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[Cite as Fife v. State, 31 Ark. 455, 25 Am.
Rep. 556 (1876).]
Fife vs. The State.
1. The right to bear arms--Constitutional
The provisions of Article ii of Amendments to
the Constitution of the United States, guaranteeing to the citizens the
right to keep and bear arms, was not intended as a restraint on State
2. ----: Same.
The provisions of Article ii, sec. 5, of the Constitution of this State, securing
to the citizens the right to keep and bear arms for their common defense,
relates to such arms as are used for purposes of war; and does not prevent the
legislature from prohibiting the wearing of such weapons as are not used in
civilized warfare, and would not contribute to the common defense.
3. ----: Construction of the act
The act of February 16th, 1875, which
prohibits the carrying of any pistol whatever, as a weapon, refers to such
pistols as are usually carried in the pocket, and of a size to be concealed
about the person, and used in private quarrels; and not to such as are within
the provisions of the Constitution.
ERROR to Jefferson Circuit Court.
Hon. J. A. Williams, Circuit Judge.
Gallagher & Newton, for the plaintiff in error.
Henderson, Attorney General, contra.
English, Ch. J.:
Alfred Fife, the plaintiff in error, was charged, before a justice of
the peace of Jefferson County, with carrying a pistol as a weapon, contrary to
the act of 16th February, 1875, convicted, and appealed to
the Circuit Court, where he was tried anew, and again found guilty; moved for a
new trial, which was refused; final judgment rendered against him for the fine
imposed by the jury, and he brought error.
One witness testified, on the trial, that he was walking down a
street in Pine Bluff, about the 17th of September, 1875, when he met plaintiff
in company with one Terry, near Trulock's bank. Plaintiff had a banjo under his
left arm, and a pistol in (p.456)his hand.
Witness spoke to Terry, when plaintiff raised his pistol, and asked him what he
said? Witness replied that he was talking to Terry. Plaintiff laid the guard of
his pistol, which he held in his hand, against the face of witness, and said
that, meaning the pistol, ruled the world, to which witness replied: "Yes, it
did." Witness saw the pistol, and thought it was a revolver.
On the same day, perhaps, another witness saw plaintiff in a drug
store, with a pistol in his hand. He did not notice it particularly, but thought
it was a revolver.
On the evening of the same day, plaintiff was playing cards in a
saloon, when an intoxicated man came in, and plaintiff undertook to put him out.
They clenched and fell behind a screen. After the difficulty was over, the
saloon keeper found on the floor the cylinder of a pistol, but he saw plaintiff
with no pistol.
It is probable, from all the evidence, that the plaintiff was
carrying a pocket revolver.
It is submitted for the plaintiff that the act under which he was
convicted is in conflict with Article ii Amendments to the
Constitution of the United States, and sec. 5 of the
Declaration of Rights of the Constitution of 1874.
The act provides:
"That any person who shall wear or carry any pistol of any kind
whatever, or any dirk, butcher or Bowie knife, or sword or spear in a cane,
brass or metal knucks, or razor, as a weapon, shall be adjudged guilty of a
misdemeanor, etc., etc. Provided, that nothing herein contained shall
be so construed as to prohibit any person wearing or carrying any weapon
aforesaid on his own premises, or to prohibit persons traveling through the
country, carrying such weapons while on a journey with their baggage, or to
prohibit any officer of the law wearing or carrying such weapons when engaged
in the discharge of his official (p.457)duties; or any person summoned by such officer to
assist in the execution of any legal process, or any private person legally
authorized to execute any legal process to him directed." Sec.
1, act February 16th, 1875. (Pamph. 1874-5, p. 155.)
Article ii, amendments to the Constitution of the
United States, 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
Judge Story, commenting on this clause of the Constitution,
The importance of this article will scarcely be doubted, etc. The
militia is the natural defense of a free country against sudden foreign
invasion, domestic insurrection, and domestic usurpations of power by rulers.
It is against sound policy for a free people to keep up large military
establishments and standing armies in time of peace, both from the enormous
expenses with which they are attended, and the facile means which they afford
the ambitious and unprincipled rulers to subvert the government or trample
upon the rights of the people. The right of the citizens to keep and bear arms
has justly been considered as the palladium of the liberties of a republic,
since it offers a strong moral check against the usurpation and arbitrary
power of rulers, and will generally, even if these are successful in the first
instance, enable the people to resist and triumph over them." 2 Story on
the Const., sec. 1896-7.
Mr. Cooley remarks upon the same article:
"Among the other defenses to personal liberty should be mentioned
the right of the people to keep and bear arms. A standing army is peculiarly
obnoxious in any free government, etc. The alternative to a standing army is a
well regulated militia, but this cannot exist unless the people are trained to
bearing (p.458)arms. How far it is in the
power of the Legislature to regulate this right we shall not undertake to say,
as happily there has been very little occasion to discuss that subject by the
courts." Const. Lim., 350.
It is manifest from the language of the article, and from the
expressions of these learned commentators, that the arms which it guarantees
American citizens the right to keep and to bear, are such as are needful to, and
ordinarily used by a well regulated militia, and such as are necessary and
suitable to a free people, to enable them to resist oppression, prevent
usurpation, repel invasion, etc., etc.
This article, however, is a restraint upon federal, and not upon
State legislation. Andrews v. The State, 3 Heiskell
Barron v. City of Baltimore, 7 Peters, 243; Fox v. Ohio, 5 Howard, 434; Smith v.
