Opinion
P2/19-0672AG
12-15-2020
STATE OF RHODE ISLAND v. JASON ORTIZ
ATTORNEYS: For Plaintiff: Katelyn M. Revens, Esq. For Defendant: Daniel E. Ciora, Esq.
DECISION KRAUSE , J. In the off chance that he might have to shoot someone, even in a public library, Jason Ortiz says that he has a right under the Second Amendment of the United States Constitution to carry a loaded handgun in his pocket without a permit whenever and wherever he wants to in the State of Rhode Island.
That delusive intellection is antithetical to courts and commentators, including the United States Supreme Court, which has said in plain English that the Second Amendment is simply not unlimited and does not protect an illusory right to carry any weapon wherever and in any manner for whatever purpose and for any type of confrontation.
I. Exordium
The Charges Against the Defendant
On July 24, 2018, when Ortiz was nineteen, Pawtucket police officers chased him on foot through city streets and the public library after he had allegedly assaulted his girlfriend. During the pursuit, surveillance cameras recorded Ortiz allegedly discarding a handgun just before he was apprehended. The police found a loaded pistol where a video camera had captured that scene.
A criminal information was filed on February 26, 2019, charging Ortiz with a felony count of unlawfully carrying a pistol without a license or permit under G.L. 1956 § 11-47-8(a) and three misdemeanors (domestic assault upon his girlfriend, resisting arrest, and domestic disorderly conduct).
On August 2, 2018, after a criminal complaint had been filed, Ortiz posted surety bail in the District Court. He was released and permitted to live at his residence in Brockton, Massachusetts. A No Contact Order (NCO), the first of several, was also issued to protect his girlfriend. On March 29, 2019, Ortiz was arraigned on the instant charges in the Superior Court, released on the same surety bail, and was again allowed to reside at his Massachusetts residence. Between his initial August 2, 2018 release and October 29, 2020, when this Court heard oral arguments (via WebEx) on Ortiz's dismissal motion, Ortiz had been re-arrested on various charges, including violating NCOs, had his bail revoked, and had pled nolo contendere to some misdemeanor charges. At the time of the October 29, 2020 hearing, Ortiz was incarcerated, and he voluntarily waived his presence at that proceeding. (Tr. 1, Oct. 29, 2020.)
The Defendant's Claim
Principally relying upon the United States Supreme Court decisions of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. 742 (2010), Ortiz entreats this Court to dismiss the firearm charge. He insists that it no longer matters whether he was licensed to carry the weapon because, he says, the Second Amendment, as prescribed by those decisions, accords him an unfettered right to the public carriage of a handgun for self-defense, which cannot be trenched upon by any government policy requiring him to obtain a carry permit.
Ortiz has misread, much too expansively, the limited holdings of those two cases and, as further discussed herein, he can draw no such support from them.
The Public Carriage Permit Statutes
Ortiz targets the Rhode Island Firearm Act (§§ 11-47-1 et seq.), particularly the public carriage permit provisions in §§ 11-47-11, 11-47-18, and 11-47-8(a), the latter criminalizing the carrying of a pistol without a license or permit. Those three sections provide in relevant part:
" § 11-47-8. License or permit required for carrying pistol:
(a) No person shall, without a license or permit issued as provided in §§ 11-47-11 [] and 11-47-18, carry a pistol or revolver in any
vehicle or conveyance or on or about his or her person whether visible or concealed, except in his or her dwelling house or place of business or on land possessed by him...Every person violating the provision of this section shall [be guilty of a felony and subject to imprisonment]."
"§ 11-47-11. License or permit to carry concealed pistol or revolver.
(a) The licensing authorities of any city or town shall, upon application of any person twenty-one (21) years of age or over having a bona fide residence or place of business within the city or town, or of any person twenty-one (21) years of age...issue a license or permit to the person to carry concealed upon his or her person a pistol or revolver everywhere within this state...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."
"§ 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, whether concealed or not, upon his or her person upon a proper showing of need, subject to the provisions of . . . § 11-47-15."
Although the statute refers only to "carry," the term is essentially synonymous with "possess." State v. Benevides, 425 A.2d 77, 79 (R.I. 1981).
II. Standing
The state contends that before this Court considers Ortiz's claim, he must demonstrate that he is in a position to make it. After all, argues the state, even when invoking fundamental Fourth and Fifth Amendment protections, a defendant must first affirmatively demonstrate standing before he may substantively contend that the state violated those constitutional sanctuaries. State v. Bertram, 591 A.2d 14, 18, 22 (R.I. 1991); State v. Casas, 900 A.2d 1120, 1129 (R.I. 2006); State v. Ducharme, 601 A.2d 937, 940 (R.I. 1991).
In United States v. Salvucci, 448 U.S. 83, 92-93 (1980), the Supreme Court overturned precedent which had accorded automatic standing to a defendant charged with possessory crimes simply because he possessed the contraband. Ortiz, however, insists that because he is charged with a criminal offense, he enjoys automatic standing to challenge the constitutionality of the permit statutes relating to the criminal conduct alleged. We are not so sure.
Ortiz resists the concept that his very failure to apply for a permit ought to be a sufficient reason to deny him standing to criticize the constitutionality of the subject statutes. The First Circuit, however, has essentially held just that. In Morin v. Leahy, 862 F.3d 123, 125 (1st Cir. 2017), the Court held that Morin's failure to apply for a firearm identification card, which is a prerequisite to the issuance of a carry permit and also the purchase of a gun, precluded him from challenging the constitutionality of the Commonwealth's firearm licensing scheme. "Morin lacks standing to bring such a challenge, because he has not applied for a FID Card, and has thus not been denied one." Id. See Hightower v. City of Boston, 693 F.3d 61, 70 (1st Cir. 2012) (holding that the petitioner, who challenged the Massachusetts firearms licensing scheme after her Class A firearm license had been revoked, "lacks standing to raise a claim as to a [lesser] Class B license [because] she has never applied for such a license, been denied one, or had such a license revoked").
After the 2017 Morin decision, Morin eventually was issued an FID Card but was nevertheless denied a carry permit because of a prior misdemeanor firearms offense. His subsequent constitutional complaint that the Massachusetts licensing scheme impermissibly classified him as a "prohibited person" did not survive the Commonwealth's summary judgment motion. Morin v. Lyver, 442 F.Supp.3d 408 (D. Mass. 2020).
