01:00 AM EDT on Friday, June 11, 2004
BY GERALD M. CARBONE
Journal Staff Writer
PROVIDENCE -- A gun collector who sued the attorney general for denying his request for a concealed weapons permit has lost his battle but won a larger point.
In a 4-to-1 decision released yesterday, the state Supreme Court ruled that when the attorney general denies a request for a concealed weapons permit, his staff must provide reasons for the denial.
The decision did not help Charles H. Mosby Jr., the Massachusetts gun collector who brought the case after former Attorney General Sheldon Whitehouse rejected his application for a weapons permit.
The Supreme Court ruled that a lower court was correct to dismiss Mosby's request for judicial review of the attorney general's denial, because that request should have been made directly to the Supreme Court. If Mosby had asked the Supreme Court for a "writ of certiorari" to review the record, it would have demanded an explanation of the procedures used in reaching the denial.
Chief Judge Frank J. Williams wrote: "We hold that the attorney general must adhere to minimum procedural requirements when rejecting an application" under the state's firearms law. "A rejected applicant is entitled to know the evidence upon which the department based its decision and the rationale for the denial."
Although Mosby will not get his permit as a result of the suit, his lawyer, David Strachman, hailed the ruling as a "civil rights victory."
"There's a lot of good in the decision," Strachman said. "Can the government regulate a constitutional right by whim, or do they have to have some [form] of due process?"
The constitutional right in this case is the right to keep and bear arms spelled out in Article 1 of the Rhode Island Constitution.
The majority of the court found that Rhode Islanders have a right to keep any legal firearm they desire in their homes, but they have no absolute right to bear firearms in public unless they are part of a recognized militia.
In a 53-page dissent, Justice Robert G. Flanders Jr. rejected that notion, noting that the phrase "to bear" arms has long applied to civilians as well as to military personnel, and the Constitution meant to give the right to bear arms to all Rhode Islanders. The government can reasonably limit the right to carry arms, Flanders wrote, but it can not arbitrarily deny that right.
Flanders argued that aggrieved gun owners should be allowed to petition the Superior Court under the Administrative Procedures Act governing contested cases.
The majority disagreed, ruling that people denied a permit must appeal directly to the Supreme Court for review of the procedures that the attorney general used in reaching that determination.
"One does not need to be an expert in American history to understand the fault inherent in a gun-permitting system that would allow a licensing body carte blanche authority to decide who is worthy of carrying a concealed weapon," Williams wrote for the majority. "The constitutional right to bear arms would be illusory, of course, if it could be abrogated entirely on the basis of an unreviewable unrestricted licensing scheme. Such review is available through a common-law writ of certiorari" directing the attorney general to deliver the record of the case for Supreme Court review.
http://www.projo.com/news/content/projo_20040611_guns11.2d963.html
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