
    NEW YORK CITY MAGISTRATES’ COURT—FIRST DIVISION—SECOND DISTRICT,
    December, 1911.
    THE PEOPLE v. SADIE RYAN.
    (1.) Right to bear arms—Penal Law, § 1897—Sullivan Pistol Law.
    Defendant had a revolver containing four loaded shells in her trunk, in examining which the revolver was accidentally fired and the policeman who'heard the report, saw defendant in her own premises with the revolver in her hand and arrested her. Held, that the Penal Law, § 1897, is a police measure, relates to possession of a fire arm that may be concealed upon the person, without first having procured a permit to possess it and is constitutional and reasonable and the defendant must be held for trial.
    (2.) Same—Police power.
    That no State shall be restricted in its right to exercise its police powers in matters that concern the regulation of the manufacture, sale and possession of fire arms.
    
      Charles S. Whitman, District Attorney (L. S. Breckenbridge, Assistant District Attorney, of counsel), for plaintiff.
    
      Michael A. Bofrano and Cerard J. Cuoco, for defendant.
   Freschi, City Magistrate:

Ait the examination on the complaint charging the defendant, Sadie Ryan, with violating section 1897 of the Penal Laws (popularly known as the Sullivan Pistol Law), counsel for the defendant admitted the facts alleged, that on the date mentioned in the complaint, the defendant resided in the city and county of New York, and that at that time she had in her actual physical possession a firearm, to wit, a revolver, containing four shells loaded with powder and ball, and one shell that had been exploded, without having first procured a permit to possess such-pistol.

' It seems that defendant in examining a trunk in her home found it contained a loaded revolver, which was accidentally fired and that when the policeman, whose attention was attracted by the report, arrived on the scene and saw the defendant in her own premises with the revolver in her hand he arrested her.

The defendant now moves to dismiss the complaint on the ground that it charges no violation of law since, as is claimed, any law which abridges the right to bear firearms is unconstitutional and void.

The motion of the defendant must be denied.

• Frequent reference has been made to the United States Constitution on the theory that it grants “ the right of the people to keep and bear arms unrestricted.” Nothing is further from the truth.

The second amendment of the Federal Constitution reads as follows:

“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 amendment, it has been held, is not a limitation on the powers of the State (Federal Statutes, annotated, vol. 9, p. 247, and cases there cited). The infringement referred to as being prohibited is such as Congress might enact. To the State is left the power to preserve its own security and to legislate in the matter of bearing firearms.

In the Federal Statutes (annotated) we find it stated that the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons. Such a State statute is a police measure, prohibiting only a certain mode of bearing arms which is found dangerous to the peace of society. (State v. Jamel, 13 La. Ann. 399; State v. Buzzard, 4 Ark. 18; Nunn v. State, 1 Ga. 243. See also State v. Chandler, 5 La. Ann. 489 ; English v. State, 35 Tex. 475; Cockrum v. State, 24 Tex. 394.)

This provision of the law of the land, for such is the Constitution, is in effect a restriction on the powers of the national government, and that alone Congress may in no wise abridge or restrict the right to bear arms. (United States v. Cruikshank [1875], 92 U. S. 553.)

It must he perfectly plain that no State shall be restricted in its right to exercise its police powers in matters that concern the regulation of the manufacture, sale and possession of firearms.

The statute under consideration forbids any person having in his possession a firearm of the size that may be concealed, upon the person without first having procured a permit to possess it. This is merely a regulation as to how and in what manner one may keep or bear firearms of the character described.. The mutter concerns the State alone and its legislation in the premises is, in my opinion, constitutional and reasonable.

I must hold the defendant for trial for the Court of Special Sessions.

NOTE ON THE RIGHT TO BEAR ARMS.

GENERALLY.

Statutes are presumed to be constitutional. Roosevelt v. Goddard, 52 Barb. 533; People v. Durston, 119 N. Y. 569.

The States have the power to control and regulate the organization,, drilling and parading of military bodies and associations, except whera they are authorized by the militia laws of the United States. Presser v. The People, 116 U. S. 252.