Ortiz criticizes the state for citing only civil decisions and no criminal cases to support its assertion that he lacks standing to attack the permit statutes. (Mem. at 3, Aug. 20, 2020.) This Court joins that reproval, but the state's inattention does not assist Ortiz, because similar holdings are also reflected in criminal case law. E.g., Powell v. Tompkins, 783 F.3d 332 (1st Cir. 2015); Commonwealth v. Loadholt, 954 N.E.2d 1128, 1129-30 (Mass. 2011); State v. Campbell, No. C-120871, 2013 WL 6730191, at *4 (Ohio Dec. 20, 2013); State v. Robinson, 48 N.E.3d 1030, 1036 (Ohio Ct. App. 2015); and State v. Philpotts, 132 N.E.3d 743, 752 (Ohio Ct. App. 2019); see Williams v. State, 10 A.3d 1167, 1169 (Md. 2011), cert. denied, 565 U.S. 815 (2011).
Moreover, Ortiz could never have obtained a carry permit, as he would have been unable to satisfy the statutory age and residence prerequisites, which he has not even challenged. Issuance of a carry permit is said to be "mandatory" under § 11-47-11 so long as an applicant demonstrates that he or she meets the eligibility criteria which include (1) a minimum age of twenty-one, (2) a Rhode Island residence, (3) a good reason to fear personal injury, property damage, or any other proper reason for carrying a concealed handgun; and (4) be a "suitable person" to be licensed. "Each of these components must be satisfied in order for a license or permit to be issued under § 11-47-11." Gadomski v. Tavares, 113 A.3d 387, 390 (R.I. 2015) (emphasis added); see Mosby v. Devine, 851 A.2d 1031, 1047-48 (R.I. 2004).
The Gadomski Court pointed out that notwithstanding the "mandatory" nature of § 11-47-11, certain individuals are simply recognized as unsuitable to possess a gun license; e.g., persons convicted of a crime of violence or who are fugitives from justice (§ 11-47-5); mental incompetents and drug addicts (§ 11-47-6); illegal aliens (§ 11-47-7); persons who have failed to meet minimum firing qualification score (§ 11-47-15). Id. at 390 n.1. See Mosby, 851 A.2d at 1045-47. Ortiz does not contest the lawfulness of any of those provisions, and Heller itself viewed other exclusions presumptively legitimate. "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms," or constraints on the possession of machineguns or short-barreled shotguns. . . "We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive." Heller, 554 U.S. at 626-27 and n.26; McDonald, 561 U.S. at 786.
At the time of the charged event, Ortiz was nineteen years old and was residing in Massachusetts. He would have thus failed both the age and residency requirements and been immediately disqualified from obtaining a permit under § 11-47-11, as well as under § 11-47-18, which also includes the same minimum age requirement. Ortiz's pleadings are bereft of a challenge to either criterion, and any such protest would have been foredoomed. United States v. McGinnis, 956 F.3d 747, 753, 757 (5th Cir. 2020) (citing National Rifle Association of America, Inc. v. Bureau of Alcohol, Tobacco, Firearms & Explosives [NRA], 700 F.3d 185, 205 (5th Cir. 2012) (upholding federal laws disarming those under the age of twenty-one)). See Schrader v. Holder, 704 F.3d 980, 990-91 (D.C. Cir. 2013) (noting that among the principal purposes of gun control legislation was to curb crime "by keeping firearms out of the hands of those not legally entitled to possess them because of age" (quoting Huddleston v. United States, 415 U.S. 814, 824 (1974)); Gould v. Morgan, 907 F.3d 659, 669 n.4, (1st Cir. 2018), cert. denied sub nom. Gould v. Lipson, ___ U.S. ___, 2020 WL 3146683 (June 15, 2020) ("[W]e traced the historical roots of laws prohibiting minors from possessing firearms from the founding era through the early twentieth century and concluded that the challenged law was of a type historically understood to be consistent with the Second Amendment.") (citing United States v. Rene E., 583 F.3d 8, 14-16 (1st Cir. 2009)); see Culp v. Raoul, 921 F.3d 646 (7th Cir. 2019), cert. denied, ___ U.S. ___, 2020 WL 3146689 (June 15, 2020) (upholding Illinois' denial of carry permits to nonresidents whose home states did not have substantially similar statutory licensing standards).
Furthermore, at any trial on Ortiz's criminal charge of carrying a pistol without a license, the state would be statutorily entitled to an evidentiary inference under § 11-47-27 that his mere possession of the weapon was unlawful. That statute provides:
"§ 11-47-27. Standard of proof under §§ 11-47-1 -- 11-47-34.
No negative allegation of any kind need be averred or proved in any complaint under §§ 11-47-1 -- 11-47-34, and the carrying or use of any firearm contrary to the provisions of those sections shall be
evidence that the possession, carrying or use of any firearm is unlawful, but the respondent in any case brought under those sections may show any fact that would render the possession, or use, or carrying of the firearm lawful."
Since that statutory adverse inference is available to the state at trial, where a court hews most closely to the rules of procedure and evidentiary standards than at any other juncture of a criminal proceeding, it is equally, if not even more, accessible to the state in the flexible setting of pretrial proceedings. Cf., State v. Benevides, 420 A.2d 65, 68 (R.I. 1980) (allowing the state to reopen its case at a probation violation hearing after having rested); State v. Bojang, 83 A.3d 526, 536 (R.I. 2014) (affording the trial judge, upon remand, the discretion to admit additional evidence in a suppression hearing, and declining "to change its practice of vesting trial justices with the discretion to conduct proceedings as they see fit).
While not conceded by Ortiz, query whether there is a meaningful dispute that he ever applied for a carry permit, much less possessed the weapon. (Absent the possessory element of the offense, Ortiz would never have even filed the instant motion.) The state has produced written offers of proof from the Bureau of Criminal Identification and from thirty-eight cities and towns that he never applied for a permit. Although Ortiz professes to contest their accuracy, he has chosen not to present any evidence contradicting them, an option nevertheless available to him under § 11-47-27 in order to negate that statute's adverse inference under a procedure which has been constitutionally approved. State v. Neary, 122 R.I. 506, 409 A.2d 551 (1979), followed in State v. Germane, 971 A.2d 555, 581 (R.I. 2009). A similar procedure has also been approved in Massachusetts, allowing an adverse presumption, not just an inference. Powell, 783 F.3d 332.
In Powell, a federal habeas proceeding, Powell protested his Massachusetts conviction for unlawfully possessing a firearm without a license. Asserting a due process violation, he contested the state's procedural requirement that he bore the burden of producing evidence of a proper license as an affirmative defense; otherwise, the absence of such proffered evidence would give rise to a presumption that he did not have a valid license. (Had he produced any such evidence, the prosecution would then have had to demonstrate that the defense did not exist.) The Supreme Judicial Court concluded that the Massachusetts procedure comported with federal due process, see Commonwealth v. Powell, 946 N.E.2d 114 (Mass. 2011), and the First Circuit rejected Powell's protest.