Maryland, 18 id., 71; Withers v. Buckley et al,
20 id.; Twitchell v. Commonwealth, 7 Wallace,
Sec. 5, Art. ii, of the present Constitution of
this State, declares that:
"The citizens of this State shall have the right to keep and bear
arms for their common defense."
There was a similar clause in the Bill of Rights of
the Constitution of 1836, and in The State v.
Buzzard, 4 Ark., 18, this court held, in
effect, that it and the second article of the Amendments to the
Constitution of the United States had a common purpose, and that the act
prohibiting the wearing of concealed weapons was in conflict with neither of
them. See Gantt's Digest, sec. 1517.
In Aymett v. State, 2 Humph., 158, Judge Green
said: "As the object, for which the right to keep and bear arms is secured, is
of a general nature, to be exercised by the people in a body for their common
defense, so the arms--the right to keep which is secured--are such as are
usually employed in civil warfare, (p.459)and
constitute the ordinary military equipments. If the citizens have these arms in
their hands, they are prepared in the best possible manner to repel any
encroachments upon their rights, etc. *** The Legislature, therefore, have the
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, and would
not contribute to the common defense."
Mr. Bishop, treating of the provision of the Constitution of the
United States, which secures to the people the right to keep and bear arms,
says: "If we look to this question in the light of judicial reason, without the
aid of specific authority, we shall be led to the conclusion, that the provision
protects only the right to keep such arms as are used for purposes of war, in
distinction from those which are employed in quarrels and brawls and fights
between maddened individuals, since such, only, are properly known by the name
of arms, and such, only, are adapted to promote the security of a free State. In
like manner, the right to bear arms refers merely to the military way of using
them, not to their use in bravado and affray." 2 Crim. Law, sec.
By the Constitution of Tennessee (1870), "The citizens of this State
have a right to keep and bear arms for their common defense."
In Andrews v. The State, 3 Heiskell, 171, an act
prohibiting any person from carrying, publicly or privately, a dirk, sword-cane,
Spanish stiletto, belt or pocket pistol or revolver, with a provision for
exceptional cases, as in our act, was held to be constitutional.
Judge Freeman, who delivered the opinion of the court, after showing
that the object of the second article of the amendments to the Constitution of
the United States, and that of the clause of the Constitution of Tennessee above
copied, was the same, (p.460)said: "In order to
arrive at what is meant by this clause of the State Constitution, we must look
at the nature of the thing itself, the right to keep which is guaranteed. It is
'arms;' that is, such weapons as are properly designated as such, as the term is
understood in the popular language of the country, and such as are adapted to
the ends indicated above, that is, the efficiency of the citizen as a soldier,
when called on to make good the defense of a free people; and these arms he may
use as a citizen, in all the usual modes to which they are adapted, and common
to the country. What, then, is he protected in the right to keep and thus to
use? Not everything that may be useful for offense or defense, but what may
properly be included or understood under the title of 'arms,' taken in
connection with the fact that the citizen is to keep them, as a citizen. Such,
then, as are found to make up the usual arms of the citizen of the country, and
the use of which will properly train and render him efficient in defense of his
own liberties, as well as of the State. Under this head, with a knowledge of the
habits of our people, and of the arms in the use of which a soldier should be
trained, we hold that the rifle, of all descriptions, the shot gun, the musket
and repeater, are such arms, and that, under the Constitution, the right to keep
such arms cannot be infringed or forbidden by the Legislature. Their use,
however, to be subordinated to such regulations and limitations as are or may be
authorized by the law of the land, passed to subserve the general good, so as
not to infringe the right secured, and the necessary incidents to the exercise
of such rights."
The learned judge might well have added to his list of war arms, the
sword, though not such as are concealed in a cane.
By the word "repeater," we suppose the judge meant the army and navy
repeaters, which, in recent warfare, have very generally superseded the
old-fashioned holster, used as a weapon in the (p.461)battles of our forefathers. He certainly did not mean
the pocket revolver, for, in Page v. The State, 3 Heiskell,
198, the same court
held, that Page was properly convicted for carrying such pistol. Nicholson,
judge, who delivered the opinion of the court, said: "The evidence fully
establishes the fact that the pistol carried by Page (a pistol called a
revolver, about eight inches long) was not an arm for war purposes, and,
therefore, under the ruling of this court, in the case of Andrews v. The
State, the carrying of which the Legislature could constitutionally
Our act prohibits the carrying, as a weapon, "any pistol of any kind
whatever," with provisions for exceptional cases.
Pistol is from Pistola, a town in Italy, where pistols were
first made. A pistol is a small fire-arm, or the smallest fire-arm used,
intended to be fired from one hand, differing from a musket chiefly in size.
Pistols were introduced into England in the year 1521. Webster.
In the act, the pistol is associated, in the prohibited list of
weapons, with the dirk, butcher or Bowie knife, the sword or spear in a cane,
brass or metal knucks, and the razor.
From the company in which the pistol is placed, and the known public
mischief which the Legislature intended by the act to prevent, it is manifest
that the pistol intended to be proscribed is such as is usually carried in the
pocket, or of a size to be concealed about the person, and used in private
quarrels and brawls, and not such as is in ordinary use, and effective as a
weapon of war, and useful and necessary for "the common defense."
The indications in the evidence are, that the plaintiff in error was
carrying a pistol of that class or character intended to be prohibited by the
Legislature, and which we think may be prohibited, in the exercise of the police
power of the State without any infringement of the constitutional right of the
citizens of the State to keep and bear arms for their common defense.(p.462)
The only point made for the plaintiff in error by his counsel here,
is that the whole act is unconstitutional, and we think, when properly
construed, it is not in conflict with the Constitution, and that the judgment of
the court below should be affirmed.