----- Original Message ----- From: "Joseph E. Olson" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Monday, June 14, 2004 12:00 PM Subject: [inbox] Rhode Island RKBA decision.
> 29 page opinion; 54 page dissent. > > http://www.courts.state.ri.us/supreme/pdf-files/01-161.pdf This is a bizarre decision. My comments: http://www.claytoncramer.com/weblog/2004_06_13_archive.html#108726801311176362 Rhode Island Supreme Court Decision The first time that I have been cited in a state supreme court decision! (Okay, it's the dissent, but I'm still happy.) Rhode Island has a discretionary permit law; the Rhode Island Supreme Court has just handed down a decision based on a lawsuit by two people who applied for permits, but were turned down. The decision is here. There are a variety of interesting points in the majority opinion: "In 1998, plaintiffs submitted separate applications to the department seeking permits to carry concealed weapons pursuant to the Firearms Act, G.L. 1956 chapter 47 of title 11. The department, under � 11-47-18(a), is authorized to issue a concealed weapons permit "upon a proper showing of need." According to plaintiffs' complaint, Mosby sought a permit because he is a gun collector who sometimes travels with large amounts of money. Golotto, a self-employed shopkeeper, submitted his application because he also travels with large amounts of money and is concerned about the number of robberies in the area where his shop is located." After rejecting the plaintiffs' applications, and refusing to reconsider: "In June 1999, the department first promulgated a document setting forth its guidelines for reviewing applications to obtain a permit under the Firearms Act. At the time plaintiffs submitted their applications, the department had no written guidelines explaining the application process or the criteria used to review applications. The plaintiffs' applications were judged based on an unpublicized standard, under which individual applications were considered on a case-by-case basis. Decisions of the department were made based upon whether the applicant had demonstrated "an articulable risk" to his life or property and whether the applicant could change his lifestyle to prevent the need for a permit." I'm not sure what "lifestyle" would put you at risk. An occupation might; a particular residence might. Tell me, why should any law-abiding citizen have to change their "lifestyle" to reduce their risk? It might be wise, but why should the victims have to change, rather than put the criminals at risk? The decision is definitely trying to have it both ways about what the Rhode Island Constitution's right to keep and bear arms provision protects. First, they make the claim--without any supporting evidence--that: "Article 1, section 22 of the Rhode Island Constitution provides that: "[t]he right of the people to keep and bear arms shall not be infringed." By its express terms, it cannot be denied that art. 1, sec. 22 recognizes some form of a right to keep and bear arms. To discern the nature and extent of the right, however, we must look beyond the plain text of that provision. It seems clear from even a cursory review of the various versions of the right to bear arms, as reflected in the Second Amendment to the United States Constitution and in several state constitutions, that these provisions implicitly, if not explicitly, encompass the concept of "bearing arms" for the common defense." There are a number of state constitutional provisions, some of which, like Massachusetts, that refer to "the common defence," but many others that are just as unadorned as the Rhode Island provision, which make no reference to common defense at all. The Rhode Island Supreme Court then went on to acknowledge that its only previous ruling on the meaning of the Rhode Island Constitution's provision, in State v. Storms (R.I. 1973) found it to be an individual right: "As we discuss infra, based on the text, structure and history of the constitution, we hold that art. 1, sec. 22 provides individuals with a right to keep and bear arms, subject, however, to reasonable regulation by the state in exercising its police power." Hmmm. So why would a right "for the common defense" be an individual right? Then the Court agrees, after much hemming and hawing, that the right is individual: "There is no indication that the framers of the Rhode Island Constitution intended to attribute a restricted meaning to the phrase "the people" in art.1, sec. 22. Accordingly, we attribute the ordinary meaning to the phrase "the people;" i.e., that it includes all inhabitants of the state. Thus, like the right to be free from unreasonable searches and seizures and other rights provided to "the people," we believe that the right provided in art. 1, sec. 22 flows to the people individually." Okay, that's clear enough. Now they start hemming and hawing again: "We now must consider what the right to "keep and bear" arms entails. We are of the opinion that the "keeping" and "bearing" of arms involve different concepts. So holding, we are able to attribute significance to both of the terms use in that phrase. See Sundlun, 662 A.2d at 45 (noting that constitutional terms imply a definite meaning)." Then they claim that Aymette v. State (Tenn. 1840) should be the controlling determinant of what "keep" and "bear" mean, and that only for a military purpose should the right to "bear" arms be understood. The problem is that the Tennessee Constitution's provision does specify "for the common defence"--unlike the Rhode Island Constitution's provision. Furthermore, the Aymette decision explicitly rejected the dichotomy between "keep" and "bear" that the Rhode Island Supreme Court is making here: "The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence." Then the decision goes weird on us. Having argued that there is a right