In view of the foregoing, this Court has some difficulty accepting Ortiz's claim that he enjoys automatic standing to contest this state's statutory permit policies. In its pleadings, the state asserted that Ortiz has affirmatively failed to demonstrate that he has standing to challenge all of them. (Mem. at 2, Aug. 14, 2020.) At oral argument, however, the state, without explanation, appeared to voice only tepid objection to Ortiz's constitutional challenge to § 11-47-8(a), which criminalizes the very failure to comply with the permit statutes referenced therein. The state does firmly maintain that Ortiz is nonetheless without standing to attack §§ 11-47-11 and -18. (Tr. 18, Oct. 29, 2020.) Indisputably, both of those provisions are tightly encinctured by § 11-47-8(a), and it is this Court's view that they cannot be so cavalierly disengaged from the criminal statute. Indeed, Ortiz himself agrees that all three statutes must be weighed in the balance of his constitutional challenges. Id. at 26.
The Court is, however, a bit puzzled that Ortiz did not file his dismissal motion under Rule 12(b)(2), Super.R.Cr.P., seemingly the most available avenue by which to pursue his claims. Failure to timely invoke the rule in order to contest a charged offense which, as here, a defendant contends is defective ab initio, generally results in a waiver of his right to do so.
Rule 12(b)(2) ("Defenses and Objections Which Must Be Raised") provides in relevant part:
"[A]ll [] defenses and objections based on defects in the institution of the prosecution or in the indictment, information, or complaint, . . . may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection [within thirty days after the defendant's initial plea, per R. 12(b)(3)] constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver."
In all, however, because of the substantial importance and the nature of the constitutional question presented in the instant case, and knowing that it will assuredly be a frequently recurring issue in future firearm prosecutions, this Court concludes that notwithstanding its concerns relating to Ortiz's standing to assert his constitutional challenge, the merits of his claim must be addressed. The state will suffer no prejudice thereby.
The Assistant Public Defender representing Ortiz filed an identical motion in an unrelated criminal firearm action, and he has advised the Court and the prosecution that he intends to file the same motion in every single case alleging a violation of § 11-47-8(a), whether pending on the Providence Gun Court Calendar or on calendars in the outer counties.
Therefore, this Court will accord Ortiz a platform, even if rickety, from which to advance his claims. See Watson v. Fox, 44 A.3d 130, 138 (R.I. 2012) and Burns v. Sundlun, 617 A.2d 114, 116 (R.I. 1992) (allowing the sentry to occasionally lift the standing gate so that issues of substantial public interest may be examined on their merits).
III. Analysis
The Rhode Island and Federal Constitutions
The United States and the Rhode Island Constitutions are different from one another with respect to firearms. The Second Amendment of the United States Constitution recites: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." Article 1, section 22 of the Rhode Island Constitution provides: "The right of the people to keep and bear arms shall not be infringed." Not included in the Rhode Island constitution is any reference to the militia, but its absence does not affect the within Decision or the constitutionality of this state's Firearm Act.
In Mosby, decided well before Heller (2008) and McDonald (2010), the Rhode Island Supreme Court in 2004 undertook a complete conspectus of this state's Firearms Act (§§ 11-47-1 et seq.) and concluded (4-1) that the entire framework was constitutional. Mosby, 851 A.2d at 1045. Although the landscape has changed markedly in some jurisdictions due to Heller and McDonald, no Rhode Island court has been asked to fully reassess this state's firearm regime in the context of its own constitution, much less in the Second Amendment arena.
Indeed, the Mosby Court never even considered the Second Amendment, deliberately marginalizing its materiality. "Because plaintiffs' claim is grounded on the Rhode Island Constitution rather than the United States Constitution, we need not join the heated debates over the origins and proper interpretation of the Second Amendment." Mosby, 851 A.2d at 1039. "Rather, the role of the Second Amendment is clear: '[t]his is one of the amendments that has no other effect than to restrict the powers of the National government.'" Id. at 1040 (quoting Presser v. Illinois, 116 U.S. 252, 265 (1886)).
Any notion that the Second Amendment no longer has any present relevance to state law is an interpretation which is now foreclosed by McDonald.
* * *
There is no need to expand the pages of this Decision unnecessarily with an explication of Mosby, other than to mark some of its key points which foreshadow Heller and its progeny:
• The state's constitutional right to keep and bear arms, whether a fundamental liberty interest or not, is not absolute. Mosby, 851 A.2d at 1044.
• The General Assembly has carefully avoided any restriction on gun ownership by a homeowner. Id. at 1047.
• The Rhode Island Supreme Court's evaluation of legislative enactments is "extremely deferential" to the General Assembly. Id. at 1045.
• An individual's right to possess a firearm beyond the home is subject to "reasonable regulation by the state in exercising its police power," and will be assessed, not under the "strict scrutiny" test, but, instead, will turn on whether the regulatory statute is "a reasonable exercise of police power." Id. at 1039, 1044.
• A statute vesting state authorities with discretion to issue a firearm permit based upon an applicant's "proper showing of need" for the weapon is constitutional. Id. at 1047.
• Appeals of permit denials are through judicial review.
• When viewed in their entirety, the Rhode Island regulatory policies serve "to vindicate an individual's right to keep and bear arms and that the licensing scheme set forth in the Firearms Act is reasonable legislative regulation of weapons that falls squarely within the state's police power." Id. at 1043.
The Scope of Heller and McDonald
The Core Right of the Second Amendment
The issues presented to the Supreme Court in Heller and McDonald were narrow, as were their holdings. Both targeted regulatory measures which precluded individuals from possessing handguns in their homes. Heller identified the Second Amendment's core protection as "the right of law-abiding, responsible citizens to use arms in defense of hearth and home," Heller, 554 U.S. at 635, holding that precluding such an individual from possessing in his or her home an operable handgun - "the most preferred firearm in the nation to keep and use for protection of one's home and family" - would fail to pass muster "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights." Id. at 628-29.
Two years later, invoking the Due Process Clause of the Fourteenth Amendment, the McDonald Court extended Heller to the states when it voided similar firearm restrictions in Chicago. The Court again, however, did not delineate Second Amendment margins beyond "a man's castle." See Payton v. New York, 445 U.S. 573, 596 (1980).
