## Facts

- Robert Wilburn was indicted in the Circuit Court of Wilson County for carrying weapons contrary to Tennessee’s 1871 weapons statute.
- Wilburn carried two pistols: an army-pattern revolver and a non-army pocket pistol.
- The indictment had two counts:
  - A count alleging he carried pistols not commonly carried and used in the United States Army.
  - A count alleging he unlawfully carried an army pistol “privately and concealed, and not openly in his hands.”
- The trial court quashed the second count on Wilburn’s motion; the record did not state the ground for quashal.
- Wilburn was tried on the first count and acquitted.
- The State appealed only the order quashing the second count.

## Issues

1. Whether Tennessee’s 1871 statute, requiring an army pistol to be carried only “openly in the hands” and forbidding private or concealed carry, was constitutional under the state right-to-bear-arms provision.
2. Whether an indictment count alleging that the defendant carried an army pistol “privately and concealed, and not openly in his hands” sufficiently stated an offense under the statute.

## Decision

- The Tennessee Supreme Court reversed the order quashing the second count and remanded for further proceedings.
- The court held the 1871 statute was a valid regulation of the manner of bearing arms rather than an unconstitutional prohibition.
- The court held the second count substantially tracked the statutory language and adequately charged an indictable offense.

## Legal Principles

- A constitutional right to keep and bear arms permits legislative regulation of the manner of carrying arms, so long as the regulation does not effectively destroy the right.
- A statute may forbid carrying an army-pattern pistol in a concealed or private manner and may require open carry “in the hands,” consistent with the state constitutional guarantee.
- An indictment is sufficient when it alleges the essential statutory elements with reasonable certainty and substantially follows the statute’s terms.

## Conclusion

The court upheld Tennessee’s 1871 weapons statute as a permissible regulation of how an army pistol could be carried and ruled that a count charging concealed, non-in-hand carriage of an army pistol properly alleged a prosecutable offense, requiring reinstatement of the quashed count.


State v. Wilburn, 66 Tenn. 57 (1872)