Cite as City of Salina v. Blaksley, 72 Kan. 230 (1905)

                  CITY OF SALINA v. BLAKSLEY. 

            (Supreme Court of Kansas. Nov. 11, 1905.)

CONSTITUTIONAL LAW-RIGHT TO BEAR ARMS.
     Section 4 of the Bill of Rights, which provides that "the
people have the right to bear arms for their defense and security,"
is a limitation on legislative power to enact laws prohibiting the
bearing of arms in the militia, or any other military organization
provided for by law, but is not a limitation on legislative power
to enact laws prohibiting and punishing the promiscuous carrying of
arms or other deadly weapons.

     (Syllabus by the Court.)

     Appeal from District Court, Salina County; R. R. Rees, Judge.

     James Blaksley was convicted of carrying a pistol within the
city of Salina, and appeals. Affirmed.

     David Ritchie, for appellant R. A. Lovitt, for appellee.

     GREENE, J. James Blaksley was convicted in the police court of
the city of Salina, a city of the second class, of carrying a
revolving pistol within the city while under the influence of
intoxicating liquor. He appealed to the district court, where he
was again convicted, and this proceeding is prosecuted to reverse
the judgment of the latter court.

     The question presented is the constitutionality of section
1003 of the General Statutes of 1901, which reads: "The council may
prohibit and punish the carrying of firearms or other deadly
weapons, concealed or otherwise, and may arrest and imprison, fine
or set at work all vagrants and persons found in said city without
visible means of support, or some legitimate business."

     Section 4 of the Bill of Rights is as follows: "The people
have the right to bear arms for their defense and security; but
standing armies, in time of peace, are dangerous to liberty, and
shall not be tolerated, and the military shall be in strict
subordination to the civil power." The contention is that this
section of the Bill of Rights is a constitutional inhibition upon
the power of the Legislature to prohibit the individual from having
and carrying arms, and that section 1003 of the General Statutes of
1901 is an attempt to deprive him of the right guarantied by the
Bill of Rights, and is therefore unconstitutional and void. The
power of the Legislature to prohibit or regulate the carrying of
deadly weapons has been the subject of much dispute in the courts.
The views expressed in the decisions are not uniform, and the
reasonings of the different courts vary. It has, however, been
generally held that the Legislatures can regulate the mode of
carrying deadly weapons, provided they are not such as are
ordinarily used in civilized warfare. To this view, there is a
notable exception in the early case of Bliss v. Commonwealth, 2
Litt. (Ky.) 90, 13 Am. Dec. 251, where it was held, under a
constitutional provision similar to ours, that the act of the
Legislature prohibiting the carrying of concealed deadly weapons
was void, and that the right of the citizen to own and carry arms
was protected by the Constitution, and could not be taken away or
regulated.  While this decision has frequently been referred to by
the courts of other states, it has never been followed. The same
principle was announced in Idaho in re Brickey, 8 Idaho. 597, 70
Pac. 609, 101 Am. St. Rep. 215. but no reference is made to Bliss
v. Commonwealth, nor to any other authority in support of the
decision. In view of the disagreements in the reasonings of the
different courts by which they reached conflicting conclusions, we
prefer to treat the question as an original one.

     The provision in section 4 of the Bill of Rights "that the
people have the right to bear arms for their defense and security"
refers to the people as a collective body. It was the safety and
security of society that was being considered when this provision
was put into our Constitution. It is followed immediately by the
declaration that standing armies in time of peace are dangerous to
liberty and should not be tolerated. and that "the military shall
be in strict subordination to the civil power." It deals
exclusively with the military. Individual rights are not considered
in this section. The manner in which the people shall exercise this
right of bearing arms for the defense and security of the people is
found in article 8 of the Constitution, which authorizes the
organizing, equipping, and disciplining of the militia, which shall
be composed of "able-bodied male citizens between the ages of
twenty-one and forty-five years. * * *" The militia is essentially
the people's army, and their defense and security in time of peace.
There are no other provisions made for the military protection and
security of the people in time of peace. In the absence of
constitutional or legislative authority, no person has the right to
assume such duty. In some of the states where it has been held,
under similar provisions, that the citizen has the right preserved
by the Constitution to carry such arms as are ordinarily used in
civilized warfare, it is placed on the ground that it was intended
that the people would thereby become accustomed to handling and
using such arms, so that in case of an emergency they would be more
or less prepared for the duties of a soldier. The weakness of this
argument lies in the fact that in nearly every state in the Union
there are provisions for organizing and drilling state militia in
sufficient numbers to meet any such emergency.

     That the provision in question applies only to the right to
bear arms as a member of the state militia, or some other military
organization provided for by law, is also apparent from the second
amendment to the federal Constitution, which says: "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." Here, also, the right of the people to keep and bear
arms for their security is preserved, and the manner of bearing
them for such purpose is clearly indicated to be as a member of a
well-regulated militia, or some other military organization
provided for by law. Mr. Bishop, in his work on Statutory Crimes,
in treating of this provision, which is found in almost every state
Constitution, says, in section 793: "In reason, the keeping and
bearing of arms as reference only to war and possibly also to
insurrections wherein the forms of war are, as far as practicable
observed" Commonwealth v. Murphy (Mass.) 44 N.E. 138, 32 L. R. A.
606, strongly supports the position we have taken. The defendant
was convicted of being a member of an independent organization
which was drilling and parading with guns. The guns, however, had
been intentionally made so defective as to be incapable of being
discharged. The prosecution was had under a statute which provided
that: "No body of men whatsoever, other than the regularly
organized corps of the militia [and certain other designated
organizations], shall associate themselves together at any time as
a company or organization, for drill or parade with fire-arms, or
maintain an armory in any city or town of the commonwealth. * * *."

     On the trial the defendant invoked the provisions of the
Massachusetts Bill of Rights, "the people have a right to keep and
bear arms for the common defense," in support of his contention
that he had the right to bear arms. The court said: "This view
cannot be supported. The right to keep and bear arms for the common
defense does not include the right to associate together as a
military organization, or to drill and parade with arms in cities
or towns, unless authorized to do so by law.  This is a matter
affecting the public security, quiet, and good order, and it is
within the police power of the legislature to regulate the bearing
of arms, so as to forbid such unauthorized drills and parades." The
defendant was not a member of an organized militia, nor of any
other military organization provided for by law, and was therefore
not within the provision of the Bill of Rights, and was not
protected by its terms.

     The judgment is affirmed. All the Justices concurring.