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[Cite as Bliss v. Commonwealth, 12 Ky. (2
Litt.) 90, 13 Am. Dec. 251 (1822).]
Bliss v. Commonwealth.
1. The right of the citizens to bear arms in
defence of themselves and the state, must be preserved entire. 2 and 3.
2. Not merely all legislative acts, which purport
to take it away; but all which diminish or impair it, as it existed when the
constitution was formed, are void. 3.
3. The act to prevent persons from wearing
concealed arms, is unconstitutional and void. 4.
OPINION OF THE COURT.--October 14, 1822.
This was an indictment founded on the act of the
legislature of this state, "to prevent persons in this commonwealth from wearing
The act provides, that any person in this commonwealth, who shall
hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed
as a weapon, unless when traveling on a journey, shall be fined in any sum not
less than $100; which may be recovered in any court having jurisdiction of like
sums, by action of debt, or on presentment of a grand jury.
The indictment, in the words of the act, charges Bliss with having
worn concealed as a weapon, a sword in a cane.
Bliss was found guilty of the charge, and a fine of $100 assessed by
the jury, and judgment was thereon rendered by the court. To reverse that
judgment, Bliss appealed to this court.
2. In argument the judgment was assailed by the counsel of Bliss,
exclusively on the ground of the act, on which the indictment is founded, being
in conflict with the twenty-third section of the tenth article of
the constitution of this state.
That section provides, "that the right of the citizens to bear arms
in defence of themselves and the state, shall not be questioned."(p.91)
The provision contained in this section, perhaps, is as well
calculated to secure to the citizens the right to bear arms in defence of
themselves and the state, as any that could have been adopted by the makers of
the constitution. If the right be assailed, immaterial through what medium,
whether by an act of the legislature or in any other form, it is equally opposed
to the comprehensive import of the section. The legislature is no where
expressly mentioned in the section; but the language employed is general,
without containing any expression restricting its import to any particular
department of government; and in the twenty-eighth section of the same article
of the constitution, it is expressly declared, "that every thing in that article
is excepted out of the general powers of government, and shall forever remain
inviolate; and that all laws contrary thereto, or contrary to the constitution,
shall be void."
It was not, however, contended by the attorney for the commonwealth,
that it would be competent for the legislature, by the enactment of any law, to
prevent the citizens from bearing arms either in defence of themselves or the
state; but a distinction was taken between a law prohibiting the exercise of the
right, and a law merely regulating the manner of exercising that right; and
whilst the former was admitted to be incompatible with the constitution, it was
insisted, that the latter is not so, and under that distinction, and by
assigning the act in question a place in the latter description of laws, its
consistency with the constitution was attempted to be maintained.
3. That the provisions of the act in question do not import an
entire destruction of the right of the citizens to bear arms in defence of
themselves and the state, will not be controverted by the court; for though the
citizens are forbid wearing weapons concealed in the manner described in the
act, they may, nevertheless, bear arms in any other admissible form. But to be
in conflict with the constitution, it is not essential that the act should
contain a prohibition against bearing arms in every possible form; it is the
right to bear arms in defence of the citizens and the state, that is
secured by the constitution, and whatever restrains the full and complete
exercise of that right, though not an (p.92)entire destruction of it, is forbidden by the explicit
language of the constitution.
If, therefore, the act in question imposes any restraint on the
right, immaterial what appellation may be given to the act, whether it be an act
regulating the manner of bearing arms or any other, the consequence, in
reference to the constitution, is precisely the same, and its collision with
that instrument equally obvious.
