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[1] In 1910, section 1897 of the Penal Law, founded in article 172 entitled "Public Safety," provided that:

"A person who attempts to use against another, or who carries, or possesses any instrument or weapon of the kind commonly known as a slungshot, billy, sand club or metal knuckles, or who with intent to use the same against another carries or possesses a dagger, dirk or dangerous knife is guilty of a felony. Any person under the age of sixteen years, who shall have, carry or have in his possession in any public place any of the articles named or described in the last section which it is forbidden therein to offer, sell, loan, lease or give to him, shall be guilty of a misdemeanor. Any person over the age of sixteen years, who shall have or carry concealed upon his person in any city, village or town of this state, any pistol, revolver or other firearm without a written license therefor, theretofore issued to him by a police magistrate of such city or village or by a justice of the peace of such town, or in such manner as may be prescribed by ordinance of such city, village or town shall be guilty of a misdemeanor. No person not a resident of the United States, shall have or carry firearms or dangerous weapons in any public place at any time. This section shall not apply to the regular and ordinary transportation of firearms as merchandise, nor to sheriffs, policemen or to other duly appointed peace officers, nor to duly authorized military or civil organizations when parading, nor to the members thereof when going to and from the places of meeting of their respective organizations."

This section was amended by chapter 195 of the Laws of 1911. The first paragraph was amended by adding to the weapons enumerated. The third and fourth paragraphs were amended by raising the offense from a misdemeanor to a felony in each case. There was inserted between the second and third paragraphs, as the section then existed, the following:

"Any person over the age of sixteen years, who shall have in his possession in any city, village or town of this state, any pistol, revolver or other firearm of a size which may be concealed upon the person, without a written license therefor, issued to him by a police magistrate of such city or village, or by a justice of the peace of such town, or in such manner as may be prescribed by ordinance in such city, village or town, shall be guilty of a misdemeanor."

Evidently the Legislature intended to define, and provide punishment for, a different offense from any that had theretofore been covered by the section. It was inserted immediately before a paragraph which provided that any person over the age of 16 years who shall have or carry concealed upon his person a pistol without a license should be guilty of a felony; and it had used in two of the other paragraphs of the same section the words "who shall have or carry," and in the other "who carries or possesses." But when it came to amend by inserting this entirely new provision in the center of the section the wording of which was clear and before the Legislature for amendment, it left out the word "carries" which appeared in each of the other paragraphs, and provided that:

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"Any person over the age of sixteen years who shall have in his possession any pistol of a size which may be concealed upon the person, without a written license therefor, shall be guilty of a misdemeanor."

The learned court at Special Term has limited the language of the paragraph added to the section by, in effect, writing into the language thereof words which the Legislature left out, so that he makes it read, any person who shall carry or have in his physical possession, any pistol which may be concealed upon the person, shall be guilty of a misdemeanor. As the following clause already read that any person who shall have or carry concealed upon his person a pistol shall be guilty of a felony, this construction would make the offense a felony or a misdemeanor, depending upon whether the pistol should be carried upon the person concealed, or not; and the sole effect of the act, which was passed, after considerable public discussion, as a forward step in an attempt to limit crimes of violence, would be to provide against the open carrying of pistols which were of a size to be concealed an utterly unreasonable conclusion, in view of the fact that there was no evil of that kind to be protected against and that such a remedy for the real evil that did exist would be inapplicable and inefficient.

[2] The legislation must be interpreted in view of the preceding condition of the law and the evil aimed at. The language itself, “a pistol of a size which may be concealed upon the person," indicated that the Legislature intended exactly what it said, to prohibit a person at any time and in any place, within a city, village, or town, to have such a pistol in his possession without the permit required.

As bearing upon the intention of the Legislature, it is worthy of notice that said chapter 195 of the Laws of 1911, added to article 172 of the Penal Law an entirely new section, as follows:

"Sec. 1914. Sale of pistols, revolvers and other firearms. Every person selling a pistol, revolver or other firearm of a size which may be concealed upon the person, whether such seller is a retail dealer, pawnbroker or otherwise, shall keep a register in which shall be entered at the time of sale, the date of sale, name, age, occupation and residence of every purchaser of such a pistol, revolver or other firearm, together with the caliber, make, model, manufacturer's number or other mark of identification on such pistol, revolver or other firearm. Such person shall also, before delivering the same to the purchaser, require such purchaser to produce a permit for possessing or carrying the same as required by law, and shall also enter in such register the date of such permit, the number thereon, if any, and the name of the magistrate or other officer by whom the same was issued. Every person who shall fail to keep a register and to enter therein the facts required by this section, or who shall fail to exact the production of a permit to possess or carry such pistol, revolver or other firearm, if such permit is required by law, shall be guilty of a misdemeanor. Such register shall be open at all reasonable hours for the inspection of any peace officer. Every person becoming the lawful possessor of such a pistol, revolver or other firearm, who shall sell, give or transfer the same to another person without first notifying the police authorities, shall be guilty of a misdemeanor. This section shall not apply to wholesale dealers."

