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Federal Judge Overturns Ban on Openly Carrying Guns in Public

Wednesday, October 5, 2016 6:17
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In a quintuple victory for Second Amendment rights, a federal judge last week overturned a ban on carrying handguns in public, a ban on so-called assault weapons, caliber restrictions for long guns, a $1,000 tax on handguns, and a requirement that all guns be registered with the government. “The individual right to armed self-defense in case of confrontation…cannot be regulated into oblivion,” declared Ramona Manglona, chief judge of the U.S. District Court for the Northern Mariana Islands.

In her September 28 ruling, Manglona notes that the U.S. Court of Appeals for the 9th Circuit (which includes the Northern Mariana Islands) has said “there is no constitutional right to carry a concealed weapon in public.” But the 9th Circuit has not addressed the broader question of whether the right to armed self-defense recognized by the Supreme Court in the landmark 2008 case District of Columbia v. Heller extends beyond the home. Adopting the historical analysis and logic that the U.S. Court of Appeals for the 7th Circuit applied when it overturned an Illinois ban on carrying guns in 2012, Manglona concludes that “the Second Amendment, based on its plain language, the history described in Heller I, and common sense, must protect a right to armed self-defense in public.” While “the right of armed self-defense, including in public, is subject to traditional limitations,” she says, “it is not subject to elimination.” Since the law enforced by the Commonwelath of the Northern Mariana Islands (CNMI) “completely destroys that right,” Manglona writes, “it is unconstitutional regardless of the level of scrutiny applied, and the Court must strike it down.”

Manglona emphasizes that she is upholding “the individual’s right to carry and transport an operable handgun openly for self-defense outside the home” (emphasis added). That’s because the “traditional limitations” she mentions include bans on concealed weapons. As the Supreme Court noted in Heller, “the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.” Although the open carrying of guns may clash with contemporary sensibilities, it is the mode of publicly bearing arms that is most clearly protected by the Second Amendment.

Since Heller no appeals court has upheld a complete ban on carrying guns in public, but several have upheld laws that give local authorities wide discretion to decide who may do so. In 2012 the U.S. Court of Appeals for the 2nd Circuit upheld New York’s requirement that people seeking permission to carry handguns in public show “proper cause.” In 2013 the U.S. Court of Appeals for the 3rd Circuit upheld a similar New Jersey law, requiring a “justifiable need” for a carry permit, and the U.S. Court of Appeals for the 4th Circuit upheld a Maryland law demanding a “good and substantial reason.” Last month the U.S. Court of Appeals for the District of Columbia Circuit heard a Second Amendment challenge to a D.C. law that requires carry permit applicants to show they have “good reason to fear injury,” meaning they have “a special need for self-protection distinguishable from the general community.”

Judge Manglona’s rejection of the CNMI’s “assault weapon” ban is almost as striking as her vindication of the right to bear arms, because she scrutinizes the law’s logic instead of deferring to the supposed expertise and wisdom of legislators. The CNMI law prohibits half a dozen rifle features: 1) a pistol grip under the action of the weapon, 2) a forward pistol grip, 3) a thumbhole stock, 4) a folding or telescoping stock, 5) a flare launcher, and 6) a flash suppressor. Manglona concludes that a ban on these features cannot pass “intermediate scrutiny,” which demands that a law further an important government interest through means that reasonably fit that interest.

“The Commonwealth has not shown through any evidence that its means fit its end,” Manglona writes. “In fact, the evidence suggests that the banned attachments actually tend to make rifles easier to control and more accurate—making them safer to use. Because the Commonwealth’s ban does not match its legitimate and important interest, the ban fails intermediate scrutiny and will be struck down.”

Manglona is likewise unpersuaded that the CNMI ban on long-gun calibers larger than .223, which appears to be the only caliber limit that strict in the country, is reasonably related to public safety. The official rationale is that larger bullets travel farther, creating a greater hazard for innocent bystanders. But other factors affect a rifle’s maximum range, Manglona notes, and “given the prevalence of dense jungle, hills, and buildings within the CNMI, most bullets fired from almost any gun would probably be stopped before reaching its effective range.”

The exorbitant CNMI tax on handguns, which raises the cost of the cheapest pistol by almost 700 percent, is also unusual. “The power to tax is not just the power to fund the government,” Manglona observes. “It is the power to destroy.” Because a $1,000 tax “comes close to destroying the Second Amendment right to acquire ‘the quintessential self-defense weapon,’” she writes, “the Court will strike it down.”

Manglona also deemed the burden imposed by the CNMI’s gun registration system, which requires a separate application for each weapon, unjustified by public safety concerns. By contrast, she upheld the commonwealth’s licensing requirement for gun buyers, mainly because it goes beyond federal law by “requiring background checks for all aspiring gun owners,” and not just those who purchase their firearms from federally licensed dealers. She also upheld the commonwealth’s ban on magazines that hold more than 10 rounds, saying it probably would not have much impact on self-defense and might reduce deaths in mass shootings. Manglona in any case had little choice but to uphold that restriction, since the 9th Circuit last year approved an “identical ban” imposed by Sunnyvale, California.

Manglona notes the perseverance of the plaintiff in this case, a former U.S. Army Ranger named Paul Murphy who represented himself through years of litigation. “Murphy’s battle for justice began more than nine years ago when he first applied for and was denied possession and use of his firearms,” she writes. “Plaintiff has valiantly pursued all lawful efforts to protect and defend his rights in a community where the voice of the majority can often overpower the equally important rights of the minority.”

[via Charles Nichols]

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