Does Heller Apply?
That depends on who you ask and when you ask it.
Just recently I received an email from a defense attorney filing an appeal for a client based on Second Amendment issues. The case involved the arrest of an 18 year old (Powell) in possession of a handgun in Massachusetts. The facts of the arrest are very interesting and perhaps even questionable at best, but for the purposes of this article the meat of the story comes from the briefs filed by the Suffolk County District Attorney’s office.
During the appeals process that is leading up to the Massachusetts Supreme Judicial Court (Mass SJC) case, Powell has claimed that the Massachusetts laws regarding the possession of a handgun by 18 – 20 year olds are now unconstitutional in light of the recent McDonald v. Chicago (June 2010) Supreme Court decision. While Heller (June 2008) is the landmark case that began the modern discussion of the Second Amendment, it was the McDonald decision that officially “incorporated” the Second Amendment as applying to the States. Or did it? That depends on who you ask and when you ask it.
Before proceeding with this discussion it is important to remind the reader that since the 1976 Massachusetts Supreme Court Decision in Commonwealth v. Davis, Massachusetts courts have maintained that the Second Amendment does not apply to the states and the individual right to keep and bear arms does not exist in the Commonwealth. The Davis decision went so far as to state: “The chances appear remote that this amendment will ultimately be read to control the States, for unlike some other provisions of the bill of rights, this is not directed to guaranteeing the rights of individuals, but rather, as we have said, to assuring some freedom of State forces from national interference.”
The Massachusetts courts have upheld this position as recently as March 2010 with the Runyan decision. As readers might recall, Runyan was a case before the Mass SJC regarding the state’s gun storage laws. In the case, the lower court had dismissed the charges based on Heller. When the case was appealed to the Mass SJC by the local District Attorney, they rejected the Heller argument and ruled as follows:
“The judge's conclusion that the Supreme Court's decision in Heller required a dismissal of the count charging a violation of G.L. c. 140, § 131L (a ), rests on two premises, both of which are in error. First, the decision assumes that the protection of the Second Amendment applies to the States as a matter of substantive due process under the Fourteenth Amendment to the United States Constitution. To reach such a conclusion would require a determination that the right protected under the Second Amendment is among those fundamental rights "implicit in the concept of ordered liberty." … Based on current Federal law, however, we cannot say that the Second Amendment applies to the States, either through the Fourteenth Amendment's guarantee of substantive due process or otherwise.”
“FN4. The Heller Court stated that the question whether United States v. Cruikshank, 92 U.S. 542 (1875) (Cruikshank ), remains a continuing bar against application of the Second Amendment to the States was "not presented" to the Court. District of Columbia v. Heller, 128 S.Ct. 2783, 2813 n. 23 (2008) (Heller ). Therefore, Cruikshank 's holding that the Second Amendment does not apply to the States has not been affected by the Court's decision in Heller.”
So nearly a year and a half after the Heller decision the Mass SJC, in March 2010, still maintained that the Second Amendment did not apply to the states and that no individual right to keep and bear arms existed in Massachusetts. This date is very important since the original trial and conviction of Powell took place in January 2009.
As the appeal based on constitutional matters moved along, the prosecution, in the form of the Suffolk County District Attorney’s office, filed a brief with the opinion that the defendant should not be able to appeal on the new constitutional grounds since it was not brought up in the trial. In this same brief the DA also stated clearly that it was their position that the Second Amendment was not incorporated and did not apply to the states:
December 2009 Commonwealth v. Powell Brief for the Commonwealth on Appeal by Kathleen Celion, Assistant District Attorney for Suffolk County District Attorney Daniel Conley
“The Second Amendment is Not Incorporated to the States by the Fourteenth Amendment and the Commonwealth of Massachusetts therefore has the right to regulate firearms as it sees fit.”
“The Second Amendment’s application to the States was not before the Supreme Court in Heller.
“The Court in Heller referred to the Second Amendment right to keep and bear arms as ‘pre-existing’ and ‘one of the fundamental rights of Englishmen’. This is not sufficient, however, to conclude that the Second Amendment is incorporated through the Fourteenth Amendment.”
“Accordingly, the Second Amendment cannot be construed as applying against state regulation of firearms. This Court should therefore find that the Massachusetts statutes in question are constitutional.”
