Request By:
Mr. Carl Brown
Jefferson County Commissioner
Jefferson County Courthouse
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising questions concerning the authority, if any, of local governments to enact ordinances relating to the regulation of firearms in view of the provisions of the Kentucky Constitution.
You refer to a current ordinance of the City of Louisville which you state provides for gun dealer licensing, a "waiting period" prior to transactions and the reporting of gun transaction information to the authorities. In addition, you state that other members of local legislative bodies have announced their intention to propose more stringent regulations relative to the regulation of firearms.
A brief examination of the ordinance of the City of Louisville indicates that it basically deals with concealable firearms, the sale or transfer of concealable firearms, ownership or possession of concealable firearms, licensing of dealers of concealable firearms, sales of such firearms by dealers and reports to the police of such sales, reports of sales of concealable firearms by persons other than dealers and the confiscation of concealable firearms under certain circumstances.
You question the authority of a local government to regulate firearms in such a manner as you maintain that the Kentucky Constitution provides only for state regulation of concealed weapons. The questions you have presented to this office are as follows:
"Do city or county governments in the Commonwealth of Kentucky have the authority, either under the Kentucky Constitution or under the 'home rule' statutes, to regulate firearms in the manner described in the current City of Louisville ordinance?
Do city or county governments in the Commonwealth of Kentucky have the authority by constitution or by statute, to enact any firearm regulations? "
Section 1, subsection seven, of the Kentucky Constitution (part of the Bill of Rights) deals with inherent and inalienable rights and grants to all men:
"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. "
We are not aware of any reported Kentucky decision dealing specifically with whether state or local governments may enact gun control legislation in view of the Kentucky constitutional provision cited above. The Court, in Holland v. Commonwealth, Ky., 294 S.W.2d 83, 85 (1956), while proceeding to the precise question before it, said by way of dictum, in connection with Section 1, subsection 7, of the Kentucky Constitution:
"In our state the legislature is empowered only to deny to citizens the right to carry concealed weapons. The constitutional provision is an affirmation of the faith that all men have the inherent right to arm themselves for the defense of themselves and of the state. The only limitation concerns the mode of carrying such instruments. We observe, via obiter dicta, that although a person is granted the right to carry a weapon openly, a severe penalty is imposed for carrying it concealed. . . ."
If this literal interpretation were to become the court's actual holding in a case, it would apparently mean that under state law any person could possess any weapon, including machine guns, anti-tank rifles and mortars, so long as those weapons were not concealed. Other jurisdictions have faced the question of the validity of gun control regulations in view of constitutional provisions granting persons the right to bear arms in defense of themselves and their state. We can only consider what has happened in other states since there is no reported decision available in Kentucky which is directly in point.
No absolute right to keep and bear arms was recognized at common law and statutory regulations as to time and place were enacted as far back as the Statute of Northampton in 1328. Application of Atkinson, Minn., 291 N.W.2d 396 (1980). Furthermore, the right to bear arms does not apply to private citizens as a individual right guaranteed by the United States Constitution. See 79 Am.Jur.2d, Weapons and Firearms, § 4, and the cases cited therein.
In 94 C.J.S., Weapons, § 2, it is stated that the constitutional right is not to bear arms on all occasions and in all places, but to use them in a way that is usual or to keep them for the ordinary purpose to which they are adapted, including the defense of a person, his property and his state. The right to bear arms does not operate to prevent the enactment of legislation regulating the manufacture, sale, gift, loan or use of weapons. In addition:
". . . Whatever may be the source or nature of the right to bear arms, or the precise character of those 'arms' in connection with which the right is to be exercised, the manner of bearing arms is subject to regulation by the states or territories or their political subdivisions, under their police power, provided the regulation is reasonable."
In 79 Am.Jur.2d, Weapons and Firearms, § 5, the following appears:
"State laws regulating the acquisition or possession of guns have frequently been upheld as reasonable exercises of the police power. This basis of state regulatory action has been recognized with respect to concealedweapon statutes, the posession of weapons by proscribed persons such as convicted felons, the proscription of certain categories of weapons, licensing regulations, and gun control laws requiring prospective purchasers to first obtain identification cards by being fingerprinted, investigated, and passed upon by designated officials."