The government of the United States, although it is within the scope? of its powers supreme and beyond the States, can neither grant nor secure to its citizens rights or privileges which are not expressly or by implication placed under its jurisdiction. All that cannot be so granted. or so secured are left to the exclusive protection of the State. U. S. v. Cruikshank, 92 U. S. 542.

Laws punishing the carrying of “ concealed weapons ” held not to be unconstitutional. Hill v. State, 53 Ga. 572; Wright v. Commonwealth, 77 Pa. St. 470; Chatteaux v. State, 52 Ala. 388; Cooley on Constitutional Limitations, section 350 note.

The Constitution of the United States was intended to regulate the general political interests of the nation * * * but never to- regulate the internal policy of the individual States. Murphy v. People, 2 Cow. 815.

To the same effect. Fife v. State, 31 Ark. 455; Andrews v. State, 3 Heick (Tenn.) 179.

In which acts prohibiting the carrying of pistols, dirks, and bowie knives are held constitutional.

.CONSTITUTIONAL PROVISIONS.

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. U. S. Constitution, Article II of the Amendments.

* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States * * ' *. U. S. Constitution, XIV Amendment, Sec. 1.

State Militia. Section 1. All able-bodied male citizens between the ages of eighteen and forty-five years, who are residents of the State, shall constitute the militia, subject, however, to such exemptions as are made, or may be hereafter' created by the laws of the United States, or by the legislature of this State. New York Constitution, Article XI, Sec. I;

INTERPRETATIONS THEREOF.

“The right of the whole people * * * and not the militia only * * * shall not be infringed * * * Lexington, Concord, Camden, River Raisin, Sandusky and the laurel crowned field of New Orleans plead eloquently for this interpretation.” Mann v. State, 1 Kelly (Ga.) 251.

Question of whether a State can constitutionally provide for the enrollment in the militia of any persons other than those enumerated in the Act of Congress of May, 1792, decided in the negative, and the justices go on to say:

“Nor is this question in our opinion, affected by the second article of -the amendments of the Constitution, of the following tenor * * * This, like similar provisions in our own declaration of rights, declares a great general right, leaving it for other more specific constitutional provision, or to legislation to provide for the preservation and practical security of such right, and for influencing and governing the judgment and conscience of all legislators and magistrates, who are thus required to recognize and respect such rights.” Opinion of the Justices, 14 Gray (Mass.) 620;

Citizens of the United States have no right to associate together to drill or parade with arms, independent of any Act of Congress or State law, within the protection of the first section of the Fourteenth Amendment to the Constitution. Presser v. People, 116 U. S. 252.

The second amendment held included among those amendments held restrictive upon the powers of the general government only, and applicable to the proceedings under the authority or laws of the United States * * * never intended to limit the powers of the State, or to control the proceedings of State courts. Jackson v. Wood, 2 Cowen, 818.

All the amendments adopted by the Federal Congress at its first session, and afterwards sanctioned by the requisite number of States, held to be intended to be restrictive upon the government of the United States and upon its officers exclusively. Livingston v. New York, 8 Wend. 100.

The second amendment to the Constitution is a limitation only upon the power of Congress and the National government, and not upon that of the States. Presser v. People, 116 U. S. 252.

The provision of the Federal Constitution securing the right to keep and bear arms protects only the right to keep such arms as are used for the purpose of war in distinction from those which are employed in quarrels and broils 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. English v. State, 35 Tex. 476.

The fifth and sixth sections of article XI of the Military Code of Illinois, which forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities or towns unless authorized by law, are not in conflict with the Constitution of the United States. Presser v. People, 116 U. S. 252.

The right of the people to keep and bear arms is not a right granted by the Constitution, neither is it in any manner dependent upon that instrument. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government, leaving the people to look for their protection against any violation by their fellow citizens of the rights it recognizes to what is called in New York v. Miln (11 Pet. 139), the “powers which relate to merely municipal legislation, or what was perhaps more properly called internal police,” not surrendered or restrained by the Constitution of the United States. U. S. v. Cruikshank, 92 U. S. 542.  