Gun Controls and the Connecticut Constitution

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 66 Pg. 425
Connecticut Bar Journal
Volume 66.

66 CBJ 425. Gun Controls and The Connecticut Constitution


Gun Controls and The Connecticut Constitution


In response to the June 10, 1992, shooting of New Haven kindergartner Cesar Sandoval, Governor Weicker called a Special Session of the Connecticut General Assembly to consider various gun control proposals. Although proposals dealing with guns and juveniles were generally successful, (fn1) the most controversial proposals - a ban on assault weapons and a ban on Saturday Night Special handguns - did not pass. One important issue that legislators must address if similar bills are introduced in the future is whether proposed gun control laws would violate either the United States Constitution or the Connecticut Constitution.

The Second Amendment to the United States Constitution provides that:

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 15 of the Connecticut Constitution provides that:

Every citizen has a right to bear arms in defense of himself and the state.

The federal courts have consistently held that the Second Amendment does not apply to the states (fn2) and that it forbids Congressional infringement only in relation to weapons that are reasonabl[y] related to the preservation and efficiency of a well regulated militia." (fn3) Although the courts' refusal to apply the Second Amendment to the states may be well settled, -there is still a fair amount of academic debate as to whether the Second Amendment should be applied to the states through the Fourteenth Amendment. (fn4)

This article analyzes the scope of the Connecticut constitutional right to bear arms by examining firearms statutes and case law (fn5) in Connecticut, Alabama, and Michigan, all of which have virtually identical constitutional right to bear arms provisions. (fn6) Courts in all three states have repeatedly held that the right to bear arms is subject to the reasonable exercise of the


state's police power, i.e., the power to provide for the health, safety and general welfare of its citizens. Based on the analyses in these decisions, the Connecticut General Assembly has the power to tighten firearm permit requirements, to require a special permit to carry a concealed weapon, to stiffen penalties for violations of existing firearms statutes, and to ban assault rifles and Saturday Night Specials. (fn7) These gun controls would not violate either Article 1, Section 15 of the Connecticut Constitution or the Second Amendment to the United States Constitution. (fn8)


A. Statutes

Connecticut General Statutes Section 29-35(a) (1992) provides that "No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28." The terms "pistol" and "revolver" refer to "any firearm having a barrel less than twelve inches in length." (fn9) Connecticut General Statutes Section 29-28 (1992) authorizes the chief of police for a city, the warden of a borough, or the first selectman of a town, to issue permits to carry, or sell at retail, a pistol or a revolver, as long as "such authority shall find that [the] applicant intends to make no use of any pistol or revolver which he may be permitted to carry thereunder other than a lawful use and that [the applicant] is a suitable person to receive such permit."(fn10)

Connecticut General Statutes Section 29-33 (1992) provides that an application is needed to purchase a pistol or revolver at retail and establishes a two-week waiting period for purchasers


who do not have a valid state permit. Connecticut General Statutes Section 29-37a (1992) establishes an application requirement and two-week waiting period for the purchase of a sawed-off shotgun, machine gun, rifle or shotgun. (fn11) Purchasers who hold a state pistol or revolver permit or a valid hunting license (if they want to purchase long rifles or shotguns) are exempt from the statutory waiting period.

The penalty for violating Section 29-28 (permit requirement for firearm sellers and owners) or Section 29-33 (application and waiting period requirements) is a maximum fine of five hundred dollars and/or imprisonment for up to three years. (fn12) The penalty for violating Section 29-35(a) (permit requirement for individuals) is a maximum fine of one thousand dollars and imprisonment for one to five years.

