                  154 - 162 Humphrey's Reports
                      AYMETTE v. THE STATE
                    NASHVILLE, DECEMBER 1840
Constitutional Law-- Act Prohibiting The Wearing Of A Bowie 
Knife. The Act of 1827, 127, 2 (Code, acc 4746), making it a 
misdemeanor to carry a bowie-knife under the clothes, or 
concealed about the person, is not in violation of the 
constitution, article 1, sec. 26, securing to the citizen the 
right to keep and bear arms for the common defense. (&cc. Andrews 
v. State, 3 Heisk., 180, 184, 193, citing this case, and 
variously commenting on the language of the opinion. See, also, 
Haynes v. State, 5 Humph., 120)
[Cited in: 1 Lea, 716.]
 
     At the January term, 1840, of the circuit court of Giles 
county, Judge Dillahaunty presiding, an indictment was filed 
against William Aymette. This indictment charged: 1st. That 
Aymette, on the [155] 26th day of June, 1839, in the county of 
Giles, "did wear a certain bowie-knife under his clothes, and 
keep the same concealed about his person, contrary to the form of 
the statute," etc. 2d. "That on the same day," etc., "the said 
Aymette did wear a certain other knife and weapon, in form, 
shape, and size resembling a bowie-knife, and under the clothes 
of him, the said Aymette, and concealed about the person of him," 
etc.
     The defendant pleaded not guilty, and the case was submitted 
to a jury at the October term, 1840, Judge Dillahaunty presiding.
     It appeared that Aymette, during the sitting of the circuit 
court in June 1839, at Pulaski, Giles county, had fallen out with 
one Hamilton, and that about ten o'clock, p.m., he went in search 
of him to a hotel, swearing he would have his heart's blood. He 
had a bowie-knife concealed under his vest and suspended to the 
waistband of his breeches, which he took out occasionally and 
brandished in his hand. He was put out of the hotel, and 
proceeded from place to place in search of Hamilton, and 
occasionally exhibited his knife.
     The jury, under the charge of the court, returned a verdict 
of guilty.
     The defendant moved the court in arrest of judgement, but the 
motion was overruled and the defendant sentenced to three months' 
imprisonment in the common jail of Giles county, and to pay a 
fine of $200 to the State. From this judgement defendant appealed 
in error
     Washington and Ewing, for Aymette; Attorney General, for the 
State.
     Green, J., delivered the opinion of the court.
     The plaintiff in error was convicted in the Giles circuit 
court, for wearing a bowie-knife concealed under his clothes, 
under the act of 1837-1838, ch. 137, sec 3, which provides "that, 
if any person shall wear any bowie-knife, or Arkansas toothpick, 
or other knife or weapon that shall in form, shape, or size 
resemble a bowie-knife or Arkansas toothpick, under his clothes, 
or keep the same concealed about his person, such person shall be 
guilty of a misdemeanor, and, upon conviction thereof, shall be 
fined a sum not less than two hundred dollars, and shall be 
imprisoned in the county jail not less than three months and not 
more than six months.
     [156] It is now insisted that the above act of the 
Legislature is unconstitutional, and therefore the judgement in 
this case should be arrested.
     In the 1st article of the constitution of this State, 
containing a declaration of rights, sec. 26, it is declared "that 
the free white men of this State have a right to keep and bear 
arms for their common defence."
     This declaration, it is insisted, gives to every man the 
right to arm himself in any manner he may choose, however unusual 
or dangerous the weapons he may employ, and, thus armed, to 
appear wherever he may think proper, without molestation or 
hindrance, and that any law regulating his social conduct, by 
restraining the use of any weapon or regulating the manner in 
which it shall be carried, is beyond the legislative competency 
to enact, and is void.
     In order to have a just and precise idea of the meaning of 
the clause of the constitution under consideration, it will be 
useful to look at the state of things in the history of our 
ancestors, and thus comprehend the reason of its introduction 
into our constitution.
     By the act of 22 & 23 Car. II, ch 25, sec 3; it is provided 
that no person who has not lands of the yearly value of L100, 
other than the son and heir apparent of an esquire, or other 
person of higher degree, etc., shall be allowed to keep a gun, 
etc. By this act, persons of a certain condition in life were 
allowed to keep arms, while a large proportion of the people were 
entirely disarmed. But King James II, by his own arbitrary power, 
and contrary to the law, disarmed the Protestant population, and 
quartered his Catholic soldiers among the people. This, together 
with other abuses, produced the revolution by which he was 
compelled to abdicate the throne of England. William and Mary 
succeeded him, and, in the first year of their reign, Parliament 
passed an act recapitulating the abuses which existed during the 
former reign, and declared the existence of certain rights which 
they insisted upon as their undoubted privileges. Among those 
abuses they say, in sec. 5, that he had kept a "standing army 
within the kingdom in time of peace, without the consent of 
parliament, and quartered soldiers contrary to law." Sec. 6 "By 
causing several good subjects, being Protestants, to be disarmed, 
at the same time when Papists were both armed and employed 
contrary to law."
