154 NAS HW I L L E:

[Aymette

vs.
The State.]

AYMETTE vs. THE STATE.

2,

which prohibits any person from wearing

of

The act 1837–8, ch. 137, sec.

1.

any bowie knife, Arkansas tooth-pick, weapon form, shape

a or

or

or

other knife
in

con
or

Arkansas tooth-pick under his clothes,

or

or

size resembling bowie knife

of

cealed about his person, does not conflict with the 26th section the first article
of

rights, securing the free white citizens the right keep and bear
of

the bill
to

to

arms for their common defence.

by

The arms, the right keep and bear which the constitution,
to
2.

secured
is
as

are such are usually employed civilized warfare, and constitute the ordinary
in

military equipment; the legislature have the power prohibit the keeping wear
or
to

ing weapons dangerous the citizens, and which are not

of

the peace and safety

to

usual in civilized warfare.

The right keep and bear arms for the common defence, great political
on is
to
3.

right. respects the citizens on the one hand, and the rulers the other; and
It

although this right must inviolably preserved, does not follow that the legis
be

it

lature prohibited passing laws regulating which these arms

in
is

from the manner

may employed.
be

At January term, 1840, Giles county,

of
of

the the circuit court

Judge Dillahunty presiding,
an

indictment was filed against William

Aymette. This indictment charged: 1st. That Aymette
on

the
 DECEMBER TERM, 1840. 155

[Aymette

vs.
The State.]

26th day June, 1839, the county Giles, “did wear cer

of

of
in

a
tain bowie knife under his clothes, and keep the same concealed
person, contrary the statute,” &c.
2d.

of
about his the form

to
the same day, &c., the said Aymette did wear certain
on
“That

a
other knife and weapon, form, shape and size resembling bowie

in

a
knife, and under the clothes Aymette,

of
him the said and concealed
about the person him,” &c.

of
The defendant pleaded not guilty, and the case was submitted
jury the October term, 1840, Judge Dillahunty presiding.
at
to
a

appeared that Aymette, during the sitting

of
It

the circuit court

June, 1839, Pulaski, Giles county, had fallen out with one
at
in

Hamilton, and that about 10 o'clock, P.M. he went

of
him

in

to
search
hotel, swearing
he

would have his heart's blood. He had bowie

a

of
knife concealed under his vest and suspended the waistband

to
took out occasionally and brandished
he

his breeches, which

in
his
put
of

He was proceeded place

to
hand. out the hotel and from
place Hamilton, and occasionally exhibited his knife.
of
in

search
The jury, under the charge the court, returned
of

of
verdict

a
guilty.
judgment, but the
of

The defendant moved the court arrest

in

motion was overruled and the defendant sentenced

to
three months
imprisonment the common jail Giles county, and pay fine
of
in

to

a
From this judgment defend
of

two hundred dollars the State.

to

ant appealed error.

in

Washington and Ewing, for Aymette.

Attorney General, for the State.

GREEN, delivered the opinion

of

the court.
J.

The plaintiff error was convicted the Giles circuit court,

in
in

for wearing bowie knife concealed under his clothes, under the
a

or 2,

1837–8, ch. 137, sec. which provides, “That any person

of

act
if

shall wear any bowie knife, Arkansas tooth-pick,

a or

other knife
weapon, that shall form, shape
or or

or

bowie knife
in

size resemble
tooth-pick, the same con
or

Arkansas under his clothes, keep

cealed about his person, such person shall guilty
be be

of

misde
a

meanor, and upon conviction thereof, shall sum not

in in

fined
a

imprisoned
be

less than two hundred dollars, and shall the coun

jail, not less than three months and not more than six months.”
ty
156 N A SHW I L L E:

vs.
[Aymette The State.]

of
now insisted that the above act the legislature uncon

It
is

is
stitutional, and therefore the judgment this

in
case should have been

º
arrested.

In this State, containing

of

of
the first article
the Constitution

a
rights, 26,

of
declaration sec. declared, “That the free white

it
to is
State, right
of
men this have keep and bear arms for their

a
common defence.”

This declaration, insisted, gives

every man the right arm

to

or to
it
is
any manner
may

he
himself choose, however unusual dan
in

may employ; and thus armed, appear

he
gerous the weapons

to
may think proper, without molestation hindrance,
he

or
wherever

by
and that any law regulating his social conduct, restraining the
any weapon regulating the manner

be
or
of

which

in
use shall

it
carried, beyond the legislative competency enact, and

of to
void.
is

is
just

of
In

order precise meaning

to

have and idea the the

a
of

the constitution under consideration, will be useful

to
clause

it
the history
of

of
things our ancestors, and thus
at

look
in

the state
its

comprehend the reason

of

introduction into our constitution.