Connecticut General Statutes Section 29-35(b) (1992) requires that "[t]he holder of a permit issued pursuant to section 29-28 shall carry such permit on his person while carrying such pistol or revolver." The penalty for violating this section is a thirty-five dollar fine. (fn13)

B. Case law

In State v. Bailey, (fn14) the Connecticut Supreme Court upheld a conviction under Section 29-35 even though the trial court did not give a self-defense instruction on that charge. The Court first held that the legislation was a reasonable restriction on the right to bear arms:

It is beyond serious dispute that the legislature has the authority to place reasonable restrictions on a citizen's right to bear arms. Section 29-35 does not forbid persons from


carrying a pistol to protect themselves. It simply places a reasonable limitation on that right by requiring any person who chooses to do so to obtain a permit. Moreover, as the issues in this case illustrate, the statute allows persons to carry a pistol in their own dwelling without a permit.(fn15)

The Court then addressed the question of whether the defendant was entitled to a self-defense instruction. By distinguishing punishment for "carrying" a firearm from punishment for "using" a firearm, the Court held that the defendant's self-defense claim was immaterial to the pistol permit prosecution. (fn16) If developed further, this argument would lead to the conclusion that any gun control law that forbids the possession of all firearms, but not the use of those weapons, would not violate Article 1, Section 15 of the Connecticut Constitution. This would effectively nullify the right to bear arms for self-defense.

In a more recent case, Johnsey v. Connecticut Board of Firearm Permit Examiners, (fn17) the Superior Court upheld the Board's denial of a pistol permit to a 20-year-old military policeman in the Connecticut National Guard because the applicant had a "long period of imprudent behavior." The court noted that "[t]he state legislature in the exercise of its police power has imposed certain restrictions on the right of the citizens to possess firearms. Such restrictions have been found to be reasonable and constitutional." (fn18) One implication of this decision


is that National Guard members have no special right to bear arms under Article 1, Section 15. This makes sense because, unlike the Second Amendment to the United States Constitution, Article I, Section 15 of the Connecticut Constitution makes no mention of a militia but instead speaks of a right given to "every citizen." (fn19)

The only decision in Connecticut, Alabama, or Michigan that has even come close to holding a gun control statute unconstitutional is People v. Zerillo. (fn20) In this confusing and sometimes humorous decision, the Michigan Supreme Court reversed an alien defendant's conviction under a game law for possessing a revolver without a permit. (fn21) The preamble to Michigan Public Act No. 14 (1921) was as follows:

An Act to give additional protection to wild birds and animals and game within the state of Michigan, prohibiting the hunting for or capture or killing of such wild birds, or animals, or game, by unnaturalized foreign-born residents, forbidding the ownership or possession of shotgun, or rifle, or pistol, or firearms of any kind, by any unnaturalized foreign-born resident, within the state, and prescribing penalties for violation of its provisions.

The Court held that "while the Legislature has power in the most comprehensive manner to regulate the carrying and use of firearms, that body has no power to constitute it a crime for a person, alien or citizen, to possess a revolver for the legitimate defense of himself and his property." (fn22) The Court then read such


an exception into the statute, in order to avoid holding it unconstitutional. (fn23) Since the complaint did not charge the defendant with hunting for wild game (he had been driving around Detroit at five a.m. with several shotgun-carrying companions), the Court set aside his conviction. (fn24)

People v. Zerillo can perhaps best be understood as the Court's expression of distaste for the apparent use of a game law to disarm an alien. The use of such game laws to disarm people seen as a potential threat to those in power had also been a much decried practice in England three hundred years ago. (fn25) The reasoning in People v. Zerillo has not had much influence on Michigan courts, as illustrated by People v. Brown, (fn26) which is discussed in Part IV below. (fn27)


One purpose of permit requirements is to prevent convicted felons, aliens, and minors from possessing firearms.

A. Felons

Connecticut General Statutes Section 29-29 (1992) requires that an applicant for a pistol or revolver permit give the municipal issuing authority (frequently the chief of police) "full information concerning his criminal record," and that the "issuing authority shall thereupon take a full description and the fingerprints of such applicant and make an investigation concerning his suitability to carry any such weapons." "No permit shall be issued if the...

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