Virtually the same opinion through a brief was filed by the Suffolk County District Attorney’s office four months earlier in the Runyan case.
September 2009 Commonwealth v. Runyan Amicus Brief David Deakin and Joseph Ditkoff Assistant District Attorneys for Suffolk County District Attorney Daniel Conley
“…the Framers wrote the Second Amendment so that the state governments would have armed militias for use against an encroachment on the sovereignty by the federal standing army. As thus understood, the individual right against being disarmed by the federal government recognized by Heller has no logical extension to a restriction on the right of state governments to decide how best to arm their citizenry. At least two of the Supreme Court Justices in the majority in Heller have expressed skepticism of incorporation, and there is no reason to think that the United States Supreme Court would find that the Second Amendment applies to bar the States from regulating firearms.”
“If the Supreme Court were to consider the issue today, it would likely find that the Second Amendment should not be incorporated through the Fourteenth Amendment and applied to the states.”
In late 2009, well over a year after Heller, the Suffolk County District Attorney’s office filed at least two separate briefs to the Mass SJC stating that the Second Amendment did not apply to the states and that Heller was of no consequence in regard to Massachusetts gun laws. Why is this important? Simple, in less than a year after filing the December 2009 Powell brief the Suffolk County District Attorney’s office has apparently changed their mind.
In a later brief in the same case (Powell) authored by the same Assistant District Attorney on behalf of the same District Attorney now claims that the defendant should have no right to appeal because they should have done so earlier. The difference in the newer brief is that they now state the defendant should have understood that Heller overruled Davis.
August 2010 Commonwealth’s Memorandum of Law by Kathleen Celion, Assistant District Attorney for Suffolk County District Attorney Daniel Conley
“Prior to the defendant’s trial, however, the Supreme Court in District of Columbia v. Heller … held that the right to bear arms was an individual, not collective right.. Thus, Heller effectively overruled the portion of the Supreme Judicial Court’s ruling in Davis that the right to bear arms was an individual right. Therefore, Heller would have given notice to the defendant that the Supreme Judicial Court’s interpretation of the Second Amendment was not the final word on the subject and was erroneous.”
Confused yet? You should be because I’ll bet Powell is. After over a year of claiming that the defendant has no right to appeal because Heller does not apply to the states, the Commonwealth is now trying to tell him he should have known at the original trial that it did. As the title of the article asks, does Heller apply? The answer is apparently very clear. That depends on who you ask and when you ask it.
Unfortunately, Massachusetts gun owners have little to be surprised about. There is a long tradition in our state of the government interpreting gun laws to their convenience rather than our civil rights. It will be very interesting to see how this plays out. GOAL will be watching the Powell case with great interest and may get involved at some point.
Massachusetts’ Highest Court Hastens to Rule Against the Second Amendment
Read the entire decision here.
On Wednesday, March 10, 2010 the
Massachusetts Supreme Judicial Court (MassSJC) handed down its ruling in
COMMONWEALTH vs. Richard RUNYAN (SJC-10480). The Runyan case
regarded a lower court’s decision to dismiss a charge of improper gun storage.
The lower court dismissed the charges based the ruling in the Heller
decision in the Supreme Court of the United States (SCOTUS).
Of important note in this
decision, that can only be called an aberration, is the absence of a dissenting
opinion. This means that every justice sitting on Massachusetts’ highest court
agrees with everything written in the decision.
In a completely surprising and
very disturbing opinion the court ruled against the Second Amendment as being
an individual right and also ruled incorrectly that Heller did not rule
that trigger lock requirements were unconstitutional.
In the opinion of the MassSJC,
authored by Justice Gants, the court stated the following:
“The judge's conclusion that
the Supreme Court's decision in Heller required a dismissal of the count
charging a violation of G.L. c. 140, § 131L (a ), rests on two premises, both
of which are in error. First, the decision assumes that the protection of the
Second Amendment applies to the States as a matter of substantive due process
under the Fourteenth Amendment to the United States Constitution. Based on
current Federal law, however, we cannot say that the Second Amendment applies
to the States, either through the Fourteenth Amendment's guarantee of
substantive due process or otherwise.”
Under the holdings of the Heller decision the court clearly stated in statement number 1: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” It is technically true that Heller did not “incorporate” the Second Amendment as being applied to the states.
