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[Cite as People v. Zerillo, 219 Mich. 635, 189
N.W. 927 (1922).]
PEOPLE v. ZERILLO. (No. 183.)
(Supreme Court of Michigan. Oct. 2, 1922.)
1. Weapons--Possession of revolver for defense
cannot be made a crime.
The Legislature has no power to make it a crime
for a person, alien or citizen, to possess a revolver for the legitimate defense
of himself or his property.
2. Weapons--Game laws cannot infringe right to
bear arms for self-protection.
Game being the property of the state, the
Legislature may enact laws for its protection, but under the guise of protection
of game may not disarm any class falling within the constitutional guaranty of
the right to bear arms in defense of themselves.
3. Weapons--"Right to bear arms" means right to
possess and use arms.
The guaranty of the right to every person to bear
arms in defense of himself means the right to possess arms for legitimate use in
defense of himself, and necessarily includes the right to defend therewith, by
lawful means, his property.
4. Constitutional law--Statute will be upheld if
The Supreme Court must, if possible, construe an act so as to
make it harmonize with constitutional provisions.
5. Weapons--Act held void as restricting
constitutional right to bear arms.
That part of Act No. 14,
Pub. Acts 1921, making it a crime for an unnaturalized foreign-born
resident to possess a revolver, unless permitted by the sheriff, is in
contravention of Const. art. 2, § 5, guaranteeing to every
person the right to bear arms for the defense of himself and the state, and is
Exceptions from Recorder's Court of Detroit; Pliny
W. Marsh, Judge.
James Zerillo, alias Joseph Zerillo, was convicted of possessing a
revolver without a sheriff's permit, contrary to Public Acts 1921,
Act No. 14, and he excepts. Conviction set aside, and defendant
Argued before FELLOWS, C. J., and WIEST, STONE,
McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.
Speed, Ring & Kelly, McClear, Stein &
Sarbaugh, and J. Richard Newman, all of Detroit, for appellant.
Merlin Wiley, Atty. Gen., and Paul W. Voorhies, Pros. Atty., and
Robert M. Toms, Asst. Pros. Atty., both of Detroit, for the People.
WIEST, J. Defendant, an unnaturalized foreign-born
resident, was convicted under a complaint charging him with possessing a
revolver without a permit granted by the (p.928)sheriff, contrary to Act No. 14, Public
Acts 1921, and he brings the case here for review on exceptions before
It was made to appear in evidence that, about 5 o'clock in the
morning of the 25th day of September, 1921, at the corner of Chase and Russell
streets in the city of Detroit, defendant was seated at the wheel of a Marmon
touring car, with four or five men in the car with shotguns. Defendant had no
shotgun, but in the pocket of the door of the automobile was found a .38-caliber
revolver, and this is the firearm the possession of which led to his
The complaint was laid under the game law, but did not charge the
defendant with hunting for or capturing or killing any wild bird or animal, or
intending to do so. Does the game law make it unlawful for an unnaturalized
foreign-born resident of the state to possess a revolver? The act mentioned
makes it a misdemeanor for an unnaturalized foreign-born resident to hunt for or
capture or kill any wild bird or animals, either game or otherwise, of any
description, excepting in defense of his person or property, "and to that end,"
such a person shall not own or be possessed of a shotgun or rifle of any make or
a pistol or firearms of any kind. The act provides that, on the recommendation
of two citizens, the sheriff of the county, upon a showing of necessity, may
issue a permit to an unnaturalized foreign-born resident to possess
Defendant insists that the act, so far as it deprives him of the
right to possess a revolver, for a legitimate purpose, is in conflict with the
provisions of the Constitution of the state, and therefore void. The Constitution of this state (article 2, section 5) provides:
"Every person has a right to bear arms for the
defense of himself and the state."
The true meaning of this provision is well stated
in the Constitution of the state of Colorado:
"That the right of no person to keep and bear
arms in defense of his home, person, and property, or in aid of the civil
power when thereto lawfully summoned, shall be called in question; but nothing
herein contained shall be construed to justify the practice of carrying
concealed weapons." Article 2, § 13.
There should be added to this, however, the right
of the Legislature, under the police power, to regulate the carrying of
Firearms serve the people of this country a useful purpose wholly
aside from hunting, and under a constitution like ours, granting to aliens who
are bona fide residents of the state the same rights in respect to the
possession, enjoyment, and inheritance of property as native-born citizens, and
to every person the right to bear arms for the defense of himself and
the state, while the Legislature has power in the most comprehensive manner to
regulate the carrying and use of firearms, that body has no power to constitute
it a crime for a person, alien or citizen, to possess a revolver for the
legitimate defense of himself and his property. The provision in the
Constitution granting the right to all persons to bear arms is a limitation upon
the power of the Legislature to enact any law to the contrary.
The exercise of a right guaranteed by the Constitution cannot he
made subject to the will of the sheriff. The part of the act under which the
prosecution was planted is not one of regulation, but is one of prohibition and
confiscation. It is not regulation to make it a crime for an unnaturalized
foreign-born resident of the state to possess a revolver, unless permitted to
have one by the sheriff of the county where he resides.
