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."
Arizona Concealed Carry Page 1 Charles Curley
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.
Arizona Concealed Carry Page 2 Charles Curley
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.
Arizona Concealed Carry Page 3 Charles Curley
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.
Arizona Concealed Carry Page 4 Charles Curley
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.
-- 30 --
Charles Curley
Box 2071
Gillette, WY 82717-2071
307/682-5913
1558 Words
Arizona Concealed Carry Page 5 Charles Curley