I concur in the judgment discharging the Relator because I think that Section 5100 R. G. S., 7202, C. G. L., is unconstitutional because it offends against the Second Amendment to the Constitution of the United States and Sec. 20 of the Declaration of Rights of the Constitution of Florida.
Proceedings in habeas corpus will lie for the discharge of one who is held in custody under a charge *Page 524
based on an unconstitutional statute. Lewis v. Nelson,
The statute, supra, does not attempt to prescribe the manner in which arms may be borne but definitely infringes on the right of the citizen to bear arms as guaranteed to him under Sec. 20 of the Declaration of Rights of the Florida Constitution.
I know something of the history of this legislation. The original Act of 1893 was passed when there was a great influx of negro laborers in this State drawn here for the purpose of working in turpentine and lumber camps. The same condition existed when the Act was amended in 1901 and the Act was passed for the purpose of disarming the negro laborers and to thereby reduce the unlawful homicides that were prevalent in turpentine and saw-mill camps and to give the white citizens in sparsely settled areas a better feeling of security. The statute was never intended to be applied to the white population and in practice has never been so applied. We have no statistics available, but it is a safe guess to assume that more than 80% of the white men living in the rural sections of Florida have violated this statute. It is also a safe guess to say that not more than 5% of the men in Florida who own pistols and repeating rifles have ever applied to the Board of County Commissioners for a permit to have the same in their possession and there has never been, within my knowledge, any effort to enforce the provisions of this statute as to white people, because it has been generally conceded to be in contravention to the Constitution and non-enforceable if contested. *Page 525
