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[Cite as State v. Kerner, 181 N.C. 574, 107
S.E. 222 (1921).]
STATE v. KERNER. (No. 345.)
(Supreme Court of North Carolina. May 11, 1921.)
1. Weapons--Right to bear arms under federal
Constitution not restriction on power of state.
Amend. 2, providing that the right of the people to keep and bear arms
shall not be infringed, is a restriction only on federal authority and not on
the states. (Per Clark, C.J., and Hoke, J.)
2. Weapons--Right to bear arms can only be
restricted as provided in Constitution.
Under Const. art.
1, § 24, providing that the right of the people to keep and bear arms
shall not be infringed but that nothing therein shall justify the practice of
carrying concealed weapons or prevent the Legislature from enacting penal
statutes against such practice, the exception indicates the extent to which the
right to bear arms can be restricted, and the Legislature can prohibit the
carrying of concealed weapons but no further. (Per Clark, C.J., and Hoke,
3. Weapons--Knives, etc., not "arms" within
Bowie knives, dirks, daggers, slung-shots,
loaded canes, brass, iron, or metallic knucks, (p.223)razors, etc., the carrying of which is prohibited by
Pub. Loc. Laws 1919, c. 317, are not "arms" within Const. art. 1, § 24, preserving the right to bear arms. (Per
Clark, C.J., and Hoke, J.)
4. Weapons--Pistol is within constitutional
right to bear "arms."
A pistol is properly included within the word
"arms," and the right to bear such arms cannot be infringed under Const. art. 1, § 24, as the Constitution includes all arms in
common use and borne by the people as such when the provision was adopted,
though by reason of modern inventions they are now little used in warfare. (Per
Clark, C.J., and Hoke, J.)
5. Weapons--Carrying while intoxicated or in
places of public assembly, etc., may be prohibited.
right to bear arms under Const. art. 1, § 24, it would be a
valid and reasonable regulation to prohibit the carrying of deadly weapons when
intoxicated, or to a church, polling place, or public assembly, or in a manner
calculated to inspire terror which was forbidden at common law. (Per Clark,
C.J., and Hoke, J.)
6. Weapons--Carrying of small pistols easily
concealed may be prohibited.
Notwithstanding the right to bear arms under
Const. art. 1, § 24, the Legislature may prohibit the
carrying of pistols of such small size as to be easily and ordinarily carried
concealed. (Per Clark, C.J., and Hoke, J.)
7. Weapons--Statute requiring permit for
carrying of pistol, though unconcealed, is invalid.
Loc. Laws 1919, c. 317, so far as it prohibits the carrying of a pistol
unconcealed off of one's own premises without a permit for which a fee of $5 and
a bond in the sum of $500 is required, is invalid under Const.
art. 1, § 24.
8. Weapons--Right to bear arms may be regulated,
but regulation must be reasonable.
The right to bear arms protected and
safeguarded by Const. U.S. Amend. 2, and Const. N.C. art. 1, § 24, 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. (Per Allen and Stacy,
Appeal from Superior Court, Forsyth County; Webb,
Criminal prosecution against O. W. Kerner for
carrying a pistol. From a judgment on a directed verdict for defendant, the
State appeals. Affirmed.
The defendant was indicted on a first count for
carrying a concealed 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. Section 3, c. 317, Public Local Laws of 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
The Attorney General and Frank Nasn, Asst. Atty.
Gen., for the State.
Jones & Clement, of Winston-Salem, for appellee.
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, 47 S.E. 403; State v. Patterson, 134 N.C. 617, 47 S.E. 808; State v. Newsom, 27 N.C. 250; U.S.
v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588;
9 Rose's Notes (Rev. Ed.) 152.
The Constitution of this state, section 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 guaranty was construed in State 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.
This provision of the Constitution has also (p.224)been cited and discussed in State v.
Reams, 121 N.C. 556, 27 S.E. 1004; and in State v. Boone,
132 N.C. 1108, 44 S.E. 595.
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 shall be guilty of a misdemeanor, and punished
as provided in section 1 * * * for carrying a concealed
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 guaranty 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 cannot be infringed. The
historical use of pistols as "arms" of offense and defense is beyond
It is true that the invention of guns with a carrying range of
probably 100 miles, submarines, deadly gases, and of airplanes 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 gases. In Cooley, Con. Lims., 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 army that
liberated them from the tyranny of James II that they demanded 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 had 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 "arms" as were in common use, and borne by
the people as such 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 airplanes dropping deadly bombs, nor the use of poisonous
gases, 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 (p.225)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, 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 guaranties 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, slung-shots, or weapons
of like description. 40 Cyc. 852, and cases there cited: State v. Buzzard, 4 Ark. 18; English
v. State, 35 Tex. 473, 14
Am. Rep. 374. This distinction is upheld in Aymette v.
State, 2 Humph. (Tenn.) 155; Andrews v. State, 3 Heisk. (Tenn.) 165, 8 Am. Rep. 8;
State v. Wilburn, 7 Baxt. (Tenn.) 57, 32 Am. Rep. 551;
Wilson v. State, 33 Ark. 557, 34 Am. Rep. 52;
Nunn v. Georgia, 1 Ga. 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 guaranty which is to preserve to
the people the right to acquire and retain a practical knowledge of the use of
fire arms. State v. Shelby, 90 Mo. 302, 2 S.W. 468.
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 guaranty, 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 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
guaranty 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 once familiar throughout
this country that "resistance to tyranny is obedience to God," or for the
defense of person and property against mobs and violence.
The statute in this case, Public Local Laws 1919, c.
317, is especially objectionable in that it requires (section 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 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 (p.226)adjudged upon the special verdict that he was not
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
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
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