« 이전계속 »
Illinois, 116 U. S. 252, 29 L. ed. 615, 6 naturalized foreign-born person and
property of another or against the 77 Pa. 470; State v. Shelby, 90 Mo. 302,
government of the United States or 2 S. W. 468.
of the state of California or of any The state through its police power
political subdivision thereof shall may regulate the conduct of aliens. own or have in his possession or
Com. v. Patsone, 231 Pa. 46, 79 Atl. under his custody or control any 928, 232 U. S. 139, 58 L. ed. 539, 34 pistol, revolver or other firearm Sup. Ct. Rep. 281; Central Lumber Co.
capable of being concealed upon the v. South Dakota, 226 U. S. 157, 57 L.
person. The terms 'pistol,' 'revolved. 164, 33 Sup. Ct. Rep. 66; Barrett v.
er,' and 'firearms capable of being Indiana, 229 Ú. S. 26, 57 L. ed. 1050, 33 Sup. Ct. Rep. 692; Adams v. Milwau
concealed upon the person' as used kee, 228 U. S. 572, 57 L. ed. 971, 33
in this act shall be construed to Sup. Ct. Rep. 610; People v. Crane, 165 apply to and include all firearms App. Div. 449, 150 N. Y. Supp. 933, re- having a barrel less than twelve versing Heim v. McCall, 88 Misc. 291, inches in length. Any person who 150 N. Y. Supp. 492; Hubbard v. Good- shall violate the provisions of this win, 3 Leigh, 492; People v. Finley, 153
section shall be guilty of a felony Cal. 60, 94 Pac, 248. Messrs. U. S. Webb, Attorney Gen
and upon conviction thereof shall be eral, and W. F. Cleary also for re
punishable by imprisonment in a spondent.
state prison for not less than one Messrs. J. J. Henderson and B. P. year nor for more than five years." Tabor, amici curiæ.
It is contended that this statute Lawlor, J., delivered the opinion
is unconstitutional (a) in that it of the court:
violates the 14th Amendment of the On application of his attorneys, a
Constitution of the United States, writ of habeas corpus was issued
(b) because it violates article 2 of on behalf of Gevino Rameriz, whom
the Amendments of the Constituwe shall refer to as petitioner. The
tion of the United States, and (c) record before us shows that he was
for the reason that it violates § 17, charged, tried, and convicted in article 1, of the Constitution of the Kings county, and sentenced to state of California. serve a term of from one to five (a) It is contended that this statyears in the state prison at San ute violates the 14th Amendment of Quentin for violation of a new stat
the Federal Constitution, in that it ute (Stat. 1923, p. 695) in having
denies to aliens the equal rights and on and about his person and in his protection of the laws. In other possession a certain automatic re- words, that aliens have been unvolver about 4 inches in length, of justly discriminated against within 25 caliber, and loaded with powder the meaning of the 14th Amendand ball, the petitioner then and ment. It is argued on behalf of the there being an unnaturalized for petitioner that the deprivation of eign-born person. After judgment
the right to unnaturalized foreignwas pronounced, a certificate of born persons to have the possession probable cause was issued pending of such firearms as are described in appeal, and at the time of the issu- the statute is an unconstitutional ance of the writ the petitioner was exercise of the police power of this in the custody of respondent, W. J. state. It is admitted by amici curiæ Hime, sheriff of Kings county. that the legislature has the unques
The petitioner was charged under tioned power to enact, as a proper $ 2 of the said statute, which reads police regulation designed to proas follows:
mote the public safety and welfare, "On and after the date upon a law absolutely prohibiting any which this act takes effect, no un- and all persons within its jurisdic(- Cal. 226 Pac. 914.) tion the possession or use of weap- state of California, was required, ons of the character described in the the instant this statute took effect, act under consideration, but "that to rid himself of the ownership of so long as the legislature expressly any such firearm which he theretorecognizes the class of firearms de- fore owned, and was prohibited scribed in § 2 of the act as the from acquiring the ownership of subject of property, ownership, and any such firearm in the future.” possession by citizens of the United Petitioner further complains in States, it cannot deny to resident his brief that § 5 of the act, which foreigners the absolute right to ac- makes it a misdemeanor only for quire and own, and, as a corollary any person to carry such weapons to such ownership, the right to pos- as are described without a license, sess, under proper regulation, fire- is added evidence of unlawful arms of the same description.
