CHAPTER XL.

RIGHT TO BEAR ARMS; QUARTERING OF SOLDIERS.

220. References.

J. Story, Constitution, §§ 1896-1900; T. M. Cooley, Constitutional Limitations,*350; J. R. Tucker, Constitution, 671, 672; J. N. Pomeroy, Constitutional Law, §§ 239, 240; F. Lieber, Civil Liberty and Self-Government, ch. xi; T. M. Cooley, Constitutional Law, ch. xiii, § 2, and ch. xiv, § 4; H. C. Black, Constitutional Law, §§ 203, 218; Ex parte Cruikshank (1875, 92 U. S. 542; McClain's Cases, 31).

221. Keeping and Bearing Arms.

The provision of the federal constitution that "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" (Amend. II), and like provisions in state constitutions are evidently intended to guarantee the right of the people to form military organizations under lawful authority for a proper purpose. The federal guaranty would prevent any attempt on the part of Congress to render illegal the organization and discipline of a state militia, but such interference would be unconstitutional without this guaranty, for (see above, § 110) the right of the state to maintain an organized militia is elsewhere recognized. As an exercise of a civil right, the formation of military companies or bodies must depend for its lawfulness upon the state constitution and laws, and must be exercised in accordance with the law. Therefore, the state may prohibit the gathering of armed men for an unlawful purpose or in a manner likely to result in violation of law or in disorder and riot.

The state may also prohibit the carrying of arms by private individuals as an act imperilling the public peace and safety.

In many states there are statutes making it a crime to carry concealed weapons, and such statutes are not regarded as unconstitutional.

222. The Quartering of Troops.

One of the grievances of the colonies as indicated in the Declaration of Independence was that the English government kept among the people in times of peace standing armies without the consent of their legislative bodies, and quartered upon them and required them to maintain bodies of armed troops; and the policy indicated by the federal and state constitutions is that standing armies for the purpose of maintaining internal peace and the enforcement of law should be avoided. Accordingly, the organization of the militia in the states is provided for, and the federal government is authorized to call out the state militia for the protection of the United States government and the enforcement of its laws (see above, § 111). Nevertheless, the United States government is authorized to maintain standing armies and to use the regular troops whenever the employment of military force is justified. The prohibition against the quartering of troops referred to in the federal constitution (Amend. II) and in the state constitutions, is intended to prevent, in time of peace, the imposition of the support of soldiers on private persons or of their maintenance by such persons in time of war, and also to prevent the intrusion of soldiers upon the private premises of individuals. The common-law notion that every man's house is his castle and that he shall not be compelled to allow any person to come upon his premises except with his consent, save the officers of the law in the execution of their regular duties, is undoubtedly recognized by such constitutional provision.

CHAPTER XLI.

SEARCHES AND SEIZURES.

223. References.

Joseph Story, Constitution, §§ 1901, 1902; T. M. Cooley, Constitutional Limitations, * 299–308; J. R. Tucker, Constitution, 672; F. Lieber, Civil Liberty and Self-Government, ch. vi; J. N. Pomeroy, Constitutional Law, § 241; T. M. Cooley, Constitutional Law, ch. xiii, § 2; H. C. Black, Constitutional Law, §§ 216, 217; Boyd v. United States (1886, 116 U. S. 616; McClain's Cases, 885).

224. Search and Seizure without Warrant.

The fundamental principles of civil liberty and the enjoyment of property forbid that one's person or premises be searched or that his person or property be seized without lawful authority; and without any express constitutional guaranty, immunity from such unlawful acts would be fully recognized. But the people of England and of the colonies had experienced unjustifiable invasion of this right by means of searches and seizures not authorized by law and in the exercise of a tyrannical authority, and it was natural that express guaranties against such tyrannical acts should be inserted in the state constitutions and in the federal constitution. The provision of the latter is as follows: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon proper cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized” (Amend. IV). The notion that every man's house is his castle, to be invaded without his consent only under lawful authority, which has been already referred to in the preceding chapter, is further recognized here. There may be proper occasion for the invasion of private premises in the

