## Facts

- James Andrews, Frank O’Toole, and Elbert Custer were prosecuted under a 1870 Tennessee statute broadly restricting the carrying of “pistols” and certain other weapons.
- The statute did not distinguish between military-style pistols (e.g., large “army” revolvers) and small, concealable pocket pistols (e.g., derringers).
- Defendants argued the law violated the Second Amendment and Tennessee Constitution Article I, § 26, which protects the right “to keep and bear arms for their common defense” while allowing the legislature to “regulate the wearing of arms with a view to prevent crime.”
- Andrews was convicted in circuit court and appealed.
- O’Toole moved to quash the indictment as unconstitutional and as insufficient for failing to specify what type of pistol was carried; the trial court quashed, and the State appealed.
- Custer was fined and ordered imprisoned after submitting on the charge; the State appealed a separate denial of its request to require a peace bond.
- The Tennessee Supreme Court heard the matters together and issued a single opinion addressing the statute’s constitutionality and related charging concerns.

## Issues

1. Whether the Second Amendment restricts Tennessee’s power to regulate or prohibit the carrying of arms.
2. Whether Article I, § 26 of the Tennessee Constitution permits the legislature to prohibit the carrying of pistols, or only to regulate the wearing of arms to prevent crime.
3. Whether the 1870 statute is invalid insofar as it applies to military-type arms, and whether an indictment alleging only “carrying a pistol” is defective given the distinction between protected and unprotected pistols.

## Decision

- The court held the Second Amendment did not limit Tennessee legislation and provided no basis to invalidate the statute.
- The court interpreted Tennessee’s Article I, § 26 to secure an individual right to keep arms suitable for the “common defense,” meaning arms of a military character, along with ordinary incidents of keeping such arms (including acquisition, practice, maintenance, and transportation).
- The court held the legislature may regulate the wearing of arms to prevent crime but may not enact measures that effectively nullify or substantially destroy the constitutional protection for military-type arms.
- The court invalidated the 1870 statute to the extent it prohibited keeping or bearing arms in common military use (including large “army” pistols/revolvers and similar arms of civilized warfare).
- The court upheld the statute as applied to weapons not associated with common defense or military utility, including small, easily concealable pistols (such as derringers) and other weapons viewed as typically used in private violence or crime.
- The court’s reasoning supported the view that, where constitutionality turns on the weapon’s type, a charge alleging only “carrying a pistol” may be insufficient unless it identifies a pistol within the statute’s valid reach.

## Legal Principles

- The federal Second Amendment, as then understood, constrained the federal government and did not apply to state legislation.
- Under Tennessee Constitution Article I, § 26, the protected “arms” are those of military character suitable for the common defense, not weapons typically associated with private affrays or criminal misuse.
- The legislature’s power to “regulate the wearing of arms with a view to prevent crime” permits manner-based and crime-prevention measures but does not authorize a prohibition that destroys the right as to protected arms.
- Statutes restricting weapons may be valid when limited to concealable or non-military weapons, even if invalid when applied to military-type arms.

## Conclusion

The Tennessee Supreme Court upheld the state’s authority to regulate the wearing of arms to prevent crime but held the 1870 pistol restriction unconstitutional insofar as it prohibited citizens from keeping or bearing military-type arms protected by Article I, § 26, while sustaining restrictions on concealable, non-military weapons.


Andrews v. State, 50 Tenn. 165 (Tenn. 1871)