Limiting the Second Amendment's core right to hearth and home, Judge Selya wrote in Gould:
"We make explicit today what was implicit in Hightower: that the core Second Amendment right is limited to self-defense in the home. This holding finds support in a number of out-of-circuit cases. See, e.g., United States v. Focia, 869 F.3d 1269, 1285 (11th Cir. 2017); Tyler v. Hillsdale Cty. Sheriff's Dep't, 837 F.3d 678, 685 (6th Cir. 2016) (en banc); Drake, 724 F.3d at 436; Woollard, 712 F.3d at 876; NRA, 700 F.3d at 206; Kachalsky, 701 F.3d at 93; Reese, 627 F.3d at 800.
***
"We think that the weight of circuit court authority has correctly identified the core of the Second Amendment, and our own precedent fits comfortably within those boundaries. We think, too, that this configuration of the Second Amendment's core interest is consistent with Heller, in which the Court declared that the home is where 'the need for defense of self, family, and property is most acute,' such that the Second Amendment 'elevates above all other interests the ... defense of hearth and home.' 554 U.S. at 628, 635." Gould, 907 F.3d at 671.
Without exhortation from the federal sidelines, and well before Heller and other federal appellate courts decreed that the core right of the Second Amendment lay within one's home, the Rhode Island Supreme Court had already pointed out that when the legislature enacted this state's Firearm Act, its intent was not "to infringe upon the privacy of any family, home or business except by lawful warrant" and that "the General Assembly carefully has avoided any restriction on gun ownership by a homeowner or landowner." Mosby, 851 A.2d at 1046-47. Accordingly, Rhode Island is and has been consistent with Heller and other appellate tribunals which limit the core right of the Second Amendment's protection to the "right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 628, 635; Worman v. Healey, 922 F.3d 26, 36 (1st Cir. 2019), cert. denied, ___ U.S. ___, 2020 WL 3146687, at *1 (June 15, 2020); Gould, 907 F.3d at 671; McGinnis, 956 F.3d at 754; Drake v. Filko, 724 F.3d 426, 431 (3rd Cir. 2013).
* * *
Although neither Heller nor McDonald offered particularized standards for determining when or how Second Amendment rights might permissibly be regulated outside residential boundaries, it is clear, contrary to Ortiz's druthers, that Heller did not "effectively hit the reset button for all Second Amendment jurisprudence." McGinnis, 956 F.3d at 755. It did not "imperil every law regulating firearms," and it "never presumed 'to clarify the entire field' of permissible Second Amendment regulation." Heller and Gould "merely scratched the surface," offering little clarity as to how courts should analyze future Second Amendment claims. Gould, 907 F.3d at 667-68.
Justice Scalia, writing for the majority, expressly cautioned that the Second Amendment right "is not unlimited," and, other than identifying accepted examples of "presumptively lawful regulatory measures" (see footnote 5, supra), the Court declined to "clarify the entire field" of Second Amendment jurisprudence. Heller, 554 U.S. at 626-27 and n.26, 635. See Kachalsky v. County of Westchester, 701 F.3d 81, 89 (2d Cir. 2012), cert. denied, sub nom. Kachalsky v. Cacace, 569 U.S. 918 (2013) and United States v. Marzzarella, 614 F.3d 85, 92 (3d Cir. 2010), cert. denied, 562 U.S. 1158 (2011) (observing that "Heller did not purport to fully define all the contours of the Second Amendment").
The full complement of the Seventh Circuit has also directed us "not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment creates individual rights, one of which is keeping operable handguns at home for self-defense. What other entitlements the Second Amendment creates, and what regulations legislatures may establish, were left open." United States v. Skoien, 614 F.3d 638, 640 (7th Cir. 2010) (en banc), cert. denied, 562 U.S. 1303 (2011); see In re Wheeler, 81 A.3d 728, 749 (N.J. Super. Ct. App. Div. 2013).
Level of Scrutiny
Filling the void left by Heller, courts have employed a two-step analysis for evaluating whether a law infringes upon Second Amendment rights. See generally, Gould, 907 F.3d at 669; McGinnis, 956 F.3d at 754 (citing NRA, 700 F.3d at 207); Woollard v. Gallagher, 712 F.3d 865, 874 (4th Cir. 2013) (collecting cases). First, the court must determine whether the statute or policy which burdens the conduct comes within the scope of the Second Amendment's guarantee, as historically understood. If the challenged law imposes no such burden, it is constitutionally valid, and the inquiry is at an end.
The First Circuit noted that this is "a backward-looking inquiry" aimed at determining whether the regulated conduct "was understood to be within the scope of the right at the time of ratification." Gould, 907 F.3d at 669. If the claim targets a state law, the pertinent point in time would be 1868, when the Fourteenth Amendment was ratified. In a margin note, the Court observed that it was unimportant to its analysis that the 1868 date contrasted with the date which the Second Amendment and the Bill of Rights were ratified (1791). "It is not at all clear to us that the scope of the Second Amendment should be different when analyzing a federal law than when analyzing a state law. Here, however, we need not probe this point: our conclusion with respect to the historical record would be the same regardless of which ratification date was used." Id. at 669 n.3. Accord, Worman, 922 F.3d at 34; United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012).
Otherwise, the court must proceed to the second step and determine, under some form of heightened scrutiny, whether the subject regulation is constitutionally sanctioned. The applicable level of scrutiny depends upon the nature of the conduct which is being regulated and the extent to which the statute burdens an individual's right under the Second Amendment. If it encumbers conduct which comes within the ambit of a core right of the Second Amendment, then the court examines the rule under a strict level of scrutiny. On the other hand, if it burdens conduct which falls outside the periphery of the core right, the court recedes to a lesser, intermediate observation post.
Strict scrutiny "requires that the challenged statute be narrowly drawn to provide the least restrictive means of furthering a compelling state interest." McGinnis, 956 F.3d at 754 (internal quotation omitted). Strict scrutiny does not, however, automatically attach to every right enumerated in the constitution. See Kelo v. City of New London, 545 U.S. 469, 480 (2005) (refusing to apply strict scrutiny in Takings Clause context); Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (applying intermediate scrutiny to content-neutral time, place, and manner restriction challenged on First Amendment grounds); Gould, 907 F.3d at 670; Heller v. District of Columbia, 670 F.3d 1244, 1256 (D.C. Cir. 2011) (Heller II) ("The [Supreme] Court has not said, however, and it does not logically follow, that strict scrutiny is called for whenever a fundamental right is at stake.").