to "keep" but not to "bear," the Court then decides that the particular statute by which the Rhode Island Attorney General "may" issue a permit is somewhat irrelevant, because another statute requires issuance: "Two separate and distinct licensing procedures are set forth in the Firearms Act: � 11-47-18, now before the Court, provides for the discretionary grant of a firearms license by the department "upon a proper showing of need," and � 11-47-11(a), a mandatory licensing provision that provides in pertinent part: "The licensing authorities of any city or town shall, upon application of any person twenty-one (21) years of age or over having a bona fide residence or place of business within the city or town, or of any person twenty-one (21) years of age or over having a bona fide residence within the United States and a license or permit to carry a pistol or revolver concealed upon his or her person issued by the authorities of any other state or subdivision of the United States, issue a license or permit to the person to carry concealed upon his or her person a pistol or revolver everywhere within this state for four (4) years from date of issue, if it appears that the applicant has good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver, and that he or she is a suitable person to be so licensed." (Emphases added.) Because the Firearms Act provides for both discretionary and mandatory licensing to qualified applicants, the constitutional guarantee to keep and bear arms is fulfilled. Mosby, a resident of Massachusetts who holds several gun licenses from other states, was entitled to a carrying permit from the licensing authority of any city or town. An avid gun collector, plaintiff has a proper reason for carrying a pistol or revolver and there is no suggestion that he is an unsuitable person. In contrast to � 11-47-18, the statute now before the Court, � 11-47-11 is mandatory - an applicant who meets the criteria set forth in � 11-47-11 is entitled to a gun permit.... Because anyone who meets the conditions of � 11-47-11 is entitled to a gun permit, this mandatory requirement supplies the necessary safeguards to the right to bear arms in this state and vindicates the rights set forth in art. 1, sec. 22, of the Rhode Island Constitution. Thus, the fact that the Firearms Act contains an additional licensing provision by which the department may issue a gun permit under certain, more stringent, conditions does not affect our holding. As argued by the state and found by the trial justice, the inclusion of the word "may" in � 11-47-18(a) expressly confers broad discretion upon the department to issue or decline to issue gun permits. This does not, however, have an impact upon "the right of the people to keep and bear arms." ... Consequently, although the Firearms Act regulates and prohibits the ownership and possession of numerous weapons, including handguns, the statute includes both mandatory and discretionary licensing provisions that satisfy the constitutional guarantee to keep and bear arms. The citizens of this state are free to possess a rifle or a shotgun, or a pistol or revolver in their homes, places of employment and on their property. Therefore, due process concerns are not triggered and Mosby is not entitled to a hearing on his initial application filed under � 11-47-18(a)." Wow! At least we have a clear statement of a rifle to possess a firearm in one's home, and that cities have very limited discretion to refuse a concealed weapon permit--even for non-residents. Even with respect to the discretionary authority of the Rhode Island Attorney General on the issuance of permits, there are some limits: "Although we are satisfied that the licensing scheme set forth in the Firearms Act is both reasonable and lawful, we are mindful that decisions of the Attorney General in licensing matters are not immune from judicial review. As this Court's decision in Storms clearly indicates, the Attorney General's role under the Firearms Act is that of a finder of fact, not a master of puppets." And then they tell the Attorney General that they had better behave themselves: "As a matter of policy, this Court will not countenance any system of permitting under the Firearms Act that would be committed to the unfettered discretion of an executive agency. Although the court's authority to review the decision is limited, it is not nonexistent. 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. 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." I am overjoyed to report that this is the decision that the gun control groups have been crowing about all weekend long. They seem to have recognized a right to keep a gun in your home; a requirement for cities to issue permits on a non-discretionary basis (although the definition of "suitable" may cause some problems); a requirement for the Attorney General, even when issuing discretion, not to be corrupt about it; and that a permit system must not be "illusory." The dissenting opinion by Justice Flanders, of course, is wonderful, because it cites one of my books (my first citation in a state supreme court decision), but also because it points out the absurdity of the majority's opinion that tries to make "keep" and individual right, but "bear" a collective right: Thus, deciding constitutional cases is not an exercise in mediation or alternative dispute resolution. Attempts to "split the baby in half" when resolving constitutional questions are more apt to result in a doctrinal bloody mess than a correct resolution of the issues to be decided. While my book For the Defense of Themselves and the State gets cited a number of times, even better is how many obscure cases from my book get cited in the dissent as well--and using the points that I made from those cases. Clayton E. Cramer _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
