From: kholder@WEBLEYWEB.COM ("Ken L. Holder") To: AZRKBA@asu.edu Subject: Re: John S. Goff's info for Rick D. Date: Fri, 06 Apr 2001 17:11:57 -0700
At 08:25 AM 4/6/01 -0700, you wrote: ><http://mix6.com/kielsky/ccw.html>http://mix6.com/kielsky/ccw.html
And there's also this:
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Arizona's Concealed Carry Law
Charles Curley
In the process of doing research on the firearms laws of the various states, I found that the Arizona Supreme Court had published an excellent minutes of that state's Constitutional convention.1 On the evening of November 25th, 1910, the Convention considered parts of what later became the Bill of Rights in the Arizona Constitution. The following debate occurred:
Mr. Chairman: Are there any objections or corrections to section 32?2
Mr. Baker: Mr. Chairman, I move to strike out all of section 32. I never in all my life found it necessary to carry a six shooter and I have passed through nearly all the scenes and experiences of this wild and unsettled country. Carrying arms is dangerous. it is a very dangerous thing to oneself and to one's associates and should not be permitted under any circumstances. I have seen lives lost and innocent blood spilled just through the carrying of arms, concealed weapons, under one's coat or shirt. It is most dangerous and vile, a practice that should never be permitted except in times of war and never in time of peace. Think of it: carrying a six shooter or a knife or some other terrible arm of defense, and then in a moment of heated passion using that weapon. I do not believe in it, and I move to strike out that section.
Mr. Webb: I second the motion for I agree with the gentleman from Maricopa that it is a pernicious thing and should not be included in this bill. I, too, in all my experience have never seen the time when it was necessary to carry concealed weapons except in time of Indian troubles, and I have had many and varied experiences, in cow camps. I have been in many places where some might deem it necessary to come armed but I did not, nor do I believe it necessary to do so now. We are no longer a frontier
1 John S. Groff, ed, The Records of the Arizona Consitutional Convention, Supreme Court of Arizona, Phoenix, AZ
2 The proposed language is: "The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men."
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country, and if we did not need arms in the early days of pionering in this country we do not need them now, and I second the motion.
Mr. Crutchfield: I move to amend by inserting after the word "impaired" in line 9, page 7, the following words: "But the legislature shall have the right to regulate the wearing of weapons to prevent crime."
Mr. Baker: That is all right and I second the motion.
Mr. Parsons: Mr. Chairman, I move to amend by striking out all of section 32 and substituting the following in lieu thereof: "The people shall have the right to bear arms for their safety and defense, but the legislature shall regulate the exercise of this right by law."
Mr. Feeney: I second that motion.
Mr. Chairman: the question comes up on the amendment offered by the gentleman from Cochise, Mr. Parsons, to strike out section 32, and insert in lieu thereof his amendment. Those in favor of this motion answer "aye;" opposed "nay." The motion is lost. The question now comes up on the amendment offered by Mr. Crutchfield to insert after the word "impaired" in line 9, page 7, the following words: "But the legislature shall have the right to regulate the wearing of weapons to prevent crime." Those in favor of the amendment say "aye;" those opposed "nay." The secretary shall call the roll.
Roll call showed 22 "ayes" and 23 "nays."
The motion is lost, and section 32 will stand approved as read unless there are other amendments. Are there any objections to section 33?...3
What observations might be drawn from this debate on the right to keep and bear arms? For one thing, there was obviously a considerable sentiment in the Arizona Territory that guns were unnecessary for self defense, and their carrying (at least concealed) should be banned. By way of perspective, this debate took place less than a year before New York enacted its infamous Sullivan law. Yet Mr. Baker, at least initially, was willing to allow the legislature to ban the possession and carrying of "six shooters." Obviously these people had not watched very much television.
There is a curious "holier-than-thou" attitude in Mr. Baker's speech. While he may legitimately never have seen the
3 Goff, ed, Records, page 677-678.
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need to carry a six shooter (and clearly he survived the decision long enough to take that attitude into the Constitutional convention), it is a far leap from that to wanting to ban others from doing so.
There is another curiosity that takes us a bit afield for a moment. When Kentucky approved its Constitution, its founding fathers had no language allowing the legislature to regulate the wearing of weapons. Subsequently, the legislature did so anyway, banning the carrying of firearms concealed.
The Kentucky courts overturned that legislation in no uncertain terms:
"For, in principle, there is no difference between a law prohibiting the wearing 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 was not only a part of the right that is secured by the constitution; it was the right entire and complete, as it existed at the time of the adoption of the constitution; and if any portion of that be impaired, immaterial how small the part may be, and immaterial the order of time at which it was done, it is equally forbidden by the constitution.4
However, those who opposed concealed carry had to get their way by amending the Kentucky Constitution. It now reads:
"All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ... Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General assembly to enact laws to prevent persons from carrying concealed weapons."5
It would seem, from the Kentucky experience, that a state constitution must explicitly allow the legislature to regulate or prohibit concealed carry for it to do either. Indeed, states which have that sort of language prohibit concealed carry or require permits (e.g: Colorado6).
4 Bliss v. Commonwealth, 12 Ky. (2 Litt.) 90, 92 and 93, 13 Am. Dec. 251 (1822)
5 Kentucky Constitution, I.
6 Colorado requires concealed carry permits. However, no sheriff will issue them, effectively banning concealed carry.
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Yet states which have no such provision also regulate (e.g: Wyoming7) or ban (e.g: Arizona) concealed carry. This is explained by something called the "police power". This is a vague concept which says that the state may do certain things regardless of whether they are in the Constitution or not because all governments have police powers.
Indeed, we see a federal police force, the Federal Bureau of Investigation, in spite of the lack of any police power clause in the United States Constitution.
But in Arizona, we clearly have a different situation. Not only is there no explicit clause allowing the legislature to regula the wearing of firearms, but there was an affirmative rejection of such a power by the Constitutional convention and no subsequent amendment to create such a power.
Can the state of Arizona have, via the police power, a power which the Constitutional convention refused to grant to it? To allow it such a power would make a mockery of the concept of enumerated power: the iea that the government has certain, enumerated, powers, and no others!
If the state may legislate on one matter in spite of a clear lack of constitutional power to do so, on what other matters may it also legislate without constitutional power to do so? Why, indeed, bother with a Constitution or a Bill of Rights at all? Why not say that the legislature may have any power it cares to arrogate to itself, and be done with it?
That same night, November 25, 1910, the Convention approved the following language: "A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government." Quite so. A recurrence to the concept of a limited government, a government of enumerated powers, requires the repeal of Arizona's concealed carry prohibition.
"The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called into question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons." Colo. Const. Article II, 13.
7 "The right of the citizens to bear arms in defense of themselves and of the state shall not be denied." Wyo. Const. Article I, 24.
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Charles Curley is the author of Polite Society, an unpublished compendium of state and federal firearms laws. He resides in Gillette, Wyoming, where he is a writer, a paralegal, a computer mechanic and a firearms instructor.
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Charles Curley Box 2071 Gillette, WY 82717-2071 307/682-5913
1558 Words
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