What is also true and very well known is that
SCOTUS just heard oral arguments on McDonald v. Chicago. This case has
been well publicized as being the first case in United States history to
directly address the incorporation status of the Second Amendment. Knowing this
case was in the works, why would the MassSJC issue an opinion citing a
century’s worth of convoluted anti-civil rights gibberish?
To make matters worse, and even
more offensive, the MassSJC in its Runyan opinion continually cited Cruikshank
as being the determining factor in ruling against the Second Amendment. “Under
Cruikshank, the Second Amendment imposes no limitations on the ability of the
Massachusetts Legislature to regulate the possession of firearms and
ammunition.”
Cruikshank was a post Civil War 1875 decision handed down by the
Supreme Court of the United States. This case is renowned as one of the most
racist anti-civil rights cases ever handed. The case was in regards to a
massacre at the Colfax Court House where approximately one hundred people
guarding the premises, mostly freed black men, where disarmed and murdered by a
white mob.
Further citing of Cruikshank in
the Runyan decision was found in Foot Note 4 at the end of the opinion.
In it the court attempted to say that the Heller decision upheld the findings
in Cruikshank. “FN4. The Heller Court stated that the question whether
United States v. Cruikshank, 92 U.S. 542 (1875) (Cruikshank ), remains a
continuing bar against application of the Second Amendment to the States was
"not presented" to the Court. District of Columbia v. Heller, 128
S.Ct. 2783, 2813 n. 23 (2008) (Heller ). Therefore, Cruikshank 's holding that
the Second Amendment does not apply to the States has not been affected by the
Court's decision in Heller.”
In reading Heller, FN4 of Runyan
was not at all accurate and taken completely out of context. What was actually
written in Heller was a footnote numbered 23 on page 48: “With
respect to Cruikshank’s continuing validity on incorporation, a question not
presented by this case, we note that Cruikshank also said that the First
Amendment did not apply against the States and did not engage in the sort of
Fourteenth Amendment inquiry required by our later cases.”
What the Heller court was
saying is that if we believe that the Cruikshank opinion still rules
against the Second Amendment than we have to believe it still rules against the
First Amendment. It has always been a dark secret for those who still use the
case against us that it ruled against the First Amendment Right of Assembly.
In what can only be called
selective citing of Heller by the MassSJC, the court stated: “In
Heller, the Supreme Court acknowledged that in United States v. Cruikshank, 92
U.S. 542 (1875) (Cruikshank ), it held that "the Second Amendment does not
by its own force apply to anyone other than the Federal Government."
Actually the following is the
complete statement from Heller regarding that point:
United States v. Cruikshank, 92
U. S. 542, in the course of vacating the convictions of members of a white mob
for depriving blacks of their right to keep and bear arms, held that the Second
Amendment does not by its own force apply to anyone other than the Federal
Government. The opinion explained that the right “is not a right granted by the
Constitution [or] in any manner dependent upon that instrument for its
existence. The second amendment . . . means no more than that it shall not be
infringed by Congress.” 92 U. S., at 553. States, we said, were free to
restrict or protect the right under their police powers. The limited
discussion of the Second Amendment in Cruikshank supports, if anything, the
individual-rights interpretation.
The Massachusetts court
conveniently left out the part about individual rights. After reading the Runyan
decision, one has to wonder whether anyone on the MassSJC actually read Heller
or if they simply relied on someone else’s misrepresentation of it.
The second part of the MassSJC
decision was in regards to the mandatory storage of firearms and trigger locks
and whether such laws were constitutional. The MassSJC ruling stated: “We
conclude that the legal obligation safely to secure firearms in G.L. c. 140, §
131L (a), is not unconstitutional, that the motion to dismiss the count
charging its violation was allowed in error, and that the defendant may face
prosecution on this count. [FN9]”
This part of the decision makes one wonder if the court even read the Heller decision. In the holdings in Heller, number 3 clearly stated: “3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment.” It can’t be anymore clear. The Supreme Court of the United States declared that trigger lock requirements are unconstitutional.
One could not talk about the Runyan decision without mentioning one of the most bizarre parts of any court ruling ever seen. At the end of the ruling in FN8 Justice Gants actually attempts to justify his opinion on trigger locks by equating the time it takes to disengage one with how long it would take to load a musket in 1791.