discrimination. The following is Respondent does not claim that quoted from the brief: “A penal the protection of the 14th Amend- statute which makes arbitrary disment does not extend to aliens with- tinctions between different persons in the territorial jurisdiction, but or classes of persons, either by makcontends that within the exercise of ing certain acts criminal offenses the police power they may be classi- when committed by some persons fied for purposes of legislation. It but not when committed by others, is argued, on the other hand: First- or by prescribing different penally, that unlawful discrimination is ties for the commission of the same shown in the proviso contained in acts by different persons, has been $ 6, that nothing in § 5 "shall be declared unconstitutional as class construed to apply to or affect sher- legislation. Peonage Cases (D. C.) iffs ... nor to the possession or 123 Fed. 671; 12 C. J. 1141." transportation by any merchant of The attorney general contends unloaded firearms as merchandise," that the legislation does not violate and that, consequently, “no un- the equal protection clause of $ 1 of naturalized foreign-born merchant the 14th Amendment, and cites 1, who happens to be engaged in busi- article 19, of the state Constitution, ness in the state of California is that “the legislature shall prescribe permitted to possess or transport a all necessary regulations for the certain kind of property if it con- protection of the state, sists wholly or partly of firearms from the burdens and evils arising capable of being concealed on the from the presence of aliens who are person.” Secondly, it is argued: or may become
criminals, "There is no provision in the law
and from aliens otherwise whereby an unnaturalized foreign- dangerous or detrimental to the born person, no matter what his well-being or peace of the state, status may be, can secure a license
as additional authority or permit to own or possess any fire
for such legislation is contained in arms or stock in trade consisting of $ 2 of the act in question. We firearms. The mere fact that he is quote: "It also appears to us that an unnaturalized foreigner abso- in order to hold the act in question lutely precludes him from owning unconstitutional, it will be necesor possessing this species of prop- sary for this court to hold that § 1 erty... Interpreted according of article 19 of our state Constituto their ordinary signification, the tion violates the equal protection words of the statute prohibit even clause of the 14th Amendment to the owning by an unnaturalized for- the Constitution of the United eigner of any firearms capable of States." being concealed on the person.
Petitioner has cited a number of other words, every unnaturalized authorities to the effect that certain foreign-born person, resident of the statutes and ordinances which dis
criminated against aliens were re- sons of the Chinese race the equal pugnant to the 14th Amendment: protection of the laws. The case of Yick Wo v. Hopkins, 118 U. S. 356, Com. v. Hana, 195 Mass. 262, 11 30 L. ed. 220, 6 Sup. Ct. Rep. 1064; L.R.A.(N.S.) 799, 122 Am. St. Rep.
, Barbier v. Connolly, 113 U. S. 27, 251, 81 N. E. 149, 11 Ann. Cas. 514, 28 L. ed. 923, 5 Sup. Ct. Rep. also cited by petitioner, held a stat357; Truax v. Raich, 239 U. S. 33, ute which required that a license as 60 L. ed. 131, L.R.A.1916D, 545, 36 a hawker and peddler shall be Sup. Ct. Rep. 7, Ann. Cas.' 1917B, granted only to a person who is or 283; Re Tiburcio Parrott (C. C.) 6 has declared his intention to become Sawy. 349, 1 Fed. 481; and Opinion a citizen of the United States, a of Justices, 207 Mass. 601, 34 L.R.A. valid exercise of the police power, (N.S.) 604, 94 N. E. 558. In the The following cases are cited as inYick Wo Case a municipal ordi- stances of the denial of the equal nance to regulate public laundries, protection of the laws: Pearson v. and requiring the consent of the Portland, 69 Me. 278, 31 Am. Rep. board of supervisors to their estab- 276; Re Kemmler, 136 U. S. 436, 34 lishment when the building was not L. ed. 519, 10 Sup. Ct. Rep. 930; made of brick and stone, was held Strauder v. West Virginia, 100 U, unconstitutional, and not a valid S. 303, 25 L. ed. 664, 3 