     In the declaration of rights that follows, sec. 7 declares 
that "the subjects which are Protestant may have arms for their 
defence, [157] suitable to their condition and as allowed by 
law." This declaration, although it asserts the right of the 
Protestants to have arms, does not extend the privilege beyond 
the terms provided in the act of Charles II, before referred to. 
"They may have arms," says Parliament, "suitable to other 
condition and as allowed by law." The law, we have seen, only 
allowed persons of certain rank to have arms, and consequently 
this declaration of right had reference to such only. It was in 
reference to these facts, and to this state of the English law, 
that the 2d section of the amendments to the constitution of the 
United States was incorporated into that instrument. It declares 
that, "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."
     In the same view the section under consideration of our own 
bill of rights was adopted.
     The evil that was produced by disarming the people in the 
time of James II, was that the king, by means of a standing army 
quartered among the people, was able to overawe them, and compel 
them to submit to the most arbitrary, cruel, and illegal 
measures. Whereas, if the people had retained their arms, they 
would have been able, by a just and proper resistance to those 
oppressive measures, either to have caused the king to respect 
their rights, or surrender (as he was eventually compelled to do) 
the government into other hands. No private defence was 
contemplated, or would have availed anything. If the subjects 
had been armed, they could have resisted the payment of excessive 
fines, or the infliction of illegal and cruel punishments. When, 
therefore, Parliament says that "subjects which are Protestants 
may have arms for their defence, suitable to their condition, as 
allowed by law," it does not mean for private defence, but, being 
armed, they may, as a body, rise up to defend their just rights, 
and compel their rulers to respect the laws. This declaration of 
right is made in reference to the fact before complained of, that 
the people had been disarmed, and soldiers had been quartered 
among them contrary to law. The complaint was against the 
government. The grievances to which they were thus forced to 
submit were for the most part of public character, and could have 
been redressed only by the people rising up for their common 
defence, to vindicate their rights.
     The section under consideration, in our bill of rights, was 
adopted [158] in reference to these historical facts, and in this 
point of view its language is most appropriate and expressive. 
Its words are, "the free white men of this state have a right to 
keep and bear arms for their common defence." It, to be sure, 
asserts the right much more broadly than the statute of 1 William 
& Mary. For the right there asserted is subject to the 
disabilities contained in the act of Charles II. There, lords and 
esquires, and their sons, and persons whose yearly income from 
land amount to L100, were of suitable condition to keep arms. But 
with us, every free white man is of suitable condition and, 
therefore, every free white man may keep and bear arms. But to 
keep and bear arms for what? If the history of the subject had 
left in doubt the object for which the right is secured, the 
words that are employed must completely remove that doubt. It is 
declared that they may keep and bear arms for their common 
defence. The word "common", here used, means, according to 
Webster: 1. Belonging equally to more than one, or to many 
indefinitely. 2. Belonging to the public. 3. General. 4. 
Universal. 5. Public. The object, then, for which the right to 
keeping and bearing arms is secured is the defence of the public. 
The free white men may keep arms to protect the public liberty, 
to keep in awe those who are in power, and to maintain the 
supremacy of the laws and the constitution. The words "bear 
arms,", too, have reference to their military use, and were not 
employed to mean wearing them about the person as part of the 
dress. As the object for which the right to keep and bear arms is 
secured is of general and public nature, to be exercised by the 
people in a body, for their common defence, so the arms the right 
to keep which is secured are such as are usually employed in 
civilized warfare, and that constitute the ordinary military 
equipment. If the citizens have these arms in their hands, they 
are prepared in the best possible manner to repel any 
encroachments upon their rights by those in authority. They need 
not, for such purpose, the use of those weapons which are usually 
employed in private broils, and which are efficient only in the 
hands of the robber and the assassin. These weapons would be 
useless in war. They could not be employed advantageously in the 
common defence of the citizens. The right to keep and bear them 
is not, therefore, secured by the constitution.
     A thousand inventions for inflicting death may be imagined 
which might come under the appellation of an "arm," in the [159] 
figurative use of that term, and which could by no possibility be 
rendered effectual in war, or in the least degree aid in the 
common defence. Would it not be absurd to contend that a 
constitutional provision securing to the citizens the means of 
their common defence should be construed to extend to such 
weapons, although they manifestly would not contribute to that 
end, merely because, in the hands of an assassin, they might take 
away a life?
     The legislature, therefore, have a right to prohibit the 
wearing or keeping weapons dangerous to the peace and safety of 
the citizens, and which are not usual in civilized warfare, or 
would not contribute to the common defence. The right to keep and 
bear arms for the common defence is a great political right. It 
respects the citizens, on the one hand, and the rulers on the 
other. And, although this right must be inviolably preserved, yet 
it does not follow that the Legislature is prohibited altogether 
from passing laws regulating the manner in which these arms may 
be employed.
     To hold that the Legislature could pass no law upon this 
subject by which to preserve the public peace, and protect our 
citizens from the terror which wanton and unusual exhibition of 
arms might produce, or their lives from being endangered by 
desperados with concealed arms, would be to pervert a great 
political right to the worst of purposes, and to make it a social 
evil of infinitely greater extent to society than would result 
from abandoning the right itself.