Accordingly, there is a role for some level of constitutional scrutiny, but it is one that is less rigorous than strict scrutiny. Gould, 907 F.3d at 673. See Heller, 554 U.S. at 689 ("[A]doption of a true strict-scrutiny standard for evaluating gun regulations would be impossible.") (Breyer, J., dissenting). To surmount the intermediate scrutiny test, the statute must be '"substantially related to an important governmental objective."' Gould, 907 F.3d at 672; Worman, 922 F.3d at 38 (quoting Clark v. Jeter, 486 U.S. 456, 461 (1988)). Achieving that substantial relationship requires that there is "'a reasonable fit between the challenged regulation and an important government objective.'" McGinnis, 956 F.3d at 754 (quoting NRA, 700 F.3d at 195 (emphasis added)); Gould, 907 F.3d at 674. A "reasonable" fit does not require a perfect fit, nor must the legislature's chosen means be "narrowly tailored" to achieve its ends. It is less confining than that. "[T]he fit between the asserted governmental interests and the means chosen by the legislature to advance them need only be substantial in order to withstand intermediate scrutiny." Gould, 907 F.3d at 674. In other words, it is '"a reasonable fit"' if the statute '"does not burden more conduct than is reasonably necessary."' Id. (quoting Drake, 724 F.3d at 436 and citing Woollard, 712 F.3d at 878).
Outside the Core Right of the Second Amendment
Allowing the free exercise of a constitutional right within one's home, but statutorily tethering that conduct outside of the residence, is neither novel nor impermissible. "Many constitutional rights are virtually unfettered inside the home but become subject to reasonable regulation outside the home." Gould, 907 F.3d at 672 (citing, e.g., Lawrence v. Texas, 539 U.S. 558, 567 (2003) and Stanley v. Georgia, 394 U.S. 557, 565 (1969)). "Like most rights, the right secured by the Second Amendment is not unlimited," Heller, 554 U.S. at 626, and the Supreme Court has never declared that the Second Amendment confers unbridled immunity to carry a firearm in public, impervious to government oversight. In Gould, Judge Selya admonished those, like Ortiz, who unwisely promote uncurbed versions of Heller, advertising that the Supreme Court has endowed individuals with a limitless Second Amendment right to carry a firearm in a public place for self-defense. It clearly did not.
"[N]othing in Heller 'impugn[s] legislative designs that comprise...public welfare regulations aimed at addressing perceived inherent dangers and risks surrounding the public possession of loaded, operable firearms.' Powell v. Tompkins, 783 F.3d 332, 346 (1st Cir. 2015). This conclusion is reinforced by McDonald - a case in which the Court plainly read Heller in this way, observing that Heller 'does not imperil every law regulating firearms.' 561 U.S. at 786.
"Indeed, Heller itself made precisely this point. The majority opinion there stated that '[l]ike most rights, the right secured by the Second Amendment is not unlimited' and thus does not protect 'a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose' or 'for any sort of confrontation.' 554 U.S. at 595, 626, [and] . . . the Heller Court never presumed 'to clarify the entire field' of permissible Second Amendment regulation." Gould, 907 F.3d at 668.
Notably, the Mosby Court, within the confines of this state's constitution, readily recognized "that the right to possess a handgun, whether a fundamental liberty interest or not, is not absolute and is subject to reasonable regulation." Mosby, 851 A.2d at 1044. Indeed, Justice Flanders, in his dissent, from which Ortiz seeks support, never advocated such a position. He unequivocally acknowledged that the Second Amendment is not absolute, and he also agreed that "the state may regulate the people's constitutionally protected right to keep and bear arms by implementing certain reasonable police-power measures, such as requiring applicants to obtain a license to carry a concealable weapon." Id. at 1055, 1077. The Mosby majority expressed a corresponding sentiment, holding that an individual's "right to keep and bear arms [is] subject, however, to reasonable regulation by the state in exercising its police power." Id. at 1039.
Justice Flanders did complain, however - and correctly, as later cases reflect - that the majority erroneously restricted the public carriage of firearms to the military, declining to include civilians. Mosby, 851 A.2d at 1042-43, 1057. In that respect, the Mosby decision is susceptible to criticism. See McGinnis, 956 F.3d at 753 (citing United States v. Emerson, 270 F.3d 203, 264 (5th Cir. 2001)) ("[T]he Second Amendment protects the right of individuals to privately keep and bear their own firearms...regardless of whether the particular individual is then actually a member of a militia."). That does not mean, however, that the legislature may not regulate a civilian's right to the public carriage of a firearm. It may, and it may also criminalize the possession of that weapon outside one's home without a license. See Powell, supra, and footnote 4; see also 18 U.S.C. §§ 922 et seq., criminalizing various firearm activities in the federal sector.
Public carriage of a firearm beyond the perimeter of one's home has consistently been subjected to state regulation. Gould, 907 F.3d at 671-72; Kachalsky, 701 F.3d at 93-94 (noting that there is a "critical difference" between the core protections of Second Amendment rights in one's home versus their exercise in public). "The state's ability to regulate firearms and, for that matter, conduct, is qualitatively different in public than in the home. Heller reinforces this view." Id. See United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (pointing out that firearm rights outside the home "have always been more limited, because public safety interests often outweigh individual interests in self-defense"). "The State generally has a lesser basis for regulating private as compared to public acts, and firearms kept inside the home generally pose a lesser threat to public welfare as compared to firearms taken outside." McDonald, 561 U.S. at 887 (Stevens, J., dissenting).
Allowing an individual to carry a firearm outside the residence for self-defense is "plainly more circumscribed," particularly in densely populated urban areas, where "American cities have traditionally had much more stringent gun control than rural areas." Gould, 907 F.3d at 671-72 (citing Joseph Blocher, Firearm Localism, 123 Yale L.J. 82, 108 (2013)). The First Circuit has also emphasized that the interest "in carrying concealed weapons outside the home is distinct from th[e] core interest emphasized in Heller." Hightower, 693 F.3d at 72. And in Gould it agreed with the District Court that the "operative distinction" between the core right identified in Heller and the periphery of the Second Amendment "was whether the individual asserted his Second Amendment right outside or inside the home." Gould, 907 F.3d at 671.
* * *
Cognizant that "there is no national consensus, rooted in history, concerning the right to public carriage of firearms," the First Circuit and others have concluded that Heller nevertheless implied that the Second Amendment right to carry a firearm for self-defense does exist, in some fashion, outside the home. Gould, 907 F.3d at 669-71; see Williams, 10 A.3d at 1179 (Murphy, J., concurring). Additionally, the First Circuit, like so many other courts, has embraced the intermediate level of scrutiny as the appropriate tool by which to test the constitutionality of a state policy which, although not within the core right of the Second Amendment as identified by Heller, may burden the exercise of conduct beyond the circumference of the home. "[W]e decide today that intermediate scrutiny supplies the appropriate test... [and] a law or policy that restricts the right to carry a firearm in public for self-defense will withstand a Second Amendment challenge so long as it survives intermediate scrutiny." Gould, 907 F.3d at 672-73.