In People ex rel. Brown v. Woodruff, 32 N. Y. at page 364, the court said:

"It is always competent for the Legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain and obvious meaning of the act rather than to speculate upon what might have been the views of the Legislature in the emergency which may have arrived."

In Tompkins v. Hunter, 149 N. Y. 117, at page 122, 43 N. E. 532, at page 534, the court said:

"In construing statutes it is a well-established rule that resort must be had to the natural significance that the words imply, and, if they have a definite meaning which involes no absurdity or contradiction, there is no room for construction, and courts have no right to add or take away from that meaning. Newell v. People, 7 N. Y. 9; McCluskey v. Cromwell, 11 N. Y. 593; People ex rel. Brown v. Woodruff, 32 N. Y. 355, 364; Matter of Miller, 110 N. Y. 216, 222 [18 N. E. 139]. In Matter of Miller, 110 N. Y. 216, 18 N. E. 139, where it was contended that the reason and equity of a statute brought within its operation certain parties not mentioned in it, it was said: 'If that be so, it constitutes no reason for controlling its language, although it might seem that the Legislature would have provided for such a case had their attention been called to it.' It is not the duty of courts to disregard the plain words of a statute, even in favor of what may be termed an equitable construction."

In People v. Luhrs, 195 N. Y. 377, 89 N. E. 171, 25 L. R. A. (N. S.) 473, the court reiterated

"the rule of construction that all the words of a statute are to be given effect if possible. It would be unreasonable to hold that the Legislature intended to prohibit the same act by two successive commands expressed in two successive clauses each of which makes that identical act a crime, when the statute permits the construction that the second clause was aimed at a different evil caused by a different act, the prohibition of which was necessary to furnish the complete protection which it was the object of the Legislature to afford."

Relator respondent, in his brief upon this appeal, repudiates the construction placed upon the act by the Special Term, and says:

"It seems fair to believe that the Legislature did mean to prohibit constructive possession in the home of the unlicensed home revolver. The only question that relator submits on this appeal is the constitutionality of the law for licensing the possession of the home revolver."

He says further:

That he "explicitly abandons all narrow and technical considerations by admitting that an unlicensed possession of a concealable weapon, committed by having a concealable revolver at home in a drawer or cabinet, is prohibited by the statute. By further admitting that constructive possession of a revolver in the house was prohibited by the statute as much as an actual physical possession. By further admitting that the prohibition relates to citizens of New York state, and that the Legislature had the home in mind as much as it had public places in mind when it made this prohibition. By admitting, further, that there is nothing obscure in the language of the statute in so far as an intention to prohibit the possession in the home of a revolver without a license therefor."

What he stands upon is the inherent and inalienable right to keep and bear arms, declared by the English Bill of Rights, inherited by the Colonies, recognized by the Bill of Rights as adopted in this state, and in the Constitutions of many other states, and alluded to in the second amendment to the Constitution of the United States, which provides:

"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."

[3] It is settled by a long line of authorities that the first 10 amendments to the Constitution of the United States are not operative on the

-states. Barron v. Baltimore, 7 Pet. 243, 8 L. Ed. 672; Spies v. Illinois, 123 U. S. 131, 8 Sup. Ct. 22, 31 L. Ed. 80; Brown v. New Jersey, 175 U. S. 172, 20 Sup. Ct. 77, 44 L. Ed. 119; Maxwell v. Dow, 176 U. S. 581, 20 Sup. Ct. 448, 494, 44 L. Ed. 597; Twining v. New Jersey, 211 U. S. 78, 29 Sup. Ct. 14, 53 L. Ed. 97. In Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed. 715, Brown, J., said:

"The law is perfectly well settled that the first 10 amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which had continued to be recognized as if they had been formally expressed. Thus the right of the people to keep and bear arms is not infringed by laws prohibiting the carrying of concealed weapons."

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And it has been specifically held that the second amendment, here relied upon, has no other effect than to restrict the powers of the national government, as said by the Chief Justice in United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588:

"The right of the people to keep and bear arms is not a right granted by the Constitution. Neither is it in any way dependent upon that instrument."

