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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":
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"The Fact That Citizens Have a Constitutional Right To Bear Arms":

My post below about yesterday's Washington Supreme Court case reminded me that a week before the Kentucky Supreme Court expressed the same view:

Moreover, the statute provides that personal property is merely subject to forfeiture, meaning that the Commonwealth's argument in favor of automatic forfeiture [of the firearms] cannot be correct, especially in light of the fact that citizens have a constitutional right to bear arms and a right to due process of law. [Footnote: Ky. Const. §§ 1(7), 11; U.S. Const. amend. II, V, and XIV.]

Brewer v. Commonwealth, 2006 WL 3386645, *3 & n.5 (Nov. 22, 2006).

I should note that the dominant view in state courts remains that the Second Amendment is not applicable to the states, whether or not it secures an individual right. See Brewer v. State, 2006 WL 3345162, *2 (Ga. Nov. 20, 2006). The Court had indeed so held in the late 1800s, at a time when it was holding that most of the other Bill of Rights provisions don't apply to the states, even via the Bill of Rights. The leading case on this is United States v. Cruikshank, a 1875 case that held that neither the First nor the Second Amendments applied to the states; the Court reversed course on this in the 1920s and 1930s as to the First Amendment, but it hasn't revisited this question since 1900 as to the Second Amendment.

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Pennsylvania Supreme Court Treats Second Amendment as Involving an Individual Right:

D'Allesandro v. Pennsylvania State Police involves the question whether hearsay rules apply to administrative proceedings governing the issuance of concealed carry permits. Here's the brief discussion of the Second Amendment (paragraph break added):

[T]his Court has stated that an individual should not be faced with sacrificing “‘inherent and indefeasible rights’” for the sake of prosecutorial convenience in the administrative setting. A.Y., 641 A.2d at 1150. In A.Y., an individual sought removal of her name from the Statewide Child Line and Abuse Registry as a suspected child abuser following an administrative determination based solely on hearsay evidence. Noting the common evidentiary problems accompanying child abuse cases and the serious consequences for an individual labeled as a suspected child abuser, this Court adopted the evidentiary guidelines in Rule 807 of the Uniform Rules of Evidence for use in administrative proceedings in suspected child abuse cases, guidelines which are similar to the standard later adopted at 42 Pa.C.S. § 5985.1 by the General Assembly for use in criminal proceedings involving child abuse. Id. at 1152.

The present matter involves appellee’s right to bear arms, which implicates the Second Amendment of the United States Constitution, U.S. CONST. amend. II. (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”). It has been the practice of Pennsylvania courts to afford heightened evidentiary protection of “inherent and indefeasible rights” in administrative proceedings.

For the purposes of this opinion, we assume such a right is implicated, and thus, we will evaluate a denial of a license to carry a firearm according to the standard hearsay rules governing more formal judicial proceedings....

The opinion is not entirely clear here on many points, but the one thing it pretty clear does do is treat the right to bear arms as individual. I don't think the court is treating the Second Amendment as binding in these situations -- among other things, the court would then have had to discuss whether the right is incorporated against the states via the Fourteenth Amendment. Nor is it expressly saying the right is "inherent and indefeasible," since it's just assuming this for the purposes of this opinion.

But the court is saying that cases involving individual gun rights "implicate" the Second Amendment, which requires a judgment that the Second Amendment is about individual rights, not just a state's right or a right belonging to some state-run National Guard-type organization. In this, the court seems to be joining several state court systems that have held the same, and opposing slightly more that have held the opposite. From the D.C. Circuit's decision in Parker v. D.C.:

Of the state appellate courts that have examined the question, at least seven have held that the Second Amendment protects an individual right, see Hilberg v. F.W. Woolworth Co., 761 P.2d 236, 240 (Colo. Ct. App. 1988); Brewer v. Commonwealth, 206 S.W.3d 343, 347 & n.5 (Ky. 2006); State v. Blanchard, 776 So. 2d 1165, 1168 (La. 2001); State v. Nickerson, 126 Mont. 157, 247 P.2d 188, 192 (Mont. 1952); Stillwell v. Stillwell, 2001 Tenn. App. LEXIS 562, 2001 WL 862620, at *4 (Tenn. Ct. App. July 30, 2001); State v. Anderson, 2000 Tenn. Crim. App. LEXIS 60, 2000 WL 122218, at *7 n.3 (Tenn. Crim. App. Jan. 26, 2000); State v. Williams, 158 Wn.2d 904, 148 P.3d 993, 998 (Wash. 2006); Rohrbaugh v. State, 216 W. Va. 298, 607 S.E.2d 404, 412 (W. Va. 2004), whereas at least ten state appellate courts (including the District of Columbia) have endorsed the collective right position, see United States v. Sandidge, 520 A.2d 1057, 1058 (D.C. 1987); Commonwealth v. Davis, 369 Mass. 886, 343 N.E.2d 847, 850 (Mass. 1976); In re Atkinson, 291 N.W.2d 396, 398 n.1 (Minn. 1980); Harris v. State, 83 Nev. 404, 432 P.2d 929, 930 (Nev. 1967); Burton v. Sills, 53 N.J. 86, 248 A.2d 521, 526 (N.J. 1968); In re Cassidy, 268 A.D. 282, 51 N.Y.S.2d 202, 205 (N.Y. App. Div. 1944); State v. Fennell, 95 N.C. App. 140, 382 S.E.2d 231, 232 (N.C. Ct. App. 1989); Mosher v. City of Dayton, 48 Ohio St. 2d 243, 358 N.E.2d 540, 543 (Ohio 1976); Masters v. State, 653 S.W.2d 944, 945 (Tex. App. 1983); State v. Vlacil, 645 P.2d 677, 679 (Utah 1982); see also Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 470 N.E.2d 266, 269, 83 Ill. Dec. 308 (Ill. 1984) (stating in dicta that Second Amendment protects collective right).

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