That conclusion is entirely consistent with the determination made by the Mosby Court, which expressly rejected the use of the strict scrutiny test to examine challenges to this state's firearm framework. Mosby, 851 A.2d at 1044-45. See United States v. Miller, 604 F.Supp.2d 1162, 1170 (W.D. Tenn. 2009) (citing Mosby's rejection of the intermediate scrutiny test.)
"Nor have our sister circuits shied away from a conclusion that intermediate scrutiny is the appropriate test for evaluating firearms regulations that burden conduct falling outside the core of the Second Amendment." Gould, 907 F.3d at 672 (citing Bonidy v. U.S. Postal Service, 790 F.3d 1121, 1126 (10th Cir. 2015); Drake, 724 F.3d at 435; Woollard, 712 F.3d at 876; Kachalsky, 701 F.3d at 96; NRA, 700 F.3d at 196; Ezell v. City of Chicago, 651 F.3d 684, 707-08 (7th Cir. 2011); and Tyler v. Hillsdale County Sheriff's Dep't, 837 F.3d 678, 692 (6th Cir. 2016) (en banc) (noting a "near unanimous preference for intermediate scrutiny" in such cases). Not only has the First Circuit and the overwhelming weight of the federal forums, as well as the Rhode Island Supreme Court, concluded that intermediate scrutiny provides the best vantage point from which to assess the constitutionality of statutes which affect possessing firearms outside the home, so have other state appellate tribunals. See Rocky Mountain Gun Owners v. Hickenlooper, 371 P.3d 768, 773 and n.4 (Colo. App. 2016) (noting a body of case law and commentary relating to courts which have opted to apply intermediate rather than strict scrutiny).
* * *
Summing up then: (1) the core right protected by the Second Amendment is the right of law-abiding, responsible citizens to possess firearms in defense of hearth and home; (2) the public carriage of a firearm for self-defense falls outside the perimeter of that core right; and (3) government policies which burden the Second Amendment right beyond the eaves of the home are evaluated under an intermediate level of scrutiny.
Application of the Intermediate Level of Scrutiny
As noted earlier, to pass the intermediate scrutiny mark, Rhode Island's firearm permit enactments must substantially relate to one or more important governmental interests, a standard which requires showing a reasonable fit between the challenged regulation and the government's significant objective, not a perfect match. Gould, 907 F.3d at 670-71; McGinnis, 956 F.3d at 754; Woollard, 712 F.3d at 878. In making that determination, our Supreme Court and other state and federal courts have comfortably deferred to state legislators and policy makers who have considered the particularized needs of their communities and made judgments from their front row vantage points. Gadomski, 113 A.3d at 389-92; Mosby, 851 A.2d at 1045; Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 665 (1994) (stating that in assessing this "fit," we afford "substantial deference to the predictive judgments of Congress"); see In re Wheeler, 81 A.3d at 756-57 (observing that federal appellate courts addressing firearms laws have deferred to a state legislature's predictive determinations) (citing Drake, 724 F.3d at 438); Kachalsky, 701 F.3d at 99 (observing that "[i]t is the legislature's job, not ours, to weigh conflicting evidence and make policy judgments"); Schrader, 704 F.3d at 990 (same). "This is especially true of fraught issues, such as gun violence: when it comes to collecting evidence and drawing factual inferences in this area, the lack of competence on the part of the courts is marked and respect for the Government's conclusions is appropriate." Gould, 907 F.3d at 676. Most recently the Third Circuit pointedly remarked:
"[W]e respect the legislatures' choices about which crimes count as serious and preserve the states' traditional autonomy to 'define crimes [and] punishments.' Danforth v. Minnesota, 552 U.S. 264, 280 (2008). This ensures that disarmament decisions reflect the views and values of our communities, as well as the expertise and experience of legislatures '"far better equipped than the judiciary' to make sensitive public policy judgments.'" Folajtar v. Attorney General of the United States, ___ F.3d ___ (3d Cir. 2020), 2020 WL 6879007, at *6 (Nov. 24, 2020) (internal quotation omitted).
Ortiz decries widening the examination lens beyond strict scrutiny (Mem. at 2-3, Sept. 19, 2019), and defense counsel further insisted during oral argument that even if an intermediate level of scrutiny is the analytic diopter, the statutory framework is entirely without a compelling state interest, stating: "I would also argue that even if, as the State argues, intermediate scrutiny is applicable, our statutory scheme has not put forward any government interest, any legitimate government interest." (Tr. 25, Oct. 29, 2020.)
Defense counsel also suggested that Rhode Island's statutory scheme might "theoretically" bolster state interests if it at least "requires safety tests, for example." Id. He was reminded, however, that Rhode Island's licensing requirements manifestly contain precisely such safety prerequisites. Id. at 25-26, 29. Pursuant to § 11-47-15, an explicit permit condition within § 11-47-18(a) (and also expressly referenced in Ortiz's September 19, 2019 memorandum at page 3), no permit may be issued without certification from an authorized firearm instructor or range officer that the applicant has, in fact, qualified to fire a weapon commensurate with or greater than the caliber of the firearm identified in the permit application. See Jones v. Becerra, ___ F.Supp.3d ___ (S.D. Cal. 2020), 2020 WL 6449198, at *6, 7 (Nov. 3, 2020) (emphasizing that successfully completing firearms training is a "modest requirement" which furthers public safety objectives).
To obtain the requisite safety certification, an applicant must satisfy the following statutory test:
"§ 11-47-15. Proof of ability required for license or permit.
No person shall be issued a license or permit to carry a pistol or revolver concealed upon his or her person until he or she has presented certification as prescribed in § 11-47-16 [identifying firearm instructors and range officers] that he or she has qualified with a pistol or revolver of a caliber equal to or larger than the one he or she intends to carry, that qualification to consist of firing a score of 195 or better out of a possible score of 300 with thirty (30) consecutive rounds at a distance of twenty-five (25) yards on the army "L" target, firing "slow" fire. The "slow" fire course shall allow ten (10) minutes for the firing of each of three (3) ten (10) shot strings."
