[Cite as State v. Smith, 11 La. Ann. 633, 66 Am. Dec. 208 (1856).]

STATE v. J. T. SMITH.

(Monroe. July, 1856.)

The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States.

A partial concealment of the weapon, which does not leave it in full open view, is a violation of the statute.

Appeal from the District Court of the parish of Claiborne, Land, J.

The record does not show who appeared for the State.

George, for defendant and appellant.

MERRICK, C. J. The defendant was indicted and convicted of carrying concealed weapons. He takes the present appeal to reverse the charge of the judge to the jury. The language used in the charge, and excepted to, is "that carrying of a pistol in the pocket, under the clothes, although partially exposed, is the carrying of concealed weapons within the meaning of the statute."

The charge is objected to, "first, because it is a direct charge upon the facts of the case, and secondly, an evident misinterpretation of the statute."

The charge was not a charge upon the facts, although the facts proven before the jury may have been similar. The judge charges upon the facts when he expresses an opinion upon what has been proven to the jury, or when he assumes a given state of facts as proven, and not where he expresses, as in this case, his opinion of the law arising from a state of things which may, or may not, have been established before the jury, and upon the proof of which he abstains from intimating any opinion. On the other branch of the case, we are not satisfied that the charge of the judge misled the jury as to the law of the case.

The statute against carrying concealed weapons does not contravene the second article of the amendments of the Constitution of the United States. The arms there spoken of are such as are borne by a people in war, or at least carried openly. The article explains itself. It is in these words: "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." This was never intended to prevent the individual States from adopting such measures of police as might be necessary, in order to protect the orderly and well disposed citizens from the treacherous use of weapons not even designed for any purpose of public defence, and used most frequently by evil-disposed men who seek an advantage over their antagonists, in the disturbances and breaches of the peace which they are prone to provoke. There is, therefore, nothing in (p.634)the Constitution of the United States which requires of us a rigorous construction of the statute in question.

The section of statute under which the indictment is framed, is in these words:

"Be it further enacted, &c., That whoever shall carry a weapon or weapons concealed on or about his person, such as pistols, bowie knife, dirk or other dangerous weapon, shall be liable to a prosecution by indictment or presentment, and on conviction for the first offence shall be fined not less than two hundred and fifty dollars nor more than five hundred dollars, or imprisoned for one month; and for the second offence not less than five hundred nor more than one thousand dollars, or imprisonment in the parish prison at the discretion of the court, not exceeding three months, and that it shall be the duty of the judges of the district courts in this State to charge the grand jury especially as to this section."

The offence created by this statute is the carrying of the weapon, pistol, bowie knife or dirk, &c., concealed on or about the person. By the first section of the Act of 1813, a weapon of the kind designated was defined as concealed when, being carried by a person, it did not appear in full open view." Act 1813, p.172, sec. 1.

A partial concealment of the weapon, which does not leave it in full open view, is a violation of the statute. The judge, in the single expression in his charge to the jury excepted to, does not fully explain himself, yet we think a fair construction of his language does not imply more than is here expressed. He says the carrying of a pistol (a weapon designated by the statute,) in the pocket or under the clothes, although partially exposed, is the carrying of a concealed weapon. We must understand the district judge as speaking of weapons as ordinarily worn, and where the partial exposure is the result of accident or want of capacity in the pocket to contain, or clothes fully to cover the weapon, and not to the extremely unusual case of the carrying of such weapon in full open view, and partially covered by the pocket or clothes. We cannot say, from the single expression of the charge excepted to, that such error has intervened on the trial of this case as to require us to reverse the judgment.

Judgment affirmed.

Notice how THIS state court seems to recognize the SUPREMACY of the United States Constitution concerning our Right? Also of interest, is that I notice nothing in the wording of the amendment that would allow for the judge to draw that conclusion, do you? In addition, there is nothing indicated in ANY of the Debates concerning the Bill of Rights that would allow a rational mind to justify the decision reached. In FACT, a very well known and oft quoted decision from near the same time period declares exactly the opposite:

"For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise. 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."

- Bliss vs. Commonwealth, 12 Ky. (2 Litt.) 90, at 92, and 93, 13 Am. Dec. 251 (1822)

Yes, very interesting indeed. Also of note; The court didn't seem to have a problem with the COMA(S), did they? And, as far as those "police" regulations go:

"...More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went...."

- U.S. Supreme Court decision of 1856 in Dred Scott v. Sandford

Mr. Hamilton seems to disagree with the courts opinion concerning the right being contingent upon being in the "militia" and for "public defense" as well:

"If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government . . . The citizens must rush tumultuously to arms..."

- Alexander Hamilton, Federalist #28.

Hmmmmmm....

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