Defendant argues 2nd Amendment conveys unfettered right to carry a handgun
By Barry Bridges
BridgeTower Media Newswires
PROVIDENCE, RI — A Second Amendment challenge to the public-carry permitting provisions of the Rhode Island Firearms Act has been rejected by a Superior Court judge who concluded that licensing statutes concerning pistols and revolvers are “substantially related” to the state’s interests in public safety and crime prevention, therefore satisfying the applicable intermediate scrutiny test for constitutionality.
The ruling comes in the case of defendant Jason Ortiz, who faces a felony count for unlawfully carrying a pistol without a license or permit. Moving to dismiss the charges, he argued the Second Amendment conveys an unfettered right to carry a handgun in public for self-defense, one that cannot be intruded upon by permit laws.
But in turning away that argument, Judge Robert D. Krause countered that the U.S. Supreme Court has clearly stated that the Second Amendment is not unlimited and has “never declared that [it] confers unbridled immunity to carry a firearm in public, impervious to government oversight.”
The judge also explained that the U.S. Supreme Court holdings in District of Columbia v. Heller and McDonald v. City of Chicago, contrary to Ortiz’s assertions, do not support his constitutional objections as those cases concerned regulations restricting handgun possession in citizens’ homes.
“Although neither Heller nor McDonald offered particularized standards for determining when or how Second Amendment rights might permissibly be regulated outside residential boundaries, it is clear, contrary to Ortiz’s druthers, that Heller did not ‘effectively hit the reset button for all Second Amendment jurisprudence,’” Krause continued.
And considering the relationship of the permitting law to the state’s public safety objectives, Krause concluded the statute is constitutional under the intermediate scrutiny test applicable to conduct outside the home.
Krause’s examination of the Firearms Act, G.L. §11-47-1, et seq., in the context of the Second Amendment expands upon the Rhode Island Supreme Court’s analysis of the statute in 2004’s Mosby v. Devine, in which it deemed the public-carry law consistent with the state constitution. The court stated therein, even before Heller, that an individual’s right to possess a firearm beyond the home is subject to “reasonable regulation by the state in exercising its police power.”
Daniel E. Ciora of the Rhode Island Public Defender’s Office is representing Ortiz. Katelyn M. Revens is handling the case for the Attorney General’s Office. Neither department responded to requests for comments.
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Threshold issue
In July 2018, Pawtucket police officers chased 19-year-old Jason Ortiz on foot through city streets and a public library after he allegedly assaulted his girlfriend.
During the pursuit, surveillance cameras purportedly showed the defendant discarding a handgun just before he was apprehended. Based on the video footage, police found a loaded pistol in the area where he was captured.
A criminal information was filed in February 2019, charging Ortiz with a felony count of unlawfully carrying a pistol without a license or permit under G.L. §11-47-8(a), in addition to the misdemeanors of domestic assault, domestic disorderly conduct, and resisting arrest.
Ortiz moved to dismiss the firearms charge, maintaining that the public-carriage permitting laws of the Rhode Island Firearms Act violate the Second Amendment as interpreted by the U.S. Supreme Court in Heller and McDonald.
A question at the outset was whether Ortiz had standing to mount such a challenge, since the state produced evidence from the Bureau of Criminal Identification and from 38 cities and towns that he never applied for a permit and therefore had never been denied one. That was problematic in light of the 2017 holding of the 1st U.S. Circuit Court of Appeals in Morin v. Leahy that a party’s failure to apply for a permit was sufficient reason to deny him standing to criticize the constitutionality of the underlying statute.
Moreover, Krause pointed out, Ortiz could not have obtained a carry permit at the time of the alleged offense because he did not satisfy age or residency requirements.
Nonetheless, the judge allowed the claim to proceed.
“[B]ecause of the substantial importance and the nature of the constitutional question presented in the instant case, and knowing that it will assuredly be a frequently recurring issue in future firearm prosecutions, this court concludes that ... the merits of his claim must be addressed ... [and] will accord Ortiz a platform, even if rickety, from which to advance his claims,” Krause wrote.
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Intermediate scrutiny
Turning to the merits, Krause first looked to Ortiz’s contention that the Heller and McDonald decisions, both of which addressed regulations precluding individuals from possessing handguns, give support to his position on the constitutionality of Rhode Island’s public-carry law.
But Krause quickly emphasized the narrowness of those cases, finding the defendant had “misread, much too expansively” their limited holdings.
The judge explained that in tossing a District of Columbia handgun ban, Heller identified the Second Amendment’s core protection as “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” McDonald, in invoking the 14th Amendment’s Due Process Clause to extend Heller to the states, likewise did not speak of rights “beyond [the] ... castle.”
Even before Heller, Krause continued, the Rhode Island Supreme Court in Mosby explained that the intent of the state’s Firearm Act was not “to infringe upon the privacy of any family, home or business,” but that the right to possess a handgun is not absolute and is subject to reasonable regulation.
“Allowing the free exercise of a constitutional right within one’s home, but statutorily tethering that conduct outside of the residence, is neither novel nor impermissible,” the judge wrote. “‘Many constitutional rights are virtually unfettered inside the home but become subject to reasonable regulation outside of the home.’”
Moving on, Krause explained that for conduct beyond the “core right” protected by the Second Amendment — the right of citizens to possess firearms in defense of their homes, as identified by Heller — a regulation’s constitutionality is analyzed through an intermediate level of scrutiny. To satisfy that intermediate test, the statute must “substantially relate” to one or more important governmental interests.
On that front, Rhode Island’s carrying laws pass muster, according to Krause.
“Ortiz’s remonstration at oral argument that there is no compelling or worthwhile government objective ... to support intermediate scrutiny of this state’s Firearm Act is an ill-conceived notion which is easily outbalanced on any fulcrum,” he wrote. “Rhode Island, like all states, has a paramount objective and responsibility in public safety and crime prevention, and ‘few interests are more central to a state government than protecting the safety and well-being of its citizens.’”
The judge pointed to several rationales supporting permitting laws. For example, states with more restrictive licensing schemes for the public carriage of firearms have experienced lower rates of gun-related homicides and other violent crimes; gun owners are more likely to be the victims of violence when they carry their weapons in public; and licensing regulations reduce the likelihood that less lethal confrontations may turn deadly.
“Put simply, firearms create or exacerbate accidents and deadly encounters. Permit laws reduce those risks,” Krause said.
The essential question, he reiterated, was whether Rhode Island’s statutes requiring firearm permit laws, which were validated under the Rhode Island Constitution by Mosby 16 years ago, also survive the intermediate scrutiny test under the Second Amendment.
“There is no dispute that reducing catastrophic gun violence and the harm caused by the misuse of firearms, whether by accident or design, are more than just important government interests; they are compelling and paramount ones,” he wrote. “The only dispute is whether [the subject] statutes are reasonably adapted to address those interests. They are.”
