Cases That Should Not Have Been Filed

When I first started researching the history of how the courts have dealt with the Second Amendment, and the right to keep and bear arms provisions contained in most of the state constitutions, I found myself wondering how most of the gun control laws then on the books had survived court challenge.  Was the meaning of the right to keep and bear arms really this hard for the courts to understand?

As I started reading through many of these decisions, I figured out why so many gun control laws had managed to stay on the books, and it was something of a surprise.  It turns out that there are at least two categories of people that have historically run afoul of gun control laws: good people in the wrong place at the wrong time with a gun; and bad people who tried to use the right to bear arms as a defense for criminal behavior.  Often, the lawyer makes every conceivable argument to get his client’s conviction overturned, no matter how minor or absurd.  If you throw enough stuff at the wall, some of it may stick.

For many years, state gun control laws were so strict that there must have been many otherwise law-abiding people that ended up arrested and charged.  That so few of these otherwise law-abiding people ended up as appellate court cases suggests that at trial, either a jury or a judge found them innocent.  Having won their case, there was no reason to appeal.

The second category of cases, however, seem to dominate the records of the courts—and unfortunately, when the courts hear arguments for the right to keep and bear arms from lawyers for bad guys, it seldom ends well for either the defendant, or the right to keep and bear arms.  There are lawsuits on behalf of the right to keep and bear arms that should not be filed.  There are criminal cases where lawyers should not make a right to keep and bear arms argument on behalf of their client.  The consequences have often been unpleasant.

I was recently going back over 170 years of such cases for an upcoming law review article, and I was struck by how absurd many of these cases were.  One was Morrison v. State (1960).  A Charles Walter Morrison was convicted in Dallas County of unlawful possession of a machine gun.  And how did he come to the attention of the authorities?

Mr. Morrison’s wife was apparently getting ready to leave him, taking their children with her when Mr. Morrison disabled her car with a Schmeisser submachine gun (apparently brought back as a World War II trophy by an acquaintance).  The prosecutor claimed that Mrs. Morrison was in car at the time; Mr. Morrison insisted that, “she was out of the car and out of the line of fire.”  Even taking Mr. Morrison’s explanation at face value, let’s just say that this is not the most effective way to show a woman that you love her, and impress her with your mental stability.

The Texas Court of Criminal Appeals drew upon the Michigan Supreme Court’s People v. Brown (1931) decision to hold that a submachine gun was one of the weapons of the “gangster,” not protected by the Texas Constitution’s guarantee of a right to arms.  The Texas Court of Criminal Ap­peals decision recognized and reiterated the language from Brown that protected weapons were, “those arms which by the common opinion and usage of law-abid­ing people, are proper and legitimate to be kept upon private premises for the pro­tection of persons and property.”1  I hope that it isn’t a surprise to any of my readers why the judges on the Court of Criminal Appeals decided not to accept Morrison’s claim that he had a right to possess a submachine gun.

Another case where you want to ask the defense lawyer, “Were you really expecting this right to keep and bear arms argument to make a difference?” is Carlton et al. v. State (1912).  Three brothers, named Bascom Carlton, Dan Carlton, and Marion Carlton, were all convicted of murder: Bascom for first degree murder, and Marion and Dan for second degree murder.  A minor drunken argument at a dance hall in Hastings, Florida, soon led to the arrest of Bascom and Dan.  After posting bail in the wee hours of the morning, they got on a train back home to Espanola the next morning.  

The Carlton brothers managed to get themselves drunk again, and made some threats against the deputy who had arrested them.  After one of them fired at least one shot, the Carlton brothers were against arrested “with the aid of a posse” called out by the deputy sheriff.  Somehow, those arresting Bascom failed to find that he had a pistol in his pocket.  At the jail, during a patdown, one of those searching Bascom got into a struggle with him over the pistol, eventually leading to gunfire and death.2

What was the argument about the right to keep and bear arms?  The Florida law under which the Carlton brothers were arrested prohibited carrying of concealed weapons, except by law enforcement officers.  Because the Carlton brothers were carrying concealed in violation of the law, police officers were authorized to arrest them without a warrant.  The Carlton brothers’ attorney argued that the law against concealed carry was contrary to the Florida Constitution’s right to keep and bear arms provision—and therefore, there was no basis for arresting them, which led to the search at the jail, and the murder.