     Suppose it were to sait the whim of a set of ruffians to 
enter the theatre in the midst of the performance, with drawn 
swords, guns, and fixed bayonets, or to enter the church in the 
same manner, during service, to the terror of the audience, and 
this were to become habitual, can it be that it would be 
beyond the power of the Legislature to pass laws to remedy such 
evil? Surely not. If the use of arms in this way can not be 
prohibited, it is in the power of fifty armed ruffians to break 
up the churches, and all other public assemblages, where they 
might lawfully come, and there would be no remedy. But we are 
perfectly satisfied that a remedy might be applied. The 
convention, in securing the public political right in question, 
did not intend to take away from the Legislature all power of 
regulating the social relations of the citizens upon this 
subject. It is true, it is somewhat difficult to draw the precise 
line where legislation must cease and where the political right 
begins, but it is not difficult to state a case where the right 
of legislation [160] would exist. The citizens have the 
unqualified right to keep the weapon, it being of the character 
before described as being intended by this provision. But the 
right to bear arms is not of that unqualified right character, 
the citizens may bear them for the common defence, but it does 
not follow that they may be borne by an individual, merely to 
terrify the people or for purposes of private assassination. And, 
as the manner in which they are worn and circumstances under 
which they are carried indicate to every man the purpose of the 
wearer, the Legislature may prohibit such manner of wearing as 
would never be resorted to by persons engaged in the common 
defence.
     We are aware that the court of appeals in Kentucky, in the 
case of Bliss v. Commonwealth, 2 Litteil, 90, has decided that an 
act of their Legislature, similar to the one now under 
consideration, is unconstitutional and void. We have great 
respect for the court by whom that decision was made, but we can 
not concur in their reasoning. We think the view of the subject 
which the opinion of the court in that case takes is far too 
limited for a just construction of the meaning of the clause of 
the constitution they had under consideration. It is not 
precisely in the words of our constitution, nevertheless it is of 
the same general import. The words are, that "the right of the 
citizens to bear arms in defence of themselves and the State 
shall not be questioned."
     In the former part of this opinion we have recurred to the 
circumstances under which a similar provision was adopted in 
England, and have thence deduced the reason of its adoption, and 
consequently have seen the object in view when the right to keep 
and bear arms was secured. All these considerations are left out 
of view in the case referred to, and the court confine themselves 
entirely to the consideration of the distinction between a law 
prohibiting the right and a law merely regulating the manner in 
which arms may be worn. They say there can be no difference 
between a law prohibiting the wearing concealed weapons and one 
prohibiting the wearing them openly.
     We think there is a manifest distinction. In the nature of 
things, if they were not allowed to bear arms openly they would 
not could not bear them in their defence of the State at all. To 
bear arms in defence of the State is to employ them in war, as 
arms are usually employed by citizens nations. The arms, 
consisting of swords, [161] muskets, rifles, etc., must 
necessarily be borne openly; so that a prohibition to bear them 
openly would be a denial of the right altogether. And, as in 
their constitution the right to bear arms in defence of 
themselves is coupled with the right to bear arms in defence of 
the State, we must understand the expression as meaning the same 
thing, and as relating to public, and not private, to the common, 
and not the individual, defence.
     But a prohibition to wear a spear concealed in a cane would 
in no degree circumscribe the right to bear arms in the defence 
of the State; for this weapon could in no degree contribute to 
its defence, and would be worse than useless in an army. And, if, 
as is above suggested, the wearing of arms in defence of the 
citizens is taken to mean the common defence, the same 
observations apply.
     To make this view of the case still more clear, we may 
remark that the phrase "bear arms," is used in the Kentucky 
constitution as well as in our own, and implies, as has already 
been suggested, their military use. The 28th section of our bill 
of rights provides "that no citizen of this State shall be 
compelled to bear arms provided he will pay an equivalent to be 
ascertained by law." Here we know that the phrase has a military 
sense, and no other; and we must infer that it is used in the 
same sense in the 26th section, which secures to the citizen the 
right to bear arms. A man in the pursuit of deer, elk, and 
buffaloes might carry his rifle every day for forty years, and 
yet it would never be said of him that he had borne arms; much 
less could it be said that a private citizen bears arms because 
he has a dirk or pistol concealed under his clothes, or a spear 
in a cane. So that, with deference, we think the argument of the 
court in the case referred to, even upon the question it has 
debated, is defective and inconclusive.
     In the case of Simpson v. The State, 5 Yerg, 356, Judge 
White, in delivering the opinion of the court, makes use of the 
general expression that, "by this clause in the constitution, an 
express power is given and secured to all the free citizens in 
the State to keep and bear arms for their defence, without any 
qualification whatever it is their kind and nature."
     But in that case no question as to the meaning of this 
provision in the constitution arose, or was decided by the court, 
and the expression is only an incidental remark of the judge who 
delivered the opinion, and, therefore, is entitled to no weight.
     We think, therefore, that upon either of the grounds assumed 
in this [162] opinion the legislature had the right to pass the 
law under which the plaintiff in error was convicted. Let the 
judgement stand.
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