Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 457
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1875.] THE STATE V. DUKE. 457
Opinion of the Court.
"revenue officers, and other civil officers, from keeping or
" having arms, while engaged in the discharge of their official
"duties, nor to prohibit persons traveling in the State from
"keeping or carrying arms with their baggage: Provided fur"ther,
that members of the Legislature shall not be included
" under the term civil officers, as used in this Act."
" SECTION 2. Any person charged under the first Section of
"this Act, who may offer to prove by way of defense, that he
" was in danger of an attack on his person, or unlawful inter"ference
with his property, shall be required to show that such
"danger was immediate and pressing, and was of such a nature
"as to alarm a person of ordinary courage; and that the arms
"so carried were borne openly, and not concealed beneath the
"clothing; and if it shall appear that this danger had its origin
"in a difficulty first commenced by the accused, it shall not be
"considered a legal defense."
The objection made to the indictment was that it charged no
offense known to the laws of the State, bringing up the question
of the constitutionality of this Act, and also of the sufficiency
of the indictment under the statute, if held valid.
Article II. of the amendments to the Constitution of the
United States declares that "A well regulated militia being
"necessary to the security of a free State, the right of the peo"ple
to keep and bear arms shall not be infringed." That this
and the other amendments adopted at the same time, were intended
to be limitations on the power of the government of the
thirteen States, and not on the powers of the State governments,
has been long regarded as the settled construction in the Supreme
Court of the United States. Whilst there has been no
decision of that court to that effect, as to the clause under consideration,
the opinion of Chief-Justice Marshall in Borran v.
City of Baltimore (7 Peters, 247), applies to this, as well as the
5th amendment, which he was then considering. So far as it
can be done in that way, it may be said that the frequent
recognitions which this construction of these amendments has
received in that court, have given it the force of settled law.
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/465/: accessed August 16, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .