
forced to abandon his property. He went to his place of business,
where he had the right to keep his pistol, "being on his own
premises," and returned with it unconcealed. He was acting in
self-defense of his person and in defense of his property. The
court below most properly adjudged, upon the special verdict, that
he was not guilty.
No error.
WALKER, J., concurring in result.
ALLEN, J., concurring: The right to bear arms, which is
protected and safeguarded by the Federal and State constitutions,
is subject to the authority of the General Assembly, in the
exercise of the police power, to regulate, but the regulation must
be reasonable and not prohibitive, and must bear a fair relation to
the preservation of the public peace and safety.
580 IN THE SUPREME COURT. [181
STATE v. GETTYS.
This is, I think, the correct principle, and it appears to me
the constitutional privilege is infringed by the act, under which
the defendant is indicted, as it makes one guilty of a violation of
law, who carries a pistol off his own premises openly and for a
lawful purpose without a permit and he is required to pay $5 and to
give a bond in the sum of $500 before the permit can issue.
No provision is made for an emergency, and no exception in
favor of one who carries a pistol off his premises openly, in the
necessary defense of his person or property, when he has had no
opportunity to secure a permit.
STACY, J., concurs in this opinion.