By the act

3,
22 and 23, Car. 2d, ch. 25, sec. provided
of

it
is
no

the yearly value £100,

of

person who has not lands

of
that
other than the son and heir apparent other per
an

or
esquire,
of

higher degree, &c., shall gun, &c. By

be

keep
to
of

son allowed
a

this act, persons keep

of

certain condition life were allowed

in

to
a

arms, while large proportion the people were entirely

of

disarm
a

by

ed. But King James the 2d, his own arbitrary power, and con
trary law, disarmed the Protestant population, and quartered
to

his Catholic soldiers among the people. This, together with other
by

he

abuses, produced the revolution which was compelled ab

to

England. William and Mary succeeded him,

of

dicate the throne

and the first year their reign, Parliament passed act recapitu
an
of
in

lating the abuses which existed during the former reign, and de
certain rights which they insisted upon
of

as

clared the existence

their undoubted privileges. Among these abuses, they say,
in

sec.
of 5,

kept “standing army

he

within the kingdom

in

that had time

a

Parliament, and quartered soldiers con

of

peace without consent

trary law.” Sec. “By causing several good subjects, being
to

6.

Protestants,
be

disarmed, when Papists were

at
to

the same time

employed contrary law.”
to

both armed and

rights that follows, sec.
of
In

the declaration declares, that

7

“the subjects which are Protestants may have arms for their de
 DECEMBER TERM, 1840. 157

[Aymette

vs.
The State.]

by
fence, suitable their condition and allowed law.” This de

as
to
claration, although asserts the right

of
the Protestants

to
have

it
arms, does not extend the privilege beyond the terms provided

in
“They may have arms,”

to.
of
the act Charles 2d, before referred
says the Parliament, “suitable their condition, and allowed by

as
to
The law, we have seen, only allowed persons

of of
law.” certain

a
rank have arms, and consequently right had
to

this declaration
such only. these facts, and

to
was

in
of to

to
reference reference

It
English law,

of
this state the that the second section the amend
the United States was incorporated

of
the Constitution
to

ments
into that instrument. declares that “a well regulated militia
It
security free State, the right the peo

of
being necessary

of
to

the

a
ple keep and bear arms shall not infringed.”
to

be
In the same view,

of
the section under consideration our own
rights
of

bill was adopted.

The evil that was produced by disarming the people

in
the time
James the second, was, that the King, by
of

of
means standing

a
army, quartered among the people, was able overawe them,
and compel them the most arbitrary, cruel and illegal to
to

to

submit
measures. Whereas, the people had retained their arms, they
if
by

would have been able, just and proper resistance those op

to
to a

pressive measures, either have caused the King respect their

to

rights,
he
or

surrender (as was eventually compelled

to
do) the
government into other hands. No private defence was contem
would have availed any thing.
or

plated the subjects had been

If

armed, they could have resisted the payment

or
excessive fines,
of

illegal and cruel punishments. When, therefore,

of

the infliction
Parliament says, that “subjects which are Protestants, may have
allowed by
as

arms for their defence, suitable

to

their condition
law,” does not mean for private defence, but being armed, they
it

up

may defend their just rights, and compel their

as

body, rise
to
to a

right
of

rulers respect the laws. This declaration

in

made
is
of,

the fact before complained that the people had

to

reference
been disarmed, and soldiers had been quartered among them con
trary law. The complaint was against the government. The
to

grievances which they were thus forced submit, were for the
of to

to

most part public character, and could have been redressed only
a

up
by

the people rising for their common defence vindicate their

to

rights.
rights, was adopt
of

The section under consideration, our bill

in

20
15S N A SH VILLE:
[Aymette

vs.
The State.]

this point

ed
these historical facts, and

of
view its

in

in
to
reference
language most appropriate and expressive. Its words are, “The

is
right

of
free white men this State have keep and bear arms for

to
a
It,
sure, asserts the right much more

be
their common defence.”

to
broadly than the statute first William and Mary. For the right

to of

of
there asserted, subject

in
the disabilities contained the act

is
Charles the second. There lords and esquires, and their sons and
persons, whose yearly income from land amounted

to
one hundred
pounds, were keep arms. But, with us,
of

to
suitable condition
every free white man condition; and, therefore, every
of
suitableis
free white man may keep and bear arms. But keep and bear arms

to
for

the history the subject had left doubt the object

of
what?

in
If

for which the right secured, the words that are employed must
is

completely remove that doubt. declared that they may keep

It
and bear arms for their common defence. The word “common” here is
used, means according Webster; Belonging equally
to

to
more
1.

many indefinitely. Belonging

or

than one, the public.