execution of the law, but the guaranty is as against such acts by public authority without the sanction of law. Such invasion on the part of public officers may be lawful without warrant or other process for the purpose of arresting a criminal or in the protection of the public health or safety, but the officer thus acting on his own responsibility and judgment is subject to the risk of being held accountable for trespass if in the judgment of the court the circumstances did not justify his action. He cannot safely proceed upon mere suspicion or upon his own whim or caprice. Subject to the same liability a private person may sometimes be justified in breaking into private premises to prevent a crime or arrest a criminal.

The sanctity of the person and the dwelling, which the common law fully recognizes, extends also to private books, correspondence, and other things in which the public has no legitimate concern.

225. Search Warrants.

Regular proceedings are recognized in all the states in pursuance of which the officers of the law may be authorized by a warrant duly issued, to enter private premises and search for property or the evidence of crime, but a search warrant will be issued only after some form of proof to a magistrate or other judicial officer that there is just occasion for such search and seizure; and the proofs and warrant issued in pursuance of it, must indicate the object of the search, which must be an object recognized by law, and the premises to be searched must be described with some particularity. A warrant not thus describing the premises to be searched, and the object, is called a general warrant, and under our system of government is unauthorized. The officers of the law may also be authorized by warrant for the arrest of a person designated therein to enter private premises for the purpose of making such arrest, and in making an arrest for the commission of a crime they may seize property procured by means of the crime charged, or weapons which have been used in the commission of the crime, or which tend to furnish evidence of its commission.

CHAPTER XLII.

GUARANTIES AS TO PROSECUTIONS FOR CRIME.

**

226. References.

J. Story, Constitution, §§ 1778-1794; T. M. Cooley, Constitutional Limitations, 309-348; J. N. Pomeroy, Constitutional Law, §§ 242-244; F. Lieber, Civil Liberty and Self-Government, chs. xix, xx, and app. iii; T. M. Cooley, Constitutional Law, ch. xv, §§ 3-6; H. C. Black, Constitutional Law, ch. xx ; J. C. Hurd, Habeas Corpus; W. Blackstone, Commentaries, III, 134-138; Hurtado v. People of California (1884, 110 U. S. 516; Thayer's Cases, 616; McClain's Cases, 905); Mackin v. United States, (1885, 117 U. S. 417, McClain's Cases, 985); Kring v. Missouri (1882, 107 U. S. 221; McClain's Cases, 983; Thayer's Cases, 1458); Brown v. Walker (1896, 161 U. S. 591; McClain's Cases, 990); Mattox v. United States (1895, 156 U. S. 237; McClain's Cases, 995); In re Kemmler (1890, 136 U. S. 436); Tarble's Case (1871, 13 Wallace, 397; McClain's Cases, 43; Thayer's Cases, 2299); In re Neagle (1889, 135 U. S. 1; McClain's Cases, 65; Thayer's Cases, 335); Whitten v. Tomlinson (1895, 160 U. S. 231; McClain's Cases, 777); Ex parte Milligan (1867, 4 Wallace, 2; Thayer's Cases, 2376); Ex parte Merryman (1861, Taney's Reports, 246; Thayer's Cases, 2361, and note, 2374); Hallinger v. Davis (1892, 146 U. S. 314; McClain's Cases, 987); Harris v. People (1889, 128 Ill. 585; McClain's Cases, 989).

227. General Guaranties as to Prosecutions.

Restrictions on the state and federal government in the exercise of the power to define and provide for the punishment of crime have already been briefly discussed (see above, ch. x) and it has been suggested that on this subject there are certain specific limitations in the federal constitution on the power of states as well as on the power of the federal government. Indeed those provisions in the federal constitution are generally included in the state constitutions, so that the whole subject may be discussed with reference to the provisions of the federal constitution, bearing in mind, however, the rule of construction that general limitations in the federal constitu