Am. Crim. exercise of the police power, for the Rep. 515; McCabe v. Atchison, T. & reason that it allowed arbitrary and S. F. R. Co. 235 U. S. 151, 59 L. ed. unjust discrimination to be made by 169, 35 Sup. Ct. Rep. 69; Pasadena such board, founded on differences v. Stimson, 91 Cal. 238, 27 Pac. 604; of race, between persons otherwise Re Kotta, 187 Cal. 33, 200 Pac. 957; in similar circumstances. In Bar- St. Louis Southwestern R. Co. v. bier v. Connolly, 113 U. S. 27, 28 L. Arkansas, 235 U. S. 350, 59 L. ed. ed. 923, 6 Sup. Ct. Rep. 1064, the 265, 35 Sup. Ct. Rep. 99. In Pearordinance fixing certain hours when son v. Portland, supra, a statute laundries were not to be operated which precluded the recovery by a was held to be a reasonable police nonresident of damages for injury regulation. Truax v. Raich, 239 U. to person or property under circumS. 33, 60 L. ed. 131, L.R.A.1916D, stances sanctioned by another state 545, 36 Sup. Ct. Rep. 7, Ann. Cas. law if a similar remedy was not 1917B, 283, dealt with a statute provided in the place of residence of which required that employers em- the injured party was held to deny ploy only a specified number of alien him the equal protection of the lav/s. employees, and fixing a penalty. The Re Kemmler, 136 U. S. 436, 34 L. statute was declared unconstitu- ed. 519, 10 Sup. Ct. Rep. 930, intional as involving the right to earn volved a state electrocution law. a livelihood. Re Tiburcio Parrott, The court held that no Federal ques6 Sawy. 349, 1 Fed. 481, involved tion was presented because the due an article of the state Constitution
process clause of the 14th Amendwhich authorized restrictive legis- ment has reference to the law of the lation relating to the employment of land in each state, and so long as the Chinese. It was held invalid as vio- law is equal in its operation it does lative of the 14th Amendment, and not violate due process. The legisnot within the police power of the lation in Strauder v. West Virginia, state. A criminal statute in Opin- 100 U. S. 303, 25 L. ed. 664, 3 Am. ion of Justices, supra, attempted to Crim. Rep. 515, which denied to prevent Chinese from admitting in- negroes the right and privilege of to hotels and restaurants conducted participating in the administration by them, or their serving with food of the laws as jurors, was held and drink therein, girls under the unconstitutional under the 14th age of twenty-one years.
Amendment, as being a discriminaheld such restrictions denied to per- tion against negroes on account of
226 Pac. 914.) race and color. In McCabe v. At- ployment; Hannah v. People, 198 chison T. & S. F. R. Co. 235 U. S. Ill. 77, 64 N. E. 776, dealt with re151, 59 L. ed. 169, 35 Sup. Ct. Rep. strictions on the conduct of public 69, a statute requiring separate, but warehousemen; in Missouri
v. equal, accommodations on railways Lewis (Bowman v. Lewis) 101 U. for white and African races, was
S. 22, 25 L. ed. 989, a constitutional held not to be an infraction of the amendment and state statute adequal protection clause of the 14th justed the appellate jurisdiction of Amendment. In Pasadena v. Stim- the courts in the various counties of son, 91 Cal, 238, 27 Pac. 604, it was the state, and this was held not to held that a statute which required violate any provision of the 14th cities of the fifth and sixth classes Amendment; Rathbone v. Wirth, to make an effort to agree with the 150 N. Y. 459, 34 L.R.A. 408, 45 N. owners of land sought to be con- E. 15, held that certain legislation demned before instituting con- which made party affiliation a requidemnation proceedings was a spe- site to eligibility to an office violated cial law making a forbidden dis- the state Constitution. The follow
. crimination against two classes of ing cases cited by petitioner inmunicipal corporations, and deny- volved the police power of the ing them the equal privileges with states: Mugler v. Kansas, 123 U. other cities in the exercise of the S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. right of eminent domain. Re Kotta, 273, held that a state statute pro187 Cal. 33, 200 Pac. 957, was a case
hibiting the sale of intoxicating where a statute imposed a poll tax liquor did not violate the 14th upon unnaturalized foreigners.