2.
to

to
Public. The object then, for which
4.

General. Universal.
3.

5.

the right
of

keeping and bearing arms secured,

of
the defence
is

is
the public. The free white men may keep arms protect the
public liberty, keep awe those who are power, main to
to

to
and
in

in
of

tain the supremacy the laws and the constitution. The words
“bear arms” too, have reference their military use, and were
to

mean wearing them about the person part

of
not employed
as
to

As the object for which the right keep and bear arms
to

the dress.
by

general and public nature,

be
of

secured,
to

exercised the
is
is

the arms, the right

so

people body, for their common defence,

in
a

civil
as

keep which secured, are such are usually employed

to

in
is

ized warfare, and that constitute the ordinary military equipment.

their hands, they are prepared
If

in

in

the citizens have these arms

possible repel any encroachments upon their
to

the best manner

by

rights authority. They need not, for such purpose,

in

those
a

private
of

those weapons
which are usually employed
in

the use
broils, and which are efficient only
of
in

the hands the robber and

war. They
in be

the assassin. These weapons would

in

useless
be

of

could not employed advantageously the common defence

The right keep and bear them, not, therefore,
to

the citizens.
is

secured by the constitution.

inventions for inflicting death may
in be

imagined,
A

thousand
which might come under the appellation figura
an
of

“arm” the
 DEC E M BER TERM, 1840. 159

[Aymette

vs.
The State.]

by

be
in no
in of
tive use that term, and which could possibility rendered
war,

or
the least degree aid

in
effectual the common defence.
Would constitutional provision,

be
not

to
absurd contend that

it

a
securing their common defence, should

of
to
the citizens the means
be

weapons, although they manifestly

to

to
construed extend such
that end, merely because,

of
to
would not contribute

in
the hands
assassin, they might take away life?
an

The legislature, therefore, have right prohibit the wearing,

to
a
citi

of
or

keeping weapons dangerous the peace and safety

to
the
civilized warfare,

or
zens, and which are not usual would not

in
contribute The right keep
to

to
the common defence. and bear
arms for the common defence great political right. respects

It
is
a
the citizens on the one hand and the rulers on the other. And al
though this right must does not fol
inviolably preserved, yet,
be

it
low that the legislature prohibited
altogether from passing laws
in is

regulating the manner which these arms may employed.

be
no
To hold that the legislature could pass law upon this subject,
by which preserve the public peace, and protect our citizens from
to

the terror, which arms might

of
wanton and unusual exhibition
a

by
or

produce, their lives from being endangered desperadoes with

concealed arms, would pervert great political right
to be
to

to
the
a

infinitely greater
to of

purposes, and social evil,

of

worst make
it
a

a
extent society, than would result from abandoning the right
itself.
of

of

Suppose suit the whim

to

to

were set ruffians enter the

it

the performance, with drawn swords, guns

or of
in

theatre the midst

and fixed bayonets, enter the church the same manner,
in
to

during service, audience; be

of

the terror and this were

to

of to

the
come habitual; can be, that beyond the power
be

would the
it
it

Surely
an

legislature pass laws remedy such evil?

to

to

If

not.
this way cannot prohibited, the power
be
of

in

all in

the use arms

is
it
up

fifty armed ruffians other pub

in be be lic of

the churches, and

to

break
assemblages, where they might lawfully come, and there would
But we are perfectly satisfied that remedy might
no

remedy.
a

applied. The convention securing the public political right

in

all

question, did not intend take away from the legislature

to

power
of

regulating the social relations the citizens upon this

of

subject. true, somewhat difficult draw the precise

to
It

it
is

is

line where legislation must cease, and where the political right be
gins, but case where the right legisla
of

not difficult
to

state
it
is

a
160 N A SH VILLE:
[Aymette

rs.
The State.]

tion would exist. The citizens have the unqualified right

to
keep the
weapon, being being in

as
the character before described,

of
it
by
provision. right

of
this But the not that

to
tended bear arms

is
unqualified character. The citizens may bear them for the common

by

in
does not follow, that they may

be

an
defence; but borne

it
dividual, merely terrify the people, private as

or
for purposes

to

of
And cir which they are worn, and

as
the manner

in
sassination.
cumstances under which they are carried, indicate every man,

to
the purpose the wearer, the legislature may prohibit such
of

wearing by persons en

be
of

as
manner would never

to
resorted
gaged
in

the common defence.

