The Winds of Change are a ’Comin’

Many members of Rhode Island’s shooting community are already painfully aware of the arduous process of applying for a concealed weapons permit in our state.  While it is certainly understandable that we would want to thoroughly ensure that the individual granted a CCW permit is qualified to carry a personal protection firearm, and not legally disqualified from owning a firearm in general, many feel that the current process is a bit on the side of “overkill”. Be that as it may, Rhode Island has two laws currently on the books that address the permitting process.

In layman’s terms there are two chapters, 11-47-11 – the Town Permit, and 11-47-18, the Attorney General Permit.  The ability to bear arms under these chapters is nearly identical with some very minor exceptions, and one tremendously important exception. I will not elaborate on the minor exceptions, but rather the important one.

The main difference between the two methods of bearing arms are two seemingly harmless words; “shall” and “may”. The piece that I’ve written below was used for testimonial purposes in the hearings in Exeter for a town council resolution that would seek to relieve the town of Exeter from executing her statutory requirements under Chapter 11-47-11. Reviewing this testimony will offer the reader a thorough understanding of the importance in the difference between the words “shall” and “may”.

When finished reading the “Exeter argument”, read on to learn of a new initiative being taken by the Attorney General to completely put your constitutional right to keep and bear arms in the shredder.

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The Town of Exeter is seeking to have their responsibilities under Chapter 11-47-11 removed.

Why is this proposal unconstitutional?

What would happen if this became law?

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#1 – We have the right to own, and carry firearms.

As residents of the State of Rhode Island and Providence Plantations, and citizens of the United States of America we enjoy the Constitutionally-protected right to “keep and bear arms.” This is a natural right which is protected in the Bill of Rights by the 2nd Amendment, and this protection is more plainly stated in the Rhode Island Constitution under Article 1, Section 22 as follows;

ARTICLE I

DECLARATION OF CERTAIN CONSTITUTIONAL RIGHTS AND PRINCIPLES

Section 22. Right to bear arms. — The right of the people to keep and bear arms shall not be infringed.

(Emphasis added)

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#2 – Where does the right to carry a firearm come from?

This right originates from our Creator who has “endowed us with certain self-evident inalienable rights” and one of the protections of those rights, is found in the same documents referenced above; the 2nd Amendment in our Federal Bill of Rights, and Article I – Section 22 of the RI State Constitution.

There are several key legal terms in Section 22 we need to understand to comprehend the full implications of the proposal in the town of Exeter.

keep and bear arms” has been reviewed and ruled on by several high courts in the United States, and in fact; courts in all 50 states including Puerto Rico and the District of Columbia have ruled in the same way; the right to “keep and bear arms” is an individual right, not just a collective right, and in the context of the 2nd Amendment and all state constitutions which use the term “keep and bear”, it means “to possess, and to carry on one’s person”

Some recent court decisions that have been handed down over the past 10 years include;

1)  Washington DC vs. Heller   United State Supreme Court

A)  The personal right to firearms existed before the 2nd amendment.

B)  The 2nd Amendment protects weapons in common use by Law abiding citizens for lawful purposes.

C)  Entire Classes of firearms cannot be banned.  Semi Automatics or “Assault Weapons” are an Entire class.

2)  Chicago vs. Macdonald   United State Supreme Court

A)  States and municipalities must abide by the 2nd amendment.

 

3)   Chicago vs. Shepard - 7th Federal District Court

A) The majority opinion of the court articulated that “It is clear that the Supreme Court was protecting the individual right to firearms for Self Defense”

B)  The Constitutional right to armed self defense is broader than just keeping firearms in the home, a person has greater need to protect oneself on the street than in

the home

C)  A person has a right to carry a concealed firearm with a proper permit.

D) The right to bear arms implies a right to carry a loaded gun outside the home.

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#3 – Where in Rhode Island Law is the process for obtaining a Concealed Weapons Permit enumerated?

As Rhode Islanders, we have two means through which we can obtain a permit to carry a concealed weapon, hereafter referred to as a “Permit”.