I’m hoping that you won’t be surprised to hear that the Florida Supreme Court didn’t find this argument very persuasive.  Instead, they argued that the guarantee “was intended to give the people the means of protecting themselves against oppression and public outrage, and was not designed as a shield for the individual man, who is prone to load his stomach with liquor and his pockets with revolvers or dynamite, and make of himself a dangerous nuisance to society.”3  That is historically wrong—but with the facts before them in this case, are you surprised that they came up with this ruling?

One of the most important cases in the history of the right to keep and bear arms, because it was so often cited by later courts is Aymette v. State (1840).  Tennessee had passed a very restrictive law concerning Bowie knives and Arkansas toothpicks, and this was the case that answered the question of whether the Tennessee Constitution’s arms guarantee protected the carrying of deadly weapons.  We might have lost this case no matter what, but when you read this picturesque description of the circumstances that led to William Aymette’s conviction by the jury—and the subsequent decision by the Tennessee Supreme Court—are you surprised?

“It appeared that Aymette… had fallen out with one Hamilton, and that about ten o’clock p.m., he went in search of him to a hotel, swearing he would have his heart’s blood.  He had a bowie-knife concealed under his vest and suspended to the waistband of his breeches, which he took out occasionally and brandished in his hand.  He was put out of the hotel, and proceeded from place to place in search of Hamilton, and occasionally exhibited his knife.”4

Now, not every case with unsavory characters ends with such an ugly result.  There are some surprising results over the years where the courts have recognized that just because someone sleazy raised a legitimate question, doesn’t taint the right to keep and bear arms.  The best example that I can give you where our side, so to speak, dodged a bullet, is State v. Rupe (1984).  This has to be the most unsympathetic defendant I can imagine.  Mitchell E. Rupe was convicted of “two counts of aggravated first degree murder and two counts of first degree robbery.”  Because Rupe was sentenced to death, the resulting decision is complex and sought to cover a tremen­dous range of constitutional and procedural issues—as well such a decision should—execution is forever.

The crime itself was heinous, and assuming that the courts reached the correct decision about Rupe’s guilt in this matter, it was an amateurish and clumsy bank robbery, intended to resolve his overdrawn checking account with the bank—his blood stained checkbook was “lying open on the customer’s side of the counter.”  Rupe confessed to the robbery-murder then recanted his confession in court.  To add to the horror of this crime, the first person to happen on the crime scene was the husband of one of the murder victims.

A total of 15 issues were raised by the defendant on appeal, only one of which was related to the right to keep and bear arms.  The Washington Supreme Court found in Rupe’s favor on only one of those fifteen issues—and that was the issue of the right to arms.  During the sentencing phase, Rupe’s gun collection was admitted as evidence,5 for the purpose of giving the jury “an insight into defen­dant’s personality...”  (Significantly, none of the guns in the collection was used in the murder, and none of them were even similar to the gun used in the murder).
The Court’s opinion, written by Justice Rosellini, agreed that what sort of guns Rupe owned were “irrelevant, prejudicial, and violative of his due process rights...”  Because Rupe owned a CAR-15, the prosecution argued that he was “a dangerous man because the CAR 15 was ‘an assault weapon to gun groups of people down in combat situations.’”  The Washington Supreme Court rejected this admission of the gun collection on the basis “that constitutionally protected behav­ior cannot be the basis of criminal punishment” and that Rupe had a right to possess such arms.  After explaining how evidence introduced in a trial may not “‘chill’ or penalize the assertion of a constitutional right,” the Court held that the Washington Constitution’s guarantee would be denied if Rupe’s exercise of that right could be held against him at trial.6

With the Rupe case, we managed to get a strong protection of the right to keep and bear arms from the Washington Supreme Court—but I think you can see why it is almost always a mistake to bring similar cases to the courts.

Clayton E. Cramer is a software engineer and historian. His sixth book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), is available in bookstores.  His web site is

1 Morrison v. State, 170 Tex.Cr.R. 218, 339 S.W.2d 529, 530 (1960).

2 Carlton v. State, 58 So. 486, 487 (Fla. 1912).

3 Carlton v. State, 58 So. 486, 488 (Fla. 1912).

4 Aymette v. State, 2 Hump. (21 Tenn.) 154, 155 (1840).

5 State v. Rupe, 101 Wash.2d 664, 683 P.2d 571, 576, 577, 578 (1984).

6 State v. Rupe, 101 Wash.2d 664, 683 P.2d 571, 596 (1984).