We Kentucky,

of
appeals

of
are aware that the court

in
the case
Rep.
of

Bliss vs. The Commonwealth, Littel's 90, has decided

2
an

the one now under con

of

that act their legislature, similar

to
sideration, unconstitutional and void. We have great respect
is

for the court by whom that decision was made, but we cannot con
cur their reasoning.
in

We think the view the subject which the opinion

of

of
the court
just

of
that case takes, far too limited for construction
in

the
is

meaning they
It of

of

the clause the constitution had under consid

not precisely our constitution, never
of

eration. the words

in
of is

theless, the same general import. The words are, that “the
it
is

right
of

themselves, and the

to
of

the citizens bear arms

in

defence
State, shall not
be

questioned.”
part this opinion, we have recurred the cir
In

of

the former
to

cumstances under which similar provision was adopted Eng

in
a

its

land, and have thence deduced the reason adoption, and con
of

sequently have seen the object view, when the right keep
in

to

and bear arms was secured. All these considerations are left out
view, the case referred to, and the court confine themselves
of

to in

entirely law pro

of

the consideration the distinction between

a

hibiting the right, and law merely regulating the manner which
in
a

arms may worn. They say, there can

be

be
no

difference between
law prohibiting the wearing concealed weapons, and one pro
a

hibiting the wearing them openly.

We think there
In

things,
of

manifest distinction. the nature

is
a

they were not allowed bear arms openly, they could not bear
to
if

their defence of the State at all. To bear arms

in

in

them defence
the State, employ them war, em
of

as

arms are usually

in
to
is
by

swords,
of

ployed civilized nations. The arms, consisting mus

 1) ECEMBER TERM, 1840. 161

[Aymette

vs.
The State.]
kets, rifles, &c., must necessarily borne openly; pro

be

so
that

a
bear them openly, would the right

be

of
hibition alto

to
denial

a
gether. their constitution, the right
And de

in

in in
as

to to
bear arms
fence of of
themselves, coupled with the right bear them de

is
State, we must understand the expressions meaning

as
fence the
the same thing, and relating public, and not private;

as

to

to
the
common, and not the individual defence.
But prohibition spear concealed cane, would

in

in
wear
to
a

in a
no

degree circumscribe the right

of
to
bear arms defence the
State; for this weapon could

no

is as its
degree contribute defence,

in

if, to
army. And,
be

an
and would worse than useless

in
above

is
suggested, the wearing arms

of
the citizens,

to
defence in taken
mean, the common defence, the same observations apply.
To make this view the case still more clear, we may remark,
of

that the phrase, “bear arms,” used the Kentucky constitution in

is

our own, and implies, has already been suggested,

as

as

well
in
as

military rights provides,

of

to of
their use. The 28th section our bill
bear arms, pro
be
he no

compelled
of

“that citizen this State shall

by
will pay
be
an

equivalent, law.” Here

to

vided ascertained

no
we know that the phrase has military sense, and other; and
in a

we must infer that the 26th section,

in

used the same sense

it
is

the citizen the right

to

which secures the

in
A
bear arms. man
to

pursuit deer, elk and buffaloes, might carry his rifle every day,
of

for forty years, and, yet, him, that

be

he
of

would never said had

it

arms, private
be

borne much less could said, that citizen bears

or it

pistol concealed under his clothes,

he

arms, because has dirk

a

So that, with deference, we think the argu

or

spear
in

cane.
a

to,
of

ment the court even upon the question

in

the case referred

it

has debated, defective and inconclusive.

is

Simpson vs. The State, 5th Yer. Rep. 356, Judge

In

of

the case
White, delivering the opinion the court, makes use
of
of
in

the
general expression, that “by this clause constitution, ex
an
in

the
all

press power given, and secured the State

in
to

the free citizens

is

keep and bear arms for their defence, without any qualification
to

-
whatever, their kind and nature.”
as
to

no

But that case, question the meaning this provision

of
in

as
to

by

court, and the ex

or

the constitution arose,

in

was decided the

only the judge who delivered
an

pression
to of

incidental remark
is

the opinion, and, therefore, weight.

of no

entitled
is

We think, therefore, that upon either the grounds assumed

in
162 N A SH VILL E:
[Knott, Hicks,

vs.
et als. als.]

et
this opinion, the legislature had the right pass the law under

to
which the plaintiff Let the judgment

be
error was convicted.

in
affirmed.
 O R

'I'
H. E. P.

S
CASES ARGUEl) AND DETERMINED

N
1
THE SUPREME COURT OF TENNESSEE,

UR IN
T
D

R
A
H

S
E

E
1840-41.

BY WEST. H. III: Y'S,

M
U

E
H

STATE REPORTER.

II.
M
O

E
L
V

|
2

M
U
O
C

B
A
L

I.

A. M. J. B. OSB H, STATE PRINTERs.

&

R
O

G
U

2.
4
S
|