The first means is on the town level;

§ 11-47-11  License or permit to carry concealed pistol or revolver. – (a) The licensing authorities of any city or town shall, … issue a license or permit to the person to carry concealed upon his or her person a pistol or revolver everywhere within this state for four (4) years from date of issue, if it appears that the applicant has good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver, and that he or she is a suitable person to be so licensed.

The second means is on the state level through the Attorney General;

§ 11-47-18  License or permit issued by attorney general on showing of need – (a) The attorney general may issue a license or permit to any person twenty-one (21) years of age or over to carry a pistol or revolver … upon his or her person…

Two more key legal terms in Section 22 that we need to understand are “shall” and “may”.

Shall

When used in statutes of law, the term “shall” is a command of duty and is defined as “has a duty to“.

Taken from Bryan A. Garner, A Dictionary of Modern Legal Usage 940–941 (2d ed., Oxford U. Press 1995)

May

When used in statutes of law, the term “may” is a discretionary term and is ambiguous. “May” simply extends an ability to do something, but not an obligation.

“May” means ‘has discretion to,’ ‘is permitted to’ or ‘is authorized to.’ Kenneth A. Adams, Legal Usage in Drafting Corporate Agreements 33 (Quorum Books 2001).

In review of RIGL 11-47-11, and RIGL 11-47-18 it is clear that the distinction between the two methods of obtaining a concealed weapons permit is that in 11-47-11, the “Town-Issued Permit” is a “shall issue” method of obtaining a permit and in 11-47-18, the “State issued permit” is a “may issue” method of obtaining a permit.

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#4 – How do these legal distinctions apply to the proposal in Exeter?

Very simply put, the Town-issued permit obtained through 11-47-11 is not discretionary – it is mandatory that a town issues the permit to any qualified applicant that seeks a permit because the law clearly states that the licensing authority of that town “shall issue”. To put it into legal context, the term can be alternatively phrased as “the licensing authority of any city or town has a duty to issue”.

While many towns in the state administer this process through the police department, a town without a police department is not relieved of this obligation because 11-47-11 very clearly states that the permit is given by “the licensing authority” of a city or town. That responsibility can be delegated by the Mayor, Town Council or Town Manager to any town official with the authority to issue licenses. Typically a Town Clerk, for example, possesses such authority. It is NOT necessary that the permit be issued by the police department.

Upon examination of 11-47-18, the Attorney General “may issue” a permit.  Again, articulating this with the legal definition from above; “The Attorney General has the discretion to issue a license or permit…

The legal distinction between the two sections of law is that the town MUST give a qualified applicant a permit, and the Attorney General has the ability, but is NOT OBLIGATED TO give a qualified applicant a permit.

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#5 – Why is this proposal unconstitutional?

As elected officials on both the state and town level, we all swore an oath to support the Constitutions of both the state of RI and the United States of America.  With the 2nd Amendment stating that the “right to keep and bear arms shall not be infringed” and Article I, Section 22 of RI’s Constitution enumerating that “The right of the people to keep and bear arms shall not be infringed.

Another legal term is the word “infringe” which is a term of common use as well as legal use that means;

in·fringe

verb.

1. To transgress or exceed the limits of; to violate

2. To defeat; invalidate.

* Merriam Webster

To put Section 22 into “plain speak” by inserting the legal definitions provided above, it would read;

The right of the people to own, possess, and to carry a loaded gun outside the home, must not, and cannot be violated or invalidated.

By eliminating the ability of Exeter residents to utilize the Town permitting process and compelling them to use the Attorney General process, then Article 1, Section 22 of Rhode Island’s Constitution will in-fact, be violated by the town of Exeter.

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#6 – What would happen if this proposal became law?

If a citizen of the town of Exeter seeks to apply for a concealed weapons permit and there is no ability for them to obtain such a permit through RIGL 11-47-11 as is their right, then they have been stripped of their ability to protect themselves by eliminating their ability to execute the right of “carrying a loaded gun outside the home” which “must not, and cannot be violated or invalidated.

