The Potowmack Institute

(Supreme JudicIal Court of Massachusetts.
Suffolk. May 22, 1896.)


1. St. 1893, c. 367, § 124, prohibiting parading by unauthorized bodies of men with firearms, is not unconstitutional, under article 17 of the declaration of rights, declaring tbat the people have the right to keep and bear arms for the common defense.

2. St. 1893 c. 367 § 124, forbidding parading by uuauthorized bodies of men with firearms, is not unconstitutional as being class legislation, in that it excepts from its operations troops of the United States and certain independent military organizations, especially designated.

3. Defendant, with others, forming a company in a parade carried ordinary breech-loading Springfield rifles, which had been rendered useless by boring holes in the barrels and by filing down the firing pin, so that the rifles could not be used to discharge any missile by means of gunpowder or other explosive. Held, that the rifles, being to an ordinary observer efficient were "firearms" within the meaning of St. 1893 c. 367, § 124, forbidding parading by unauthorized bodies of men with firearms. James A. Murphy was convicted for parading with an unauthorized body oP men with firearms, and appeals. Affirmed.

Thomas J. Gargan, P. M. Keatlng, and S. C. Brackett, for appellant. John D. McLaughlin, 2d Asst. Dist. Atty., for the Commonwealth.

ALLEN, J. The defendant is complained of for belonging to and parading with a certain unauthorized body of men with arms, which said body of men had associated themselves together as a company and organization for drill and parade with firearms, in violation of St. 1893, c. 3G7, § 124. He contends that this statute is in contravention of the seventeenth article of the declaratlon of rights, which declares that "the people have a right to keep and bear arms for the common defense." This view cannot be supported. The right to keep and bear arms for the common defense does not include the right to associate together as a military organization, or to drill and parade with arms in cities and towns, unless authorized so to do by law. This is a matter affecting the public security, quiet, and good order, and it is within the police powers of the legislature to regulate the bearing of arms, so as to forbid such unauthorized drills and parades. Presser v. State of Illinois, 116 U. S. 252, 264, 265, 6 Sup. Ct. 580; Dunne v. People; 94 Ill. 120. The protection, of a similar constitutional provision has often been sought by persons charged with carrying concealed weapons, and it has been almost universally held that the legisiature may regulate and limit the mode of carrylug arms. Andrews v. State, 3 Heisk. 166; Aymette v. State, 2 Humph. 164; Wilson v. State, 33 Ark. 657; Haile v. State, 38 Ark. 564; English v. State, 35 Tex. 473; State v. Reid, 1 Ala. 612; State v. Wilforth, 74 Mo. 528; State v. Mitchell, 3 Blackf. 229; Bish. St. Crimes, § 793. The enrly decision to the contrary of Bliss v. Com., 2 Lit. (Ky) .90, has not been generally approved.

The defendant further contends that this statute, which mentions certain military bodies as exempt from its operation, is class legislation, which grants exclusive priviieges to certain classes of citizens which are denied to the body of the people. It is not contended that the troops of the United States or the regularly organized milltia of the commonwealth should be forbidden to drill and parade; but the argument is that the legislature has no power to single out other independent organizations, and give to them peculiar rights which it denies to others. But, in regulating drills and public parades, it is for the legislature to determine how far to go. No independent military company has a constitutional right to parade with arms in our cities and towns, and the granting of the privilege to certain enumerated organizntione does not carry with it the same privilege to all others. It is within the power of the legislature to determine, in reference to such independent organizations, which of them may, and which of them may not, associate together and organize for drill and parade with firearms. No decision has been cited to us which intimates the contrary. The granting to certain persons of special privileges of this kind, which do not interfere with the rights of others, is not open to objection on constitutional grounds.

It appeared in evidence that the defendannt, with 10 or 12 other men, formed one company in the parade, and that all the men in this company carrled ordinary breech-loading Springfield rifles, which had been altered and bored in the barrel near the breech, and the firing pins had also been filed down, so as to make them immovable; and in this condition they could not discharge a missile by means of gunpowder or any other explosive. The defendant contends that these weapons were not "firearms," within the meaning of the statute. The purpose for which these alteratlons were made is not disclosed. They would not be obvious to the ordinary observer, whlle the rlfies were carried in the parade. So far as appearance went, it was a parade with firearms which were efficient for use. To the public eye, it was a parade in direct violation of the statute. The men who carried these weapons could not actually fire them, but it would be generally supposed that they could. With the exception of the danger of being actually shot down, all the evils which the statute was intended to remedy still existed in the parade in which the defendant took part to hold that such a weapon is not a "firearm," within the meaning of the statute, would be to give too narrow and strict a construction to its words. It was originally a firearm which was effective for use. The Fact that it was disabled for use did not change its name. It was for the court to determine whether the statute included the weapon which was produced and exhlbited at the trial, and his instruction to the jury that it was a "firearm," within the meaning of the statute, was right. Pilliams v. State, 61 Ga. 417; Atwood v. State, 53 Ala. 508; Bish. St. Crimes, § 791. Verdict of guilty to stand.

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