Amendment, as that guaranty does · This was held unconstitutional on not deprive the states of any police the ground that the enforcement power; Lochner v. New York, 198 would deprive the persons so bur- U. S. 45, 49 L. ed. 937, 25 Sup. Ct. dened of the equal protection of Rep. 539, 3 Ann. Cas. 1133, a law the laws guaranteed by the 14th which fixed the hours of labor in a Amendment. In St. Louis South
In St. Louis South- bakery was held unconstitutional as western R. Co. v. Arkansas, supra, not constituting a valid exercise of a statute imposed an annual fran- the police power, the health of the chise tax upon the right to exist as individual following the occupation a corporation, and the court said it not being jeopardized by the emwas not within the 14th Amend- ployment in question; in Lacey v. ment, since nothing therein pre
Palmer (Ex parte Lacy) 93 Va. vents double taxation or any other
159, 31 L.R.A. 822, 57 Am. St. Rep. form of unequal taxation so long as 795, 24 S. E. 930, a statute reguthe inequality is not based on arbi- lating pool selling was held to be trary distinctions. The following within the police power of the state; cases are cited as instances where Ex parte Hayden, 147 Cal. 649, 1 statutes deprived persons of prop- L.R.A. (N.S.) 184, 109 Am. St. Rep. erty without due process of law: In 183, 82 Pac. 315, passed on a statStimson Mill Co. v. Braun, 136 Cal. ute requiring all fruit shipped to be 122, 57 L.R.A. 726, 89 Am. St. Rep. labeled with the county and locality 116, 68 Pac. 481, the statute pro- where grown; held, an unconstituvided that mechanics' liens, except tional invasion of liberty, and not a as to contractors, be payable in proper exercise of the police power money: Coppage v. Kansas, 236 U. under the guise of a health regulaS. 1, 59 L. ed. 441, L.R.A.1915C, tion; Eubank v. Richmond, 226 U. 960, 35 Sup. Ct. Rep. 240, a statute S. 137, 57 L. ed. 156, 42 L.R.A.(N. making it unlawful for an employer S.) 1123, 33 Sup. Ct. Rep. 76, Ann.
. to require an employee to agree not Cas. 1914B, 192, involved a municito become a member of any labor pal ordinance requiring the estaborganization during the time of em- lishment of building lines on the re
quest of two thirds of the owners of our nation and our people. While abutting property. It was held the such a danger may seem improbable ordinance did not constitute a valid at the present time, yet, in time of exercise of the police power, as it war, it becomes a very real danger could not serve the public safety, indeed, particularly as a few thouconvenience, or welfare. It will sand organized aliens, in the course serve no purpose to discuss Title of a few hours, could so cripple our Guarantee & T. Co. v. Garrott, 42 basic industries and our transportaCal. App. 152, 183 Pac. 470, and Ex tion facilities as to make us practiparte Bailey, 155 Cal. 472, 31 L.R.A. cally powerless in conducting war. (N.S.) 534, 132 Am. St. Rep. 95,
On the other hand, fire101 Pac. 441.
arms, and particularly firearms The foregoing authorities have capable of being concealed upon been described somewhat in detail the person, are capable of being put by way of making clear their inap- into active and immediate use. plicability to the legislation here in
Thus, even though the posvolved. In other words, we have
session of firearms by any person found nothing in any of them that may be harmful to the public welsupports the contention that § 2 of fare, yet, as the possession of such the act is violative of the 14th weapons by an aliens is doubly Amendment. Correct principles are
it is within the stated as applied to the legislation province of the legislature to conto which these cases
fine its restrictions to aliens." (2) dressed, and they furnish the tests
Here follows an argument in favor by which the constitutionality of of the legislation, giving illustralegislation may be determined under tions of the need of guarding the 14th Amendment, but there against aliens, which
which concludes were involved in none of them the thus: “There is yet another reason subjects of public peace, public
for the classification,--the additionsafety, public security, or collateral al difficulty in apprehending and sesubjects, as affected by the posses- curing evidence against aliens." sion of firearms. One of these tests
Amici curiæ for respondent is whether the legislation comes
makes a similar argument, and conwithin the police power, and several
cludes that the classification is not of the cases are authority for the unreasonable. proposition that the 14th Amend- Among the cases relied upon by ment was not "designed to inter respondent are Patsone v. Pennsylfere with the power of the state vania, 232 U. S. 139, 58 L. ed. 539, sometimes termed its police power.
34 Sup. Ct. Rep. 283, and State v. Barbier v. Connolly, 113 Rheaume, 80 N. H. 319, 116 Atl. U. S. 27, 31, 28 L. ed. 923, 924, 5
758. The former case upheld the Sup. Ct. Rep. 359. The precise constitutionality of an act which question presented here is whether made it unlawful for any unnatural§ 2 is a valid exercise of the police ized foreign-born resident to kill power.
any wild bird or animal except in Respondent urges that the legis- defense of person or property, and lation represents a proper exercise "to that end" made it unlawful for of the police power for the reason such foreign-born person to own or that it tends to safeguard the pub- be possessed of a shotgun or rifle. lic peace and security. The argu
It is sought on behalf of petitioner ment is twofold: (1) Allegiance to distinguish this case on the to the government, that is, the “dan- ground that the decision "seemed to ger of permitting aliens to arm hinge upon the provisions of the themselves, and thus place them- act, and especially of the phrase 'to selves in a position to dispute, with that end,' that is, to the protection force of arms, the sovereignty of and preservation of wild game.” It