. (No. 16624.)
[State v. Nieto, 101 Ohio 409, 130 N.E. 663 (1920).]
WANAMAKER, J. (dissenting).
The specific question is the right to possession of a weapon in one's home, however humble, to defend one's inalienable right of life, liberty, person, property, and home. The mere fact that this question is so vital, and involves the rights of so many of our citizens in the above respects, would seem to justify a full statement of the grounds upon which this dissent is based.
Origin of Human Rights.--Human rights were born when humanity was born. Both were divine creations. They antedated states, kings, and parliaments. States, Constitutions, and statutes followed centuries after. The latter were human creations. Their primary and paramount purpose was to conserve those human rights, not to deny or destroy them.
Confirmed in the Declaration of Independence.--More than a century and a half ago our American forefathers, as Englishmen, were seriously suffering from a general disregard of those human rights at the hands of the mother country. In old Independence Hall they unanimously recognized and revered those human rights in one of the opening paragraphs of that immortal American Magna Charta:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed (p.666)by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." ...
If these human rights were self-evident to our forefathers a century and a half ago, how comes it that they are doubtful now, or that either Legislature or courts may deny them, notwithstanding these guaranties of the sovereign people have been put into our written Constitutions? ...
...When the American colonist was transformed into an American citizen he still remembered his bitter experience with the mother country, in the abuse of parliamentary power, a clear violation of his rights as a free man. That parliamentary power was sovereign, absolute, unlimited. Even the last king who had vetoed it had lost his head; and no court had ventured to nullify it by judicial act....
... In order that their American government should not disregard human rights, as the English government had disregarded them, the Americans determined upon written constitutions to safeguard and guarantee those rights. Accordingly, our Ohio fathers, both in 1802 and 1851, adopted as a part of their Constitution a Bill of Rights, which they placed first in order, because those rights were first in importance....
Ohio Constitution of 1851--Article I.Bill of Rights.
"Section 1. All men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and seeking and obtaining happiness and safety.
"Sec. 2. All political power is inherent in the people. Government is instituted for their equal protection and benefit," etc.
"Sec. 4. The people have the right to bear arms for their defense and security....
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