“FN8. We also note
that, even if a firearm were secured in the manner required by G.L. c. 140, §
131L (a ), a gun owner threatened in his or her home today would be able to
fire the weapon in self-defense at least as quickly as would a gun owner in
1791, when the Second Amendment was adopted. At that time, laws were in effect
requiring that gunpowder be stored separately from firearms, which meant that a
law-abiding homeowner acting in self-defense would need time to load and fire a
musket or flintlock pistol. See Heller, supra at 2849-2850 (Breyer, J.,
dissenting). A skilled soldier of that time using specially prepared cartridges
required a minimum of fifteen to twenty seconds to load and fire a musket; a
less skilled soldier could fire no more quickly than once per minute. Hicks,
United States Military Shoulder Arms, 1795-1935, 1 Am. Military Hist. Found.
23, 30-31 (1937). A gun owner today could remove a firearm from a locked
container or release a trigger lock more quickly than that.”
Is it the opinion of the Justice that the courts make determinations on our modern day civil rights based on the technologies and abilities of the 1700’s? If that were expanded to every civil right many things we take for granted today would be banned or heavily restricted.
Perhaps though, the most telling part of this abhorrent decision can be found at the end in FN7.
“FN7. We note that the Court in
Heller, supra at 2820, declared that its analysis should not be taken to
"suggest the invalidity of laws regulating the storage of firearms to
prevent accidents." We do not, however, decide whether the defendant's
alleged violation of G.L. c. 140, § 131L (a ), could survive a motion to
dismiss if the Second Amendment were made applicable to the States through
incorporation under the Fourteenth Amendment's due process clause.”
This statement basically tells us that the court was well aware that the McDonald case at the federal level may well incorporate the Second Amendment and that if they waited for that case to be settled, the MassSJC probably could not get away with the ruling they just made. Is it any wonder that lawful gun owners feel they are waiting behind enemy lines to be set free?
On Tuesday, January 19, 2010 the citizens of Massachusetts have a once in a lifetime opportunity to send a message to Washington D.C. that will resonate around the world!
The election on Tuesday is not about Democrat vs. Republican. It isn’t even just about our Second Amendment civil rights, while that is certainly a priority for GOAL members. This election is about sending a clear message to the entrenched political machine in Washington D.C. that an elected seat of any kind belongs to the people and not to a family dynasty, political party or any other entity.
As Thomas Jefferson once said, “The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” It should be obvious to all that we have not come to that point yet, but it should also be clear to everyone that our nation’s capital has become a tyrant in of itself. While this is not a physical battle, we certainly have an opportunity on Tuesday to spill some political blood and recapture some of our authority over our government. In this battle, your weapon is your vote!
As our forefathers did many years ago when they rallied the local patriots at the Concord Bridge, it is time for us to rally our fellow patriots. We urge you to rally your family, your friends, your neighbors and armed with their votes go to the polls on Tuesday. Together as a voting modern militia we can retake our freedom and our future! A win for Scott Brown on Tuesday is a win for freedom and it will most certainly become known as the political shot heard round the world.
Scott Brown:
· Supported GOAL’s Target Shooter’s bill in 2006 allowing the sale of new Olympic Style Target pistols in Massachusetts,
· Supported the Hunter Education Bill in 2006,
· Supported the GOAL’s 2004 Reform Bill
o Created a review board for people who had lost their rights for minor offenses,
o Created a 90 day grace period for lawful citizens who trying to renew their licenses but were entangled in an unresponsive bureaucracy,
o Standardized the size of firearm license
· When in the House he fought to undo a lot of the mistakes made in the anti-civil rights 1998 Gun Control Act
Martha Coakley:
· In November of 2009 as Massachusetts Attorney General she filed an Amicus Brief to the Massachusetts Supreme Judicial Court opposing the Second Amendment as an individual civil right. In the brief she cited a post civil war case called Cruikshank to back her position. This case was one of the most anti-civil rights and racist decisions ever handed down and not only ruled against the Second Amendment, but the First as well.
· Attached regulations to GOAL’s Target Shooters bill after its passage to make it virtually impossible for firearms to pass the standards. Nearly four years after the bill’s passage only three firearms have made the list.
· Continued the enforcement of the fraudulent handgun regulations that were created through an abuse of the consumer protection laws.