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"Citizens Have a Constitutional Right To Bear Arms Under Both the Federal and State Constitutions":

So says the Washington Supreme Court, State v. Williams, 2006 WL 3438188 (decided yesterday), and uses this as a justification for interpreting a state ban on possessing short-barreled shotguns as requiring knowledge that the shotgun was indeed shorter than the statutory limit. Here's the relevant excerpt from the three-Justice plurality:

[W]e are ... concerned that possessing a firearm can be innocent conduct. Citizens have a constitutional right to bear arms under both the federal and state constitutions. U.S. Const. amend. II; Wash. Const. art. I, § 24. A person may lawfully own a shotgun so long as the barrel length is more than 18 inches in length and has an overall length of less than 26 inches. RCW 9.41.190 precludes possession of a short-barreled shotgun. Moreover, the statute also criminalizes possession of a short-barreled rifle and a machine gun. The factor concerned with innocent conduct is particularly important in the case of a machine gun, which can be altered in ways not easily observable. If strict liability is imposed, a person could innocently come into the possession of a shotgun, rifle, or weapon meeting the definition of a machine gun but then be subject to imprisonment, despite ignorance of the gun's characteristics, if the barrel turns out to be shorter than allowed by law or the weapon has been altered, making it a machine gun. The legislature likely did not intend to imprison persons for such seemingly innocent conduct.

The four-Justice dissent agrees entirely on this point:

These holdings involve a particularly sensitive and limited area of regulation, since both the United States and Washington State Constitutions protect a "right ... to bear arms ...." U.S. Const. amend. II; Wash. Const. art. I, § 24.... The majority's recognition that the State must prove a defendant knows the characteristics that make a firearm illegal means that knowledge of the characteristics that make the firearm illegal is an essential element of the crime....

The plurality and the dissent disagree on whether the failure to instruct the jury about the defendant's required mental state was harmless in this case, but they agree that the Second Amendment protects the right to bear arms, and that this counsels against reading the statute as imposing strict liability.

As you can see, neither opinion explained much about why it was accepting the individual rights view of the Second Amendment, but just cited the Second Amendment and the Washington right-to-bear-arms provision.

UPDATE: I originally quoted the plurality without noting that it was a plurality, and didn't mention the dissent; my mistake — thanks to commenter marksleen for pointing out. I've corrected the post accordingly, and the bottom-line remains the same: A majority of the Washington Supreme Court treated the Second Amendment as securing an individual right to bear arms.

Related Posts (on one page):

  1. Pennsylvania Supreme Court Treats Second Amendment as Involving an Individual Right:
  2. "The Fact That Citizens Have a Constitutional Right To Bear Arms":
  3. "Citizens Have a Constitutional Right To Bear Arms Under Both the Federal and State Constitutions":
Paul Sherman:
As you can see, the court didn't explain much about why it was accepting the individual rights view of the Second Amendment, but just cited the Second Amendment and the Washington right-to-bear-arms provision.

I'd like to think they didn't explain more because, as a colleague of mine recently put it, that conclusion flows ineluctably from the text, history, and purpose of the Second Amendment.
12.1.2006 7:38pm
Brian Macker (mail) (www):
Well if there is a right to bear arms then why did the allow the restrictions to stand?
12.1.2006 7:44pm
PeteRR (mail):
"A person may lawfully own a shotgun so long as the barrel length is more than 18 inches in length and has an overall length of less than 26 inches.

Should be more than
12.1.2006 8:01pm
marksleen (mail):
Just glanced at the decision from the Washington State Courts website. The "majority" with the language about the right to bear arms was signed by three justices. Two signed a concurrence concurring in the result. Four justices signed a dissent.
12.1.2006 8:19pm
Aukahe:

Well if there is a right to bear arms then why did the allow the restrictions to stand?

Do the courts not recognize a right to speech while upholding limits on speech?
12.1.2006 8:37pm
Eugene Volokh (www):
Marksleen: Thanks for the correction; I've updated the post accordingly, but the bottom line remains the same, since both the plurality and the dissent took the view I describe.
12.1.2006 10:16pm
Clayton E. Cramer (mail) (www):
This is really no great surprise. As far back as Nunn (Ga. 1846) and as recently as State v. Nickerson Mont. 1952), state supreme courts have recognized the Second Amendment as a protection of individual rights from state regulation. The disconnect between state and federal jurisprudence on this is incredibly dramatic.
12.2.2006 12:53am
Scott Spadafore (mail):
I spotted the same error as PeteRR. However the correct statement, according to statute, is that the overall length of the gun must not be less than 26 inches. It is not correct to say that the gun's overall length must be more than 26 inches to be legal. A 26-inch gun is legal, so long as the barrel length complies with the statute.
12.2.2006 6:02am
K Parker (mail):
Clayton: sure, it's not a great surprise, but still I breath a big sigh of relief every time our Supreme Court does get something right. It's by no means something to take for granted. :-(
12.2.2006 10:25am
Brian Macker (mail) (www):
"Do the courts not recognize a right to speech while upholding limits on speech?"

Speech is only properly limited to prevent it from being used to violated individual rights. For instance, falsely reporting a fire in order to disrupt a public performance would be violating the participants right to assemble and trade.

I don't see how having a particular barrel length violates anyone elses rights.
12.2.2006 5:03pm
arbitraryaardvark (mail) (www):
I think Macker is right. The court said that there is a right to bear arms, but then violated that right by assuming the state could ban certain lengths or flavors or whatever.
(Not that I've read the opinion, just the above post.)
I might also want to reread Miller, a case that is often misunderstood. While the right to bear arms isn't/shouldn't be contingent on whether the arms in questions is used by militias, sawed off shotguns have a long history of use by the military,e.g. in the phillipines against the huk insurgents.
And a sawed off shotgun isn't much a different from the blunderbus and other arms common in the revolution.
12.2.2006 7:23pm
arbitraryaardvark (mail) (www):
I admit the defendent didn't raise an argument under his right to bear arms, federal or state.
The plurality convicted him of bearing arms.
What if anything can be done now?
A pardon? Complaints against the prosecutor?
Fire the cop? I don't know if there's any will in the state legislature to legalize the bearing of arms.
12.2.2006 7:48pm
Clayton E. Cramer (mail) (www):

The plurality convicted him of bearing arms.
No, of keeping arms--and barely so at that.


What if anything can be done now?
A pardon? Complaints against the prosecutor?
This is why the pardon power exists--to deal with situations where an injustice takes place because of deficiencies in the law that are applicable to a particular case.

Fire the cop? I don't know if there's any will in the state legislature to legalize the bearing of arms.
There might be will to define an exception for a case like this where a person unintentionally finds themselves in possession of an unlawful weapon, and make no constructive effort to use it.
12.2.2006 11:46pm