Ortiz's remonstration at oral argument that there is no compelling or worthwhile government objective even to support intermediate scrutiny of this state's Firearm Act is an ill- conceived notion which is easily outbalanced on any fulcrum. Rhode Island, like all states, has a paramount objective and responsibility in public safety and crime prevention, and "few interests are more central to a state government than protecting the safety and well-being of its citizens." Gould, 907 F.3d at 673. "[T]he harm caused by gun violence in this country has been well-documented, and government efforts to curtail this threat have a direct impact on domestic security." Miller, 604 F.Supp.2d at 1171 (citing statistics). The Rhode Island General Assembly has emphasized that sentiment and expressed it in many ways. In 1994, when it established the Gun Court Calendar, the first of its kind in the nation, and from whence the instant case arises (G.L. 1956 § 8-2-15.1), the legislature said:
"It is hereby declared to be the policy of the state of Rhode Island to provide maximum safety and security to its people from unlawful gun related violence and intrusion upon their persons and property by expediting the processing and disposition of such cases and, unless otherwise provided, imposing prison terms that must be served." Section 8-2-15.1(b).
The General Assembly has also mandated consecutive sentences for crimes of violence carried out with firearms (§§ 11-47-3.2 et seq.); generally embraced an entire panoply of criminal offenses and civil statutes aimed at curbing the unlawful possession and misuse of firearms (§§ 11-47-1 et seq.); and, most recently in 2014, directed sentence enhancement for offenses committed by criminal street gangs, which invariably involve the use of firearms (§ 12-19-39). See United States v. Morrison, 529 U.S. 598, 618 (2000) ("Indeed, we can think of no better example of the police power ... than the suppression of violent crime....").
In deference to a legislature's balancing Second Amendment rights and the state's imperative safety concerns for its residents by requiring carriage permits, the courts have identified multiple sound reasons which support gun licensing laws:
• States with more restrictive licensing schemes for the public carriage of firearms experience significantly lower rates of gun-related homicides and other violent crimes.
• Gun owners are more likely to be the victims of gun violence when they carry their weapons in public.
• Law-abiding citizens may miss when attempting to use a firearm for self-defense in crowded public areas, thereby risking fatalities and serious injuries to innocent bystanders.
• Permit laws inhibit crime by decreasing the availability of handguns to criminals via theft.
• Licensing regulations reduce the likelihood that basic confrontations, which invite less than lethal force between individuals, may turn deadly.
• Such statutes deter tragic consequences which may result from the presence of an armed third person during a confrontation between a police officer and a criminal suspect.
• Requiring permits curtails the presence of handguns during routine police-citizen encounters.
• They decrease the number of reported handgun sightings which must be investigated.
• They also facilitate the identification of those persons carrying handguns who pose a menace. See Gould, 907 F.3d at 674-75.
Even just a few of those reasons would readily surmount the intermediate scrutiny test and validate carriage permit statutes. When viewed in the aggregate, the sum is manifestly greater than the individual parts. Collectively, they provide more than ample support for averting danger to the state's populace, as well as to its constabulary, by sensibly disallowing handgun owners from mingling in the community with loaded firearms unless they have a justifiable need for the weapon. Justice Stevens' balanced sentiments, even in dissent, are especially befitting here:
"Hence, in evaluating an asserted right to be free from particular gun-control regulations, liberty is on both sides of the equation. Guns may be useful for self-defense, as well as for hunting and
sport, but they also have a unique potential to facilitate death and destruction and thereby to destabilize ordered liberty. Your interest in keeping and bearing a certain firearm may diminish my interest in being and feeling safe from armed violence. And while granting you the right to own a handgun might make you safer on any given day - assuming the handgun's marginal contribution to self-defense outweighs its marginal contribution to the risk of accident, suicide, and criminal mischief - it may make you and the community you live in less safe overall, owing to the increased number of handguns in circulation. It is at least reasonable for a democratically elected legislature to take such concerns into account in considering what sorts of regulations would best serve the public welfare." McDonald, 561 U.S. at 891-92 (alterations in the original text).
Put simply, firearms create or exacerbate accidents and deadly encounters. Permit laws reduce those risks. Bonidy, 790 F.3d at 1126 (satisfying the intermediate scrutiny test).
This Court rejects Ortiz's jejune suggestion at oral argument that "the fact that there are more guns on the street is not a legitimate interest for the government." Tr. at 27, Oct. 29, 2020. It is a mystifying negation of preponderant commentary and authorities which discredit such an ill-considered impression. See Gould, 907 F.3d at 675; Miller, 604 F.Supp.2d at 1171-72; Mark Duggan, "More Guns, More Crime," 109 J. Pol. Econ. 1086, 1112 (2001).
Justifiable Need for a Firearm
Ortiz nonetheless complains that requiring an applicant to proffer any reason to justify a request for a carry permit is inherently unconstitutional. The Court disagrees.
Justice Alito made it clear in McDonald that applying Heller to the states "by no means" eliminated a state's "ability to devise solutions to social problems that suit local needs and values" and he agreed that a state's "reasonable firearms regulations will continue under the Second Amendment." McDonald, 561 U.S. at 785. In the wake of Heller and McDonald, the Rhode Island Supreme Court and the United States District Court for Rhode Island have examined "need" or "justification" prerequisites for carry permits. Both courts have approved such a requirement in the context of their respective constitutions. See Gadomski, 113 A.3d at 390-92; Gendreau v. Canario, 188 F.Supp.3d 140, 144 (D.R.I. 2016) (McConnell, J.).
Other state and federal courts have also approved need or justification imperatives in order to obtain a firearm license. Gould, 907 F.3d at 672; Woollard, 712 F.3d at 876 (holding that Maryland's "good-and-substantial-reason" requirement for issuing a permit "passes constitutional muster"); Kachalsky, 701 F.3d at 83-84 (upholding New York's requirement that the applicant demonstrate "proper cause" for a concealed weapon permit); Drake, 724 F.3d at 431-32 (holding "that even if some protected right to carry arms outside the home exists, the challenged requirement that applicants demonstrate a 'justifiable need' to obtain a permit to publicly carry a handgun for self-defense qualifies as a [90-year] 'longstanding,' 'presumptively lawful' regulation" under Heller); In re Wheeler, 81 A.3d at 760 (holding that the "justifiable need" requirement "accommodates [the Second Amendment] right in a manner that is wholly compatible with the right of self-defense"), reaffirmed, Matter of Denial of Ciolek's Application for Firearms Purchaser, No. A-3510-17T2, 2019 WL 406129, at *2 (N.J. Super. Ct. App. Div. 2019) ("We add only that the 'justifiable need requirement' . . . has been found constitutional in Drake . . ., and in our decision in In re Wheeler . . . We find no basis in the record to depart from that well-reasoned precedent."). (Internal citations omitted.)
