Georgia Supreme Court Justices on the Second Amendment, Carrying Guns in Public, and Felons

Hertz v. Bennett (Ga. Sup. Ct. Nov. 4, 2013) rejects a Second Amendment objection to the denial of a concealed carry license. The petitioner, the court notes, had pleaded no contest to five felony counts — “three counts of aggravated assault with a deadly weapon, one count of shooting from a vehicle, and one count of possession of a short barrel weapon” — when he was 18, back in 1994. That suffices to disqualify him from a Georgia concealed carry license, notwithstanding the Second Amendment and the Georgia Constitution’s right to bear arms provision.

That’s not terribly noteworthy, since all courts that have considered the issue have upheld even total prohibitions on gun possession by people who had committed violent crimes. Hertz was not actually a convicted felon, because following his no contest plea the court had withheld adjudication, something done for first offenders in various jurisdictions. But Hertz had pled no contest to the felony charges, and the court said that this was sufficient to forfeit his right to carry guns.

But the concurrence of three of the seven Justices (Blackwell, joined by Hines and Nahmias) strikes me as more unusual and therefore interesting, both as to its view on the right to carry guns in public (a matter on which courts are split) and on the constitutional rights of felons with less serious criminal records:

I concur fully in the opinion of the Court, but I write separately to share a couple of observations about our consideration of the constitutional guarantees of the right to keep and bear arms. First, the opinion of the Court says that the right of law-abiding citizens to keep firearms in their homes is a principal concern of the constitutional guarantees, and that is true enough. See District of Columbia v. Heller (2008). But no one should misunderstand the Court to suggest that the constitutional guarantees extend only as far as the home. To the contrary, the Court today applies intermediate scrutiny to OCGA § 16–11–129, and in so doing, it acknowledges that the constitutional guarantees secure a right to carry firearms in public places, even if that right might be more limited than the right to keep firearms in the home.

Second, our decision today is a limited one. James Hertz was charged with several violent felonies involving the use of a firearm, as well as a felony involving the unlawful possession of a firearm. When he appeared in a Florida court to answer those charges, Hertz elected not to dispute the charges, and he instead entered a plea of nolo contendere, which the court accepted. And although the court did not enter a formal adjudication of guilt, it found a factual basis for the plea, and to the extent that Hertz did not acknowledge his guilt, it must have found sufficient evidence of his guilt. In these peculiar circumstances, the Court concludes that the State of Georgia may — consistent with the constitutional guarantees of the right to keep and bear arms — deny Hertz a license to carry firearms in a public place. With respect to the constitutional guarantees, the Court decides nothing more.