And can there be entertained a reasonable doubt but the provisions
of the act import a restraint on the right of the citizens to bear arms? The
court apprehends not. The right existed at the adoption of the constitution; it
had then no limits short of the moral power of the citizens to exercise it, and
it in fact consisted in nothing else but in the liberty of the citizens to bear
arms. Diminish that liberty, therefore, and you necessarily restrain the right;
and such is the diminution and restraint, which the act in question most
indisputably imports, by prohibiting the citizens wearing weapons in a manner
which was lawful to wear them when the constitution was adopted. In truth, the
right of the citizens to bear arms, has been as directly assailed by the
provisions of the act, as though they were forbid carrying guns on their
shoulders, swords in scabbards, or when in conflict with an enemy, were not
allowed the use of bayonets; and if the act be consistent with the constitution,
it cannot be incompatible with that instrument for the legislature, by
successive enactments, to entirely cut off the exercise of the right of the
citizens to bear arms. For, in principle, there is no difference between a law
prohibiting the wearing concealed arms, and a law forbidding the wearing such as
are exposed; and if the former be unconstitutional, the latter must be so
We may possibly be told, that although a law of either description
may be enacted consistently with the constitution, it would be incompatible with
that instrument to enact laws of both descriptions. But if either, when alone,
be consistent with the constitution, which, it may be asked, would be
incompatible with that instrument, if both were enacted?
The law first enacted would not be; for, as the argument supposes
either may be enacted consistent with the constitution, that which is first
enacted must, at the (p.93)time of enactment, be
consistent with the constitution; and if then consistent, it cannot become
otherwise, by any subsequent act of the legislature. It must, therefore, be the
latter act which the argument infers would be incompatible with the
But suppose the order of enactment were reversed, and instead of
being the first, that which was first, had been the last; the argument, to be
consistent, should, nevertheless, insist on the last enactment being in conflict
with the constitution. So that the absurd consequence would thence follow, of
making the same act of the legislature, either consistent with the constitution,
or not so, according as it may precede or follow some other enactment of a
different import. Besides, by insisting on the previous act producing any effect
on the latter, the argument implies that the previous one operates as a partial
restraint on the right of the citizens to bear arms, and proceeds on the notion,
that by prohibiting the exercise of the residue of right, not affected by the
first act, the latter act comes in collision with the constitution. But it
should not be forgotten, that it is not only a part of the right that is secured
by the constitution; it is the right entire and complete, as it existed at the
adoption of the constitution; and if any portion of that right be impaired,
immaterial how small the part may be, and immaterial the order of time at which
it be done, it is equally forbidden by the constitution.
4. Hence, we infer, that the act upon which the indictment against
Bliss is founded, is in conflict with the constitution; and if so, the result is
obvious; the result is what the constitution has declared it shall be, that the
act is void.
And if to be incompatible with the constitution makes void the act,
we must have been correct, throughout the examination of this case, in treating
the question of compatibility as one proper to be decided by the court. For it
is emphatically the duty of the court to decide what the law is; and how is the
law to be decided, unless it be known? and how can it be known without
ascertaining, from a comparison with the constitution, whether there exist such
an incompatibility between the acts of the legislature and the constitution, as
to make void the acts?(p.94)
A blind enforcement of every act of the legislature, might relieve
the court from the trouble and responsibility of deciding on the consistency of
the legislative acts with the constitution; but the court would not be thereby
released from its obligations to obey the mandates of the constitution, and
maintain the paramount authority of that instrument; and those obligations must
cease to be acknowledged, or the court become insensible to the impressions of
moral sentiment, before the provisions of any act of the legislature, which in
the opinion of the court, conflict with the constitution, can be enforced.
Whether or not an act of the legislature conflicts with the
constitution, is, at all times, a question of great delicacy, and deserves the
most mature and deliberate consideration of the court. But though a question of
delicacy, yet as it is a judicial one, the court would be unworthy its station,
were it to shrink from deciding it whenever, in the course of judicial
examination, a decision becomes material to the right in contest. The court
should never, on slight implication or vague conjecture, pronounce the
legislature to have transcended its authority in the enactment of law; but when
a clear and strong conviction is entertained, that an act of the legislature is
incompatible with the constitution, there is no alternative for the court to
pursue, but to declare that conviction, and pronounce the act inoperative and
void. And such is the conviction entertained by a majority of the
court, (Judge Mills dissenting,) in relation to the act in question.
The judgment must, consequently, be reversed.