By Michael Kramer, RI Attorney
The right established under the Second Amendment to the United States Constitution to bear arms is often misunderstood. The goal of this paper is to clarify what the law does and does not protect, relying on federal and state court decisions interpreting the Constitution. Citations to the cases are provided, so that a reader may access the court decisions for himself or herself.
What right does the Second Amendment protect?
The U.S. Supreme Court ruled in District of Columbia vs Heller, 554 US 570 (2008) that an individual has the right to own and maintain a handgun at home for personal protection.
The Court did not establish any other right regarding gun ownership, other than “the right…to use arms in defense of hearth and home.”
Is this right unlimited?
No. Justice Antonin Scalia wrote in the majority opinion in Heller:
“Like most rights, the right secured by the Second Amendment is not unlimited. [The right] was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”
He explained further that the right may be regulated and limited and gave various non-exclusive examples.
Does the Second Amendment create a right to carry a weapon, openly or concealed, outside of one's home?
No. As the 1st Circuit Court of Appeals, the federal appellate court with jurisdiction in our state, wrote: “The core Second Amendment right is limited to self-defense in the home.” Gould vs Morgan, 907 F3d 659 (1st Cir. 2018).
Associate Justice Robert D. Krause of the Rhode Island Superior Court had occasion to write a lengthy and scholarly opinion in State of Rhode Island vs Ortiz, Case No. P2/19-0672AG (Dec. 2020) discussing this issue.
While this case does not have wide precedential value as it is a lower court decision, the opinion provides a detailed review of the appellate cases and then rejects a defendant’s claim to a constitutional right to carry a firearm outside of the home without a permit.
The opinion is worth reading, and discusses the evidence that “states with more restrictive licensing schemes for the public carriage of firearms experience lower rates of gun related homicides and other violent crimes.”
He deflates the “good guy with a gun” myth by noting that “using firearms for self-defense in crowded public areas risks fatalities and serious injury to innocent bystanders.” He concludes that “firearms create or exacerbate accidents and deadly encounters.”
Can states ban assault weapons?
Yes. The federal government and the states have long banned automatic weapons and in many cases, semi-automatic weapons such as the AR-15. No court has concluded that an individual has the right to own an automatic or semi-automatic weapon.
While the U.S. Supreme Court has not had the occasion to rule on assault weapons bans, multiple federal courts of appeals have done so and all of them reached the same conclusion that such prohibitions are constitutional.
For example, the Massachusetts ban on assault weapons and HCMs was upheld by the highest federal appeals court in our area in Worman vs Healey, 922 F3d 26 (1st Cir. 2019). In a lengthy opinion surveying Supreme Court jurisprudence and decisions from other circuit courts, a three judge panel found the Massachusetts law to be a reasonable limitation and not violative of the Second Amendment. The opinion was written by Rhode Islander Judge Bruce Selya. One of the three judges signing on to the opinion was David Souter, retired Associate Justice of the U.S. Supreme Court, sitting by designation.
Is a ban on large capacity magazines (LCM) constitutional?
Yes. Four out of five federal appeals courts ruling on LCM bans have found such to be constitutional, including the 1st Circuit in the Worman case.
The recent decision of the Vermont Supreme Court in State of Vermont v Misch, ___A3d___ (VT 2021) is particularly notable.
In this case, the Vermont Supreme Court unanimously upheld a Vermont law banning LCMs as constitutional under the Vermont Constitution. The Court noted with approval the state legislature’s reliance on studies that showed “extensive evidence that ‘the use of LCMs in mass shootings increases the number of victims shot and the fatality rate of struck victims.'”
The court cited evidence that “large capacity magazines are associated with many of the deadliest shootings in the United States” and that between 2009 and 2018, one study showed that shootings involving LCMs led to five times the number of people shot per mass shooting.
The importance of this case is in the recitation of the evidence that LCMs increase the risks of death and serious injury and accordingly are not protected by Vermont law.
Does the right to bear arms provision in the RI Constitution protect the right for individuals to carry weapons outside of the home or to own assault weapons and large capacity magazines?
No. The Rhode Island Supreme Court issued its definitive ruling on weapons restrictions in Mosby vs Devine, 851 A2d 1031 (RI 2004).
In this case, the court determined that the right to bear arms under the Rhode Island Constitution was related to the maintenance of militias and was not an individual right of possession or ownership.
The court held that “the right to possess a handgun…is not absolute and is subject to reasonable regulation.”
In short, an individual’s right to bear arms under our constitution is not even as broad as the federal right set forth in the Heller decision.