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A Decision from the Rhode Island Supreme Court
You are probably looking at the title, and wondering, "Did we win? Or lose?" I think we won--but this is sufficiently strange decision that it doesn't fit into a simple headline. The case is Mosby v. Devine (R.I. 2004), and the question was how the Rhode Island Constitution's right to keep and bear arms provision affects the issuance of concealed carry licenses.1
Let me get the bragging out of the way first. This is the first state supreme court decision that has cited my scholarly work on the right to keep and bear arms. Unfortunately, it was the dissenting opinion that cited my work, but it's still better than being ignored.
As it happens, the majority opinion, while it didn't cite my research, might as well have, considering the conclusions to which it came. If the majority drove the same way that they wrote this opinion, would be pulled over by the police for weaving. It gets to a pretty reasonable outcome, but what a weird way it gets there.
This lawsuit involved two people, Mosby and Golotto, who applied to the Rhode Island Attorney General for permits, but were turned down. One of the applicants lives out of state; that's why he applied to the Attorney General, rather than to his city of residence. Rhode Island law authorizes the Attorney General to issue permits "upon a proper showing of need."
What was the need? Mosby's need was that he was a gun collector who sometimes travels with large amounts of money. Golotto, a self-employed shopkeeper, also travels with large amounts of money and was concerned about the number of robberies where his shop is located. The Attorney General rejected both applications, and refused to reconsider. (The Attorney General's office apparently had no published guidelines for who gets permits, until this suit was filed.)
Mosby and Golotto argued that the arbitrary way in which their applications were rejected violated the Rhode Island Constitution's right to keep and bear arms provision, adopted in 1842: "The right of the people to keep and bear arms shall not be infringed." Back in State v. Storms (R.I. 1973), the Rhode Island Supreme Court had recognized that this provision protects an individual right--but they weren't very clear back then on exactly what this right included. This time around, the majority answered the question of whether this is an individual right, or a collective right, in the way that politicians answer the question, "What is your favorite color?" with "plaid."
First, they made the claim--without any supporting evidence--that the Second Amendment and the arms provisions of some other state constitutions "implicitly, if not explicitly, encompass the concept of 'bearing arms' for the common defense." There are a few state RKBA provisions like that of Massachusetts that refer to "the common defense." Most of the other state constitutional RKBA provisions say nothing about "common defense," and have generally been recognized as protecting an individual right. The majority didn't even point to an incorrect decision or law review article to justify this claim--it just seems to come out of thin air.
The Rhode Island Supreme Court then went on to acknowledge that the 1973 Storms decision found it to be an individual right "subject, however, to reasonable regulation by the state in exercising its police power." So, which is it, a right "for the common defense" or an individual right? The Court changed course again, saying 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 are of the opinion that the 'keeping' and 'bearing' of arms involve different concepts." Here they point to Aymette v. State (1840), a Tennessee Supreme Court decision, and claim that "bear arms" means only for a military purpose--as part of a state militia. This might be a plausible argument, except the Tennessee Constitution's provision does specify "for the common defense" --unlike the Rhode Island Constitution. Furthermore, the Aymette decision rejected the idea that "keep" is an individual right, and "bear" is a collective right. The Aymette decision claimed that Tennessee could ban carrying of Bowie knives because they were not military weapons, and that the right to keep and bear arms was so the people could rise up in revolution against the state government.2
Then the Rhode Island Supreme Court's majority opinion gets seriously weird (but in a good sort of way) on us. Having argued that there is an individual right to "keep" but not to "bear," the Court decided that the particular statute by which the Rhode Island Attorney General "may" issue a permit was irrelevant to this case, because another statute required cities to issue permits. They pointed to § 11-47-11(a), a mandatory licensing provision that required any city or town to issue a license to "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… 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."
The Court decided that the mandatory license requirement meant, "the constitutional guarantee to keep and bear arms is fulfilled." The Court went on to say that, "Mosby, a resident of Massachusetts who holds several gun licenses from other states, was entitled to a 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." This seems to be saying that cities have very limited discretion to refuse a concealed weapon permit--even for non-residents. This isn't a "shall issue" law, but it does appear that Rhode Island cities and towns have very, very limited authority to refuse to issue permits.
Even more amazing is that the Court went on to say, "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." Wow! It seems that the Rhode Island Supreme Court believes that the state constitution guarantees a right to possess a firearm in one's home, although some forms of regulation might still be constitutional.
Even with respect to the discretionary authority of the Rhode Island Attorney General to issue permits, the Court held that were some limits: "[D]ecisions 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." Yes, I think that was a slap at how the Attorney General had dealt with applications in the past.
Then the Court gets a little more blunt about what they are expecting the Attorney General to do in the future: "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."
This is what our side has been saying for a long time, in state after state--discretionary permit systems have been abused. The Rhode Island Supreme Court has now said that a permit system must conform to the Rhode Island Constitution's right to bear arms. The Court doesn't say exactly what this means, but you can read between the lines, and see that the Court is telling the Attorney General to loosen up on issuance of permits.
The dissenting opinion by Justice Flanders is wonderful, because it points out the absurdity of the majority's opinion that claims "to keep arms" is an individual right, but "to bear arms" is a collective right: "[D]eciding 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 Justice Flanders cited my book For the Defense of Themselves and the State a number of times, even more gratifying to me is how many obscure cases that appear in my book were also cited in the dissent, and using the points that I made from those cases.
Amazingly enough, gun control groups immediately upon reading this decision were crowing about their great victory--which suggests that some people can't read, or can't beyond the first page of the decision. The Rhode Island Supreme Court seems 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 applicant" may prevent some people from getting permits); a requirement for the Attorney General, even when exercising discretion in issuing permits, not to be abusive about it; and that a permit system, to conform to the state constitution, must not be "illusory." This isn't a complete victory for our side, but it is close enough to pop the champagne corks.
I suspect with this decision now on the books, pro-gun lawyers will be looking for Rhode Island residents--and permit holders from nearby states--to apply for permits. Doubtless, many cities and towns will turn down most applicants--but our side now has a powerful tool to use, demanding that the licensing authorities explain why the applicant is not "suitable," since the majority opinion says that Mosby was a suitable person simply because he was licensed elsewhere, and was an "avid gun collector."
1 Mosby v. Devine, 2001-161-Appeal. (R.I. 2004), available at http://www.courts.state.ri.us/supreme/pdf-files/01-161.pdf, last accessed June 26, 2004.
2 Aymette v. State, 2 Humphreys 154, 155 (Tenn. 1840).