fishweewee
12-18-2003, 03:38 PM
Interesting. Lotsa luck to you Rhody guys.
-WW
R.I. Supreme Court hears gun-rights case
At issue is what is the proper procedure for issuing a concealed-weapon permit.
01:00 AM EST on Tuesday, December 9, 2003
BY EDWARD FITZPATRICK
Journal Staff Writer
PROVIDENCE -- The state Supreme Court yesterday took up the question of what it means to "keep and bear arms" in Rhode Island.
In a closely watched case, a Massachusetts gun collector and a Smithfield shop owner claim they were denied "due process" rights when the attorney general rejected their applications for concealed-handgun permits.
The case, which was dismissed by a Superior Court judge and appealed to the high court, has spurred debate about the section of the Rhode Island Constitution that says, "The right of the people to keep and bear arms shall not be infringed."
The state attorney general's office agrees that Rhode Islanders have the right to keep and bear arms in their homes, in their businesses and on their land. But it disagrees with the assertion -- made by the National Rifle Association and others -- that the right to bear arms includes a right to carry a handgun off a person's premises.
"There is no constitutional right to carry a concealable weapon," Assistant Attorney General Thomas A. Palombo said. "And we are on solid legal ground in saying that."
Gun-rights advocates argue that Rhode Islanders do have a right to "bear arms" even if they're not on their property. That right can be regulated through carry permits, they say, but not without hearings and other due-process steps that they claim were missing in this case.
"It is a strange anomaly in this state that a $10 parking ticket is afforded all sorts of due-process provisions" while the constitutional right to bear arms is not, plaintiffs' lawyer David J. Strachman told the Supreme Court.
The case has produced "friend of the court" briefs by groups ranging from the NRA to the Million Mom March, from the American Civil Liberties Union to the Rhode Island State Police.
"This is a very important issue nationally and for the State of Rhode Island," Palombo said after addressing the Supreme Court. "This issue is so polarized and so important that gun-rights advocates as well as advocates for gun control wanted to be heard, and the Supreme Court wanted to hear from them."
James W. Archer, president of Citizens Rights Action League, a Rhode Island group that defends the right to keep and bear arms, agreed that the stakes are high. "Since our state Constitution was first adopted in 1843, no one has ever litigated the extent, the parameters or the limitations of our right to keep and bear arms," Archer said.
Chief Justice Frank J. Williams said the high court agreed to have a "full briefing" and arguments on the case "because of the importance of the issue." A decision is expected in a month or two. Williams cautioned against guessing at how the judges will rule based on their questions yesterday.
Justice Maureen McKenna Goldberg asked Palombo, "If there is no constitutional right to carry a concealed weapon, then there is no due-process rights to a hearing?" Palombo said, "That's correct, your honor."
Justice Robert G. Flanders Jr. asked Palombo, "How can you defend yourself if you don't have a gun off your property?" Palombo said, "That's a good question. If one is attacked on South Main Street by a criminal with a handgun, retreat would be the best alternative."
The case began in 1999 after Charles H. Mosby Jr. and Steven Golotto were denied permits to carry concealed weapons. Mosby sought the permit because he is a gun collector who sometimes travels with firearms and large sums of money. Golotto, who owns a gourmet shop in Greenville, sought a permit because he also carries large sums of money and was concerned with the number of robberies in the area.
In response to their applications, Mosby and Golotto received the same preprinted form stating: "The Department of Attorney General has determined insufficient need to issue a permit for you to carry concealed weapons."
In court documents, Strachman said, "The attorney general's 'procedure' in determining applications . . . is nonexistent. He refused to disclose the standards utilized in making determinations, previous decisions or even his decision-making process. He denied the applicants an opportunity to be heard, a record, a hearing, or the basis for his decision prior to adjudication."
In court documents, Palombo emphasized that the law says the attorney general "may" issue a carry permit -- rather than "shall" issue a permit. Also, he noted permits are only issued "upon a showing of need."
Palombo said Mosby and Golotto did not show that need. A lot of people carry cash and merchandise, he said. And when the attorney general's office contacted the Smithfield police regarding crime in that area, it was told there were "no problems to be concerned with."