Game being property of the state the Legislature may enact laws for
its protection, but under the guise of protection of game may not disarm any
class, falling within the constitutional guaranty, of the right to bear arms in
defense of themselves. The guaranty of the right to every person to bear arms in
defense of himself means the right to possess arms for legitimate use in defense
of himself, and necessarily includes the right to defend therewith, by lawful
means, his property.
The provision of the act permitting an unnaturalized foreign-born
resident to hunt for, capture, or kill any wild bird or animal in defense of his
person or property cannot be made to work out if the law is construed to make it
a crime for such a person to possess a firearm, but can be made to function if
the act is construed to make it a crime for such a person to possess a firearm
for the purpose of hunting, capturing or killing any wild animal, either game or
otherwise, of any description, excepting in defense of his person or
Must an alien owner of a farm sit with folded arms and watch
henhawks steal his chickens? No, the act permits him to kill noxious birds and
animals, when necessary, in defense of his person or property. But what is he
going to use for that purpose? Until the occasion arises, if this statute is
given the construction contended for by the people, it is a crime for him to
possess a firearm, and he therefore cannot be prepared to exercise the leave
granted without committing a crime. Woodchucks could burrow in his yard and
meadows with impunity, owls rob his henroost, rats run about his feet at chore
time, and in some sections of the state wolves could sit on his very doorstep
and howl defiance. Even the predatory skunk, in the open season, would be more
offensively armed than the unnaturalized farmer faring forth to drive it away.
Must such a farmer whistle off the dog discovered (p.929)in the act of killing his sheep? Another statute gives
him the right to kill such a dog discovered in the act. Must he request the
burglar to come unarmed because he has been unarmed by the law? This act, if
construed as contended for by the people, is so sharp-shod as to calk itself.
The right to kill noxious birds and animals in defense of person or property
would be but a joke if the means of exercising the right are taken away by the
general prohibition against possessing any firearms.
If it is a crime for an alien to possess a revolver what meaning
shall be accorded section 3 of the act, which provides:
"That the possession of a shotgun, or rifle, or
pistol, or firearm of any kind, at any place outside of buildings within this
state by an unnaturalized foreign-born resident, shall be conclusive proof of
a violation of the provision of section one of this act."
Is this to be considered merely a rule of proof?
Proof of what? Proof of intent to hunt, or proof of possession of prohibited
weapons? If the alien is in possession of a revolver, and it is a violation of
the law for him to have one at all, there is no sense in declaring his
possession of a revolver outside of buildings conclusive proof of a violation of
the provisions of section 1 of the act, but there is some sense in making it
proof of a purpose to hunt therewith, although it might be hard to convince a
real hunter that a revolver is a hunting arm.
At the same session of the Legislature, and in another and a later
act, relative to protection of game (Act 117, Public Acts
1921), it is provided:
"No person, while in an automobile shall carry a
gun or other firearm, except a pistol or revolver, unless the same be
Shall unnaturalized owners of automobiles be held
guilty under one game law for exercising a right under another game law? It
would be absurd to so hold, and no such holding is necessary if the game law is
kept to its true purpose. It is our duty, if possible, to so construe the act in
question as to make it harmonize with constitutional provisions.
The people rely upon the case of Com. v. Patsone, 231
Pa. 46, 79 Atl. 928
(affirmed 232 U.S. 144, 34 Sup.Ct. 281,
58 L.Ed. 539). We have examined that case, and find the game law
there involved did not include revolvers and pistols, and the Supreme Court of
the state of Pennsylvania was careful to state:
"This prohibition against having deadly and
long-range firearms does not in any way deprive the alien of property without
due process of law, but simply defines and limits his right to use firearms,
by restricting such right to the use of short-range firearms, revolvers, and
pistols, and such other weapons, as may be necessary for defense of his person
Mention of the same thing is to be found in the
opinion of the Supreme Court of the United States.
The relevant provision of the Constitution of the state of
Pennsylvania reads as follows:
"The right of the citizens to bear arms in
defense of themselves and the state shall not be questioned." Article 1, § 21.
It will be noticed that our Constitution is
inclusive of the right of every person to bear arms for the defense of
himself and the state, and not merely citizens, as in the state of
The part of the act making it a crime for an unnaturalized
foreign-born resident to possess a revolver, unless so permitted by the sheriff,
contravenes the guaranty of such right in the Constitution of the state, and is
void. The statute must be construed in accord with the provisions of our
Constitution, and it may stand as an act prohibiting the use of firearms by
unnaturalized foreign-born residents in hunting or capturing or killing any wild
bird or animals, either game or otherwise, of any description, excepting in
defense of person or property, but so far as it makes it a crime for
unnaturalized residents to possess a revolver for the legitimate defense of
their persons and property it is void.
Under the complaint and warrant and the evidence the defendant
should have been adjudged not guilty. The conviction is set aside, and defendant