See, also, Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 580, 29 L. Ed. 615; Miller v. Texas, 153 U. S. 535, 14 Sup. Ct. 874, 38 L. Ed. .812; Andrews v. State, 3 Heisk. (50 Tenn.) 165, 8 Am. Rep. 8.

In People v. Persce, 204 N. Y. 397, 97 N. E. 877, in passing upon section 1897 of the Penal Law prior to the amendment here under consideration, the Court of Appeals said:

"Neither is there any constitutional provision securing the right to bear arms which prohibits legislation with reference to such weapons as are specifically before us for consideration. The provision in the Constitution of the United States that the right of the people to keep and bear arms shall not be infringed is not designed to control legislation by the state. Presser v. Illinois, 116 U. S. 252 [6 Sup. Ct. 580, 29 L. Ed. 615]. There is no provision in the state Constitution at least directly bearing on this subject but only in the statutory Bill of Rights."

[4] The Legislatures of nearly all the states have enacted statutes making it an indictable offense to carry concealed weapons. The general rule is stated in 5 Am. & Eng. Enc. of Law, 731:

"The provisions of the state statutes prohibiting the carrying of concealed weapons do not infringe any constitutional right of the citizen, but are merely police regulations forbidding the carrying weapons in a particular manner which is found dangerous to the safety and peace of the citizen."

In People v. De Morio, 123 App. Div. 665, 108 N. Y. Supp. 24, the Appellate Division in the Second Department said:

"That part of section 410, Penal Code, pertinent to this case, provides: 'Any person over the age of sixteen years, who shall have or carry concealed upon his person in any city or village of this state, any pistol, revolver, or other firearm, without a written license therefor, theretofore issued to him by a police magistrate of such city or village, shall be guilty of a misdemeanor.' There is no dispute that the defendant was found outside of a bar

in a barroom with a revolver in his pocket. The appeal rests upon the contention that the defendant was on his own premises, and that any proof of intent was lacking. The statute does not contain any exception which permits the carrying while on one's own premises such a weapon concealed about the person. Wharton on Criminal Law (10th Ed.) § 1557, says: 'It is no defense that the weapons, when there is no exception in the statutes, were only carried about in the defendant's own house.' Bishop on Statutory Crimes (3d Ed.) § 789, says: 'Nor will it avail him that the carrying was on his own premises unless the statute has this exception'-citing cases. See, too, Harman v. State, 69 Ala. 248; Carroll v. State, 28 Ark. 99 [18 Am. Rep. 538]; Maupin v. State, 89 Tenn. 367 [17 S. W. 1038]. The mere fact that a man carries such a weapon in his own curtilage does not warrant the conclusion that he would not use it if occasion offered, and does not negative the conclusion that he did not have it under such circumstances for any wrongful, offensive, or defensive purposes. This part of the statute quoted does not contain any provision as to intent to use the same. Hence the intent may be presumed from the commission of the act."

[5] The provisions of the Bill of Rights, in this state, are embodied in the statutes, to wit, the Civil Rights Law (chapter 6, Consol. Laws 1909; chapter 14, Laws of 1909), and not in the Constitution. Nevertheless we fully recognize the proposition that the rights enumerated in the Bill of Rights were not created by such declaration. They are of such character as necessarily pertain to free men in a free state. [6] But in order to appeal thereto for the purpose of declaring null and void an act of the Legislature, possessing all the lawmaking power of the people, it is necessary, before the act is declared null and void, that it should clearly be made to appear that it is in flat violation of some fundamental right of which the citizen may not be deprived by any power.

The right to bear arms is coupled with the statement why the right is preserved and protected, viz., that "a well-regulated militia is necessary to the security of a free state." If the Legislature had prohibited the keeping of arms, it would have been clearly beyond its power. As said by the Supreme Court of the United States in Presser v. Illinois, supra:

"It is undoubtedly true that all citizens capable of bearing arms constitute the reserve military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful source for maintaining the public security and disable the people from performing their duty to the general government; but, as already stated, we think it clear that the sections under consideration do not have this effect."

In English v. State, 35 Tex. 473, 14 Am. Rep. 374, in referring to a statute prohibiting the carrying of certain specified deadly weapons, among others, pistols, daggers, slungshots, and bowie knives, the court said:

"To refer the deadly devices and instruments called in the statute 'deally weapons' to the proper or necessary arms of a 'well-regulated militia' is simply ridiculous. No kind of travesty, however subtle or ingenious, could so misconstrue this provision of the Constitution of the United States as to make it cover and protect that pernicious vice, from which so many murders, assassinations, and deadly assaults have sprung, and which it was doubtless the in

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