In Drake, the Third Circuit observed that New Jersey's "justifiable need" standard had existed in some form for nearly ninety years, and that New York's adoption of a "proper cause" standard in 1913, eleven years before New Jersey required one (and upheld in the Second Circuit's Kachalsky decision), "supports our conclusion that New Jersey's 'justifiable need' standard may be upheld as a longstanding regulation." Drake, 724 F.3d at 434. The subject Rhode Island statutes are also vintage: § 11-47-8 (dating from 1927); § 11-47-11 (same); § 11-47-18 (1950).
Judicial Review Process
Ortiz also complains that there is insufficient specificity in the permit application and review process. He relies principally on Gadomski and upon Justice Flanders' unprevailing dissent in Mosby. His reliance is misplaced in both instances. Although Judge Flanders preferred a better scripted and more predictable arrangement for the licensing process and the procedure for reviewing a permit denial, Mosby, 851 A.2d at 1077, history has shown that such a scordatura is simply unnecessary.
Of particular importance to the First Circuit's finding the Massachusetts licensing regime constitutional was a track in the permit process "for administrative or judicial review of any license denial," and noting similar review methods identified by the Second, Third, and Fourth Circuit Courts of Appeal. Gould, 907 F.3d at 674 (emphasis added); Hightower, 693 F.3d at 67; Drake, 724 F.3d at 428-29, 439-40; Woollard, 712 F.3d at 868-70, 882; Kachalsky, 701 F.3d at 85-87, 101.
Long before Gould and the other courts voiced approbation for firearm regimes which included judicial review of denials of permit applications, Rhode Island already had one, and it has been utilized effectively and precisely as contemplated. Indeed, Mosby itself was decided by direct appeal to our Supreme Court under just such a judicial review process. Mosby, 851 A.2d at 1050 (emphasizing that "[t]he opportunity for judicial review of a licensing body's decision under the Firearms Act is especially important when considering the nature of the right sought to be vindicated through the application process"). In Gadomski, a § 11-47-18 case which predates Gould by three years, the Court relied extensively on Mosby's eleven-year-old judicial review roadmap. Both Mosby and Gadomski ordered remands after appeals by disappointed permit applicants seeking judicial review.
As earlier noted, there are two statutory methods to seek a carry permit: §§ 11-47-11 and -18. Section 11-47-18 provides the Attorney General with discretion to grant a license "upon a proper showing of need." Section 11-47-11, addressed to municipal officials, mandates issuance of a permit if the applicant meets all the criteria, including "suitability," an undefined term within the statute. Thus, even though the statute is denominated "mandatory," see supra at 5 and footnote 5, whether an applicant has satisfied the statutory criteria "'involves an exercise of discretion' on the part of local officials." Gadomski, 113 A.3d at 390 (quoting Mosby, 851 A.2d at 1048). Both roads lead to Rome, however. As the cases in the text above demonstrate, an individual who is denied a permit under either avenue may seek judicial redress. Gadomski and Paiva (§ 11-47-11). Mosby (§ 11-47-18). Although the appeal in Mosby was brought after a permit rejection under § 11-47-18, that case made clear that denial of a § 11-47-11 permit also "is subject to review by this Court on certiorari." Mosby, 851 A.2d at 1048.
Other aggrieved permit applicants have employed the judicial review process successfully. See Paiva v. Parella, 176 A.3d 480 (R.I. 2018) (citing Gadomski and remanding the matter for a new decision under § 11-47-11 because the police chief failed to state sufficient facts and findings to support his permit denial). See also De La Cruz v. Parella, No. 16-167-M.P., 16-168-M.P., 16-190-M.P., 2016 WL 6395934 (R.I. Oct. 25, 2016) (order granting petitioner's writ and vacating the denial of applications for concealed weapon permits). Rather than a modem for change, as Ortiz suggests, Gadomski and Mosby for years have been and remain totems for the manner and means by which disappointed permit applicants may seek judicial redress, the importance of which the First Circuit emphasized when it approved the Massachusetts regime. Gould, 907 F.3d 674.
The De La Cruz Order was not published. Such rulings generally have no precedential effect or value, and the Supreme Court has directed that they not be advanced for that purpose. See R.I. Supreme Court, Article I, Rule 16(j); Nunes v. Meadowbrook Development Co., Inc., 807 A.2d 943, 945 (R.I. 2002) (Mem.) (referencing an earlier version of Rule 16(h)); Whitaker v. State, 199 A.3d 1021, 1029 n.3 and 1030 n.5. (R.I. 2019); Estate of Chen v. Ye, 208 A.3d 1168, 1175 n.8 (R.I. 2019). The Supreme Court has, however, somewhat relaxed that admonition and has allowed reference to unpublished opinions, not for their precedential worth, but "by way of example," or if they are "instructive." Whitaker, 199 A.3d at 1029 n.3 and 1030 n.5; or, because they are "illustrative of the way in which courts have dealt with [the] issue." Estate of Chen, 208 A.3d at 1175 n.8. It is in that limited fashion that the De La Cruz Order is cited here, i.e., not for precedential value but, instead, simply for informational and illustrative purposes, as that Order is entirely consistent with and, in fact, tracks Gadomski as its guide in granting the writ.
Conclusion
In the context of our state's constitution, the Mosby Court rejected a strict scrutiny analysis and held that this state's Firearm Act passed constitutional muster. And long after Heller and McDonald - and with the certain knowledge of those and other resulting Second Amendment decisions - the Rhode Island Supreme Court and courts outside of Rhode Island still cite Mosby as authoritative law. State v. Hazard, 68 A.3d 479, 492 (R.I. 2013) (reaffirming Mosby's pronouncement that the Rhode Island "Firearms Act in its entirety reveals an orderly statutory scheme designed to regulate the possession and use of an array of weapons, including pistols, rifles and other deadly weapons"); Gadomski, 113 A.3d at 389-92; Miller, 604 F.Supp.2d at 1170 n.11; Rocky Mountain Gun Owners, 371 P.3d at 773.
Withal, in assessing Ortiz's entreaties, this Court asks: do our statutes requiring firearm permit laws contained in this state's Firearm Act, which was validated under the Rhode Island Constitution by Mosby sixteen years ago and more recently by Hazard, also survive the intermediate scrutiny test under the Second Amendment? Or, putting it differently: is there a reasonable fit between those permit laws and important state objectives?
There is no dispute that reducing catastrophic gun violence and the harm caused by the misuse of firearms, whether by accident or design, are more than just important government interests; they are compelling and paramount ones. The only dispute is whether those statutes are reasonably adapted to address those interests. They are.
The defendant's motion to dismiss is denied.
ATTORNEYS:
For Plaintiff: Katelyn M. Revens, Esq.
For Defendant: Daniel E. Ciora, Esq.