Because the Attorney General process under 11-47-18 is a “may issue” process, and is completely discretionary, this method of obtaining a permit is not guaranteed, and CAN be infringed at the discretion of the Attorney General.

Therefore, the only mandated method of obtaining a permit to exercise one’s constitutionally guaranteed right to “keep and bear arms” is through 11-47-11.

If a resident of the town of Exeter seeks to obtain a permit from the town and is not allowed to, they then have legal standing to file suit against the town of Exeter for the violation of their constitutionally protected right to keep and bear arms.

If that resident sought a permit and was not be able to obtain one, and an unfortunate incident occurred and they were somehow injured, or killed because they were unable to defend themselves with a firearm, then the town could also be subject to a suit seeking compensation for damages resulting in the violation of their constitutional rights.

This could cost the town of Exeter anywhere from $50,000 to $50 million depending on the circumstances of the individual suit.

A much more reasonable approach would be for the town to simply follow the laws of our state, and issue permits in accordance with RIGL 11-47-11.

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The very same “Exeter Initiative” was passed by Representative Larry Valencia in committee, and in the very last day of the 2012 legislative session he attempted to have it pass the Full House in the barrage of last minute bills that are annually jammed through the legislature in a blur.  However, I immediately noticed this bill, “item number 46” on the calendar for the House Floor.  Before session started I worked along with a couple of other reps to “whip” the room and get enough opposition to this bill that we were able to present it to the Majority Leader as an unconstitutional bill that the NRA would vehemently oppose. Through his experience with the NRA and also the type of legislation we were dealing with, the Majority Leader – to his credit – realized that this bill was a bad bill and when session convened the first words out of his mouth when we addressed the calendar were “Mr. Speaker, Item number 46 – recommit.”

This 6 word sentence killed that bill last year, but this year they are not going to go silently.

Now there is a twist to the Exeter issue.

The Rhode Island Attorney General seeks to seize control of all Concealed Weapons permits issued in the state.

I had a conversation with someone within the Attorney General’s Office who all but confirmed to me that the AG will be introducing a bill – as soon as this week – that will seek to eradicate the effect of section 11-47-11 from the books. While perhaps they will not be seeking to strike the chapter, they are seeking to implement legislation that would have the same effect as striking the entire chapter.

What does this mean? It means that we will no longer have the right to “keep and bear arms” – it will now be relegated to that of “privilege” status.  We will be required to appeal to the Attorney General for the “privilege” of carrying a person protection firearm – despite the fact that our Constitution specifically states that this is a “right that shall not be infringed” and not a privilege.

While there has been no bill yet submitted, I do not expect it to reform the current AG mechanism for CCW permits, I suspect it will simply eradicate the 11-47-11 Section of Chapter 47.

If the Attorney General were inclined to obey the Constitution he swore an oath to a mere 76 days ago, and add a “shall issue” mechanism to the permitting process, then I would support his initiative as long as it did not infringe on our right to keep and bear arms in any other way. However, from the information I have, I have very little hope that this will be the case.

This initiative, if it is introduced, needs to be fought with the vigor and power of presence that the Registration Bill (5573) was treated.

The Attorney General’s office can be reached at;

(401) 274-4400

And I have found two emails – one was his campaign email which he may not still use, but it’s worth the CC in any emails you send to him.

contactus@riag.ri.gov

attorneygeneral@peterkilmartin.com

Governor Chafee’s Gun Control Initiative

Through his spokesperson the governor has announced that he will be releasing his legislative package as early as next week, or maybe the week following.

I have not seen the legislation that is in the package, but I did get a glance at some of the issues they are considering. I will not mention them because hopefully he was overcome with either common-sense or just plain reason, and did not include them in his package.

Stay tuned, because once those bills come out I will be sending out an alert to everyone.

Respectfully, and proudly at your service,

Mike Chippendale

Senior Deputy Minority Leader

District 40 – Coventry, Foster, Glocester

House Oversight Committee

Committee on Environment and Natural Resources

Permanent Joint Committee on Healthcare Oversight

Rhode Island Lottery Commission