Palombo said former Attorney General Sheldon Whitehouse created a policy for carry permits shortly after taking office in January 1999. "No one in the state has a right to obtain a pistol permit," the policy states. "A pistol permit is a privilege left to the sound discretion of the attorney general."
Mosby and Golotto went to Superior Court in December 1999, claiming that the attorney general violated their civil rights and the Administrative Procedure Act. Superior Court Judge Michael A. Silverstein dismissed their complaint in January 2001, citing a 1973 Supreme Court case, State v. Storms, in which a man named Storms was convicted of unlawfully carrying a pistol without a license.
In the Storms case, the high court said "the prevailing view" was that "a constitutional guarantee to keep and bear arms is not infringed upon by legislation which, in broad terms, forbids the unlicensed carrying of a pistol or revolver upon one's person excepting only in his home and place of business or upon his land."
Silverstein concluded that based on the Storms case and the state Constitution, he was "unable to declare that a person in Rhode Island has a fundamental right to carry a weapon outside the limits of his or her own land or business with or without a license which, in turn, would entitle them to due-process protection when applying for a license."
In its "friend of the court" brief, the Citizens Rights Action League argues that the "prevailing view" has changed since the Supreme Court last touched upon this issue in 1973.
"In the 30 years since Storms was decided," Archer wrote, "at least 32 of the 50 states have come to issue permits or licenses to their citizens to carry concealed, loaded handguns for personal protection as a matter of right without requiring that they show any specific need, subject to generally non-discretionary criteria."
Another "friend of the court" brief was filed on behalf of the Brady Center to Prevent Gun Violence, the Rhode Island Police Chiefs Association and the Million Mom March Rhode Island chapter. It argued that "when considered in historical context, the Rhode Island Constitution provides a right to keep and bear arms only to 'the people' collectively and only in connection with military service. This right certainly does not include the carrying of loaded concealed handguns in public."
The NRA disagreed, stating, "The right to bear arms is a fundamental, personal right, and no person may be deprived of this right without due process of law. The right belongs to the people, and is not a code word for a 'collective' power of the state over the militia."
--------------------------------------------------------------------------------
Online at: http://www.projo.com/news/content/projo_20031209_guns9.a2db2.html
-WW
R.I. Supreme Court hears gun-rights case
At issue is what is the proper procedure for issuing a concealed-weapon permit.
01:00 AM EST on Tuesday, December 9, 2003
BY EDWARD FITZPATRICK
Journal Staff Writer
PROVIDENCE -- The state Supreme Court yesterday took up the question of what it means to "keep and bear arms" in Rhode Island.
In a closely watched case, a Massachusetts gun collector and a Smithfield shop owner claim they were denied "due process" rights when the attorney general rejected their applications for concealed-handgun permits.
The case, which was dismissed by a Superior Court judge and appealed to the high court, has spurred debate about the section of the Rhode Island Constitution that says, "The right of the people to keep and bear arms shall not be infringed."
The state attorney general's office agrees that Rhode Islanders have the right to keep and bear arms in their homes, in their businesses and on their land. But it disagrees with the assertion -- made by the National Rifle Association and others -- that the right to bear arms includes a right to carry a handgun off a person's premises.
"There is no constitutional right to carry a concealable weapon," Assistant Attorney General Thomas A. Palombo said. "And we are on solid legal ground in saying that."
Gun-rights advocates argue that Rhode Islanders do have a right to "bear arms" even if they're not on their property. That right can be regulated through carry permits, they say, but not without hearings and other due-process steps that they claim were missing in this case.
"It is a strange anomaly in this state that a $10 parking ticket is afforded all sorts of due-process provisions" while the constitutional right to bear arms is not, plaintiffs' lawyer David J. Strachman told the Supreme Court.
The case has produced "friend of the court" briefs by groups ranging from the NRA to the Million Mom March, from the American Civil Liberties Union to the Rhode Island State Police.
"This is a very important issue nationally and for the State of Rhode Island," Palombo said after addressing the Supreme Court. "This issue is so polarized and so important that gun-rights advocates as well as advocates for gun control wanted to be heard, and the Supreme Court wanted to hear from them."
