Two Cases from Puerto Rico

August 5th, 2013

Puerto Rico is a tough place to be a gun owner. The NRA and 2nd Amendment Foundation don't have much reach there, and the Commonwealth is often a laboratory in which the government tests whether or not certain restrictions would fly on the mainland.

Antonio A. Hernández Almodóvar has argued against some of Puerto Rico's more restrictive firearms laws, but until 2011, the courts have been less than sympathetic. That changed with the Supreme Court's rulings in Heller and McDonald.

I'd heard about his winning streak, but no translations of the decisions had been made available, and it's best not to trust Google or Babelfish for these things. This morning, he forwarded me his translations of two cases.

The first is Gunsmiths Association of Puerto Rico, Inc. v. Puerto Rico, reversing a lower court decision that failed to take incorporation into account. It also calls for intermediate to strict scrutiny in examining gun-control laws.

Under the "emergency regulations" clause of Regulations 7472 (an amendment to amendment 7311 of the Puerto Rico Weapons Act), the Police Superintendent refused to issue gun permits to gunsmiths. The CFI (Court of First Intent) originally found that his use of such authority was not capricious for several reasons, including the idea that the 2nd Amendment "does not apply to the States or territories nor does it affect the power thereof to regulate the possession of arms.”

This ruling finds that the lower court erred, and it goes on to assert that restrictions on the right to keep and bear arms must pass heightened judicial scrutiny.

Having analyzed the constitutional law in effect, we conclude that the judicial review criterion to determine the validity of emergency regulations, which affects the fundamental right guaranteed by the Second Amendment, must be at least an intermediate standard between strict scrutiny and that of reasonableness. After Heller, we do not believe we can authorize the most liberal, general, or abstract standard of “reasonableness” that the CFI used to evaluate the action of an agency under the Second Amendment.

In what pertains to the rights under the Second Amendment, it does not suffice to abstractly allege that there is “a compelling interest in safety and [in] fighting crime” for the court to validate Police Department regulations that intend to prohibit or limit —in any way— the free exercise of a U.S. citizen, who is not disqualified on the grounds stated in Heller, of his/her right to keep and bear arms for self-defense. [pp. 50-51]

This echoes Judge Sykes' opinon in US v Skoien, in which the 7th Circuit found that restrictions on the RKBA must be held to intermediate scrutiny at the lightest.

In view that the government objective sought under Regulations 7472 is an additional “control and limitation” measure, without which a U.S. citizen cannot exercise his/her fundamental right to keep and bear firearms for self-defense according to Heller, it is tantamount to a prohibition. Therefore, Regulations 7472 is unconstitutional to begin with, both in its contents and adoption. [p. 52]

The second case is ex parte Roque César Nido-Lanausse, in which the court found that the right to keep and bear arms could no longer be treated as a privilege.

[T]he State shall no longer be able to state that to keep and bear firearms in Puerto Rico is a “privilege” (granted by the State). Both Heller (before the Federal Government) and City of Chicago establish that: the right to keep and bear arms is a fundamental right. In addition, every possible argument of cultural tradition or time in history, social risks, States’ responsibilities, statistical implications, or institutional fears related to keeping and bearing firearms are discussed in the opinion (in City of Chicago) and it did not alter the final opinion of the USSC [pp. 11-12]

They also stated that a scheme requiring an applicant to prove “fear for his/her safety” to qualify for a carry permit did not pass muster.

Therefore, we believe that the phrase “fear for his/her safety” set forth in the Weapons Act cannot be in conflict with the fundamental right of keeping and bearing arms that a citizen may have to legitimately guarantee his/her self defense, that of his family or property. It cannot constitute, either, an implicit waiver of one’s right in favor of the interest of the State to regulate the issue. It is no longer necessary for such right to be justified with any particular “fear”, stating this without prejudice of the reasonable regulations that the State may impose on the sale/trade of firearms. [pp. 12-13]

This comports with Judge Legg's opinion in the Woollard v. Sheridan that,

The showing, however, is always the Government‘s to make. A citizen may not be required to offer a "good and substantial reason"why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs. [p. 20]

While I'm not sure if these cases will be quoted or used in further proceedings, but that these decisions came from an otherwise hostile jurisdiction is encouraging.

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