Section 5, article 2 of the Michigan Constitution, providing that, "Every person has a right to bear arms for the defense of himself and the state" was involved in People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931). The Court upheld the validity of a state statute prohibiting the possession without a license of various weapons, including machine guns as a reasonable regulation under the police power of the right to bear arms. The right to bear arms, said the Court, originated in the fear of the American colonists of a standing army and its use to oppress the people; in their preference for a state militia, privately armed and composed of all able bodied men, rather than a standing army; and in the necessity of self protection in a frontier society. See also State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980) for a historical discussion of the right to bear arms.
Art. II, Sec. 6, of the New Mexico Constitution, providing that "The people have the right to bear arms for their security and defense, but nothing herein shall be held to permit the carrying of concealed weapons, " was involved in City of Las Vegas v. Moberg, 82 N.M. 626, 485 P.2d 737 (1971). The Court said a municipal ordinance cannot completely prohibit the right to bear arms but it can regulate the right. The ordinance was struck down as it prohibited any person from carrying any weapon within the city.
Sec. 20 of the Declaration of Rights of the Constitution of Florida, providing "The right of the people to bear arms in defense of themselves, and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne," was involved in Davis v. State, Fla., 146 So.2d 892 (1962). The Court said the right of the people to bear arms in their own defense was intended to secure to the people the right to carry weapons for their protection but it was also designed to protect people from the bearing of weapons by the unskilled, irresponsible and the lawless. The statute involved was a valid exercise of the police power. See also Rinzler v. Carson, Fla., 262 So.2d 661 (1972), where the Court said the right to keep and bear arms is not an absolute right but subject to regulation to promote the health, morals, safety and general welfare of the people.
Article 1, Section 21, of the Pennsylvania Constitution, providing "The right of the citizens to bear arms in defense of themselves and the State shall not be questioned," was involved in Commonwealth v. Ray, 218 Pa.Super. 72, 272 A.2d 275 (1970). The Court said in part:
"That the right to bear arms guaranteed by the Constitution is not an unlimited right is almost universally accepted. That a reasonable regulation in a gun control law is a valid exercise of the police power of the Commonwealth prescribing for the good order and protection of its citizens."
Art. 1, Sec. 32, of the Indiana Constitution, providing "The people shall have a right to bear arms, for the defense of themselves and the State," was involved in Schubert v. Debard, Ind., 398 N.E.2d 1339 (1980). The Court upheld a licensing procedure for handguns as not in violation of the right to bear arms guaranteed by the state's constitution.
Art. 1, Section 26, of the Alabama Constitution, stating "That every citizen has a right to bear arms in defense of himself and the state," was considered in Hyde v. City of Birmingham, Ala. Cr. App., 392 So.2d 1226 (1980). The Court said, "It is well-settled and 'universally recognized,' however, that this right of a citizen to bear arms in defense of himself and the state is subject to reasonable regulation under the police powers of the state."
Art. 1, section 27, of the Oregon Constitution, provides "The people shall have the right to bear arms for the defense of themselves, and the State, but the Military shall be kept in strict subordination to the civil power." The Court in State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980) said in part at page 99 of its opinion:
"The constitutional guarantee that persons have the right to 'bear arms' does not mean that all individuals have an unrestricted right to carry or use personal weapons in all circumstances. For example, the danger of firearms was recognized shortly after the development of gunpowder. The English Statute of Northampton in 1327 forbade persons to ride at night carrying a firearm for the purpose of terrifying the peopel. . . . The courts of many states have upheld statutes which restrict the possession or manner of carrying personal weapons. The reasoning of the courts is generally that a regulation is valid if the aim of public safety does not frustrate the guarantees of the state constitution. . . ."
The Ohio Constitution, Section 4, Art. I, states that "The people have the right to bear arms for their defense and security; but standing armies in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power." In Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540 (1976), the Court upheld a gun control ordinance as a regulation of the manner in which guns are carried and said it was not a prohibition against carrying weapons. The Court said in part:
"It is true that in certain areas of federal and state constitutional law the rights of the individual are supreme. In order to so find, the language authorizing such intention must be clear and unambiguous. We do not so find here. Neither federal nor state law states that the right of an individual to bear arms is supreme over the authority of a governmental unit under the police power to regulate the purchase of arms in a reasonable manner."
In conclusion, we cannot find any reported Kentucky case dealing specifically with whether local governments may enact gun control legislation in view of Section 1, subsection seven, of the Kentucky Constitution. However, the experiences of many other states seem to indicate that the manner of bearing arms is subject to reasonable regulation by local governments under their police power.