James W. Archer, president of Citizens Rights Action League, a Rhode Island group that defends the right to keep and bear arms, agreed that the stakes are high. "Since our state Constitution was first adopted in 1843, no one has ever litigated the extent, the parameters or the limitations of our right to keep and bear arms," Archer said.
Chief Justice Frank J. Williams said the high court agreed to have a "full briefing" and arguments on the case "because of the importance of the issue." A decision is expected in a month or two. Williams cautioned against guessing at how the judges will rule based on their questions yesterday.
Justice Maureen McKenna Goldberg asked Palombo, "If there is no constitutional right to carry a concealed weapon, then there is no due-process rights to a hearing?" Palombo said, "That's correct, your honor."
Justice Robert G. Flanders Jr. asked Palombo, "How can you defend yourself if you don't have a gun off your property?" Palombo said, "That's a good question. If one is attacked on South Main Street by a criminal with a handgun, retreat would be the best alternative."
The case began in 1999 after Charles H. Mosby Jr. and Steven Golotto were denied permits to carry concealed weapons. Mosby sought the permit because he is a gun collector who sometimes travels with firearms and large sums of money. Golotto, who owns a gourmet shop in Greenville, sought a permit because he also carries large sums of money and was concerned with the number of robberies in the area.
In response to their applications, Mosby and Golotto received the same preprinted form stating: "The Department of Attorney General has determined insufficient need to issue a permit for you to carry concealed weapons."
In court documents, Strachman said, "The attorney general's 'procedure' in determining applications . . . is nonexistent. He refused to disclose the standards utilized in making determinations, previous decisions or even his decision-making process. He denied the applicants an opportunity to be heard, a record, a hearing, or the basis for his decision prior to adjudication."
In court documents, Palombo emphasized that the law says the attorney general "may" issue a carry permit -- rather than "shall" issue a permit. Also, he noted permits are only issued "upon a showing of need."
Palombo said Mosby and Golotto did not show that need. A lot of people carry cash and merchandise, he said. And when the attorney general's office contacted the Smithfield police regarding crime in that area, it was told there were "no problems to be concerned with."
Palombo said former Attorney General Sheldon Whitehouse created a policy for carry permits shortly after taking office in January 1999. "No one in the state has a right to obtain a pistol permit," the policy states. "A pistol permit is a privilege left to the sound discretion of the attorney general."
Mosby and Golotto went to Superior Court in December 1999, claiming that the attorney general violated their civil rights and the Administrative Procedure Act. Superior Court Judge Michael A. Silverstein dismissed their complaint in January 2001, citing a 1973 Supreme Court case, State v. Storms, in which a man named Storms was convicted of unlawfully carrying a pistol without a license.
In the Storms case, the high court said "the prevailing view" was that "a constitutional guarantee to keep and bear arms is not infringed upon by legislation which, in broad terms, forbids the unlicensed carrying of a pistol or revolver upon one's person excepting only in his home and place of business or upon his land."
Silverstein concluded that based on the Storms case and the state Constitution, he was "unable to declare that a person in Rhode Island has a fundamental right to carry a weapon outside the limits of his or her own land or business with or without a license which, in turn, would entitle them to due-process protection when applying for a license."
In its "friend of the court" brief, the Citizens Rights Action League argues that the "prevailing view" has changed since the Supreme Court last touched upon this issue in 1973.
"In the 30 years since Storms was decided," Archer wrote, "at least 32 of the 50 states have come to issue permits or licenses to their citizens to carry concealed, loaded handguns for personal protection as a matter of right without requiring that they show any specific need, subject to generally non-discretionary criteria."
Another "friend of the court" brief was filed on behalf of the Brady Center to Prevent Gun Violence, the Rhode Island Police Chiefs Association and the Million Mom March Rhode Island chapter. It argued that "when considered in historical context, the Rhode Island Constitution provides a right to keep and bear arms only to 'the people' collectively and only in connection with military service. This right certainly does not include the carrying of loaded concealed handguns in public."
The NRA disagreed, stating, "The right to bear arms is a fundamental, personal right, and no person may be deprived of this right without due process of law. The right belongs to the people, and is not a code word for a 'collective' power of the state over the militia."
--------------------------------------------------------------------------------
Online at: http://www.projo.com/news/content/projo_20031209_guns9.a2db2.html