Grandparents, guns, and guardianship: incapacity and the right to bear arms.

• Author: Adams, Carla-Michelle
• Position: Florida

The Bill of Rights is the touchstone for identification of constitutional guarantees because it enumerates the fundamental rights that are afforded to U.S. citizens. The framers of the Constitution codified the Bill of Rights in an effort to identify clearly the rights that would be deemed fundamental and inherent to our status as citizens. The U.S. Constitution promises all United States citizens unwavering rights that will be subjected to government interference only for a compelling state interest in a manner that constitutes the least restrictive means. The Second Amendment, which creates an individual privilege to bear arms, is explicitly guaranteed by the Bill of Rights, thereby establishing the right to bear arms as a fundamental right. (1) The right to bear arms is reflective of the assertion that a well-regulated militia is necessary for the security of the free state, thereby the right of the people to keep and bear arms shall not be infringed. (2) The Second Amendment, included in the Florida Constitution by operation of the Privileges and Immunities Clause of the 14th Amendment, protects the right to keep and bear arms, including handguns, for purpose of self-defense.

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court indicated that the right to bear arms is a constitutional guarantee, deeply rooted in American tradition. However, the Court further indicated that the right to bear arms does not exist as a constitutional guarantee without limitation or regulation. The right to bear arms, while identifiable as a fundamental right, is subjected to state limitation. (3) As communicated by the Court in Heller, citizens of Florida are afforded the right to bear arms, limited by reasonable state regulation. Therefore, the right to bear arms is, in fact, susceptible to state regulation as long as the regulation is a reasonable restriction of the fundamental right.

In considering the right to bear arms as a fundamental right, the right to bear arms is implicated in the judicial inquiry in guardianship proceedings in which the court is required to make an assessment as to which rights will be retained by a ward upon a finding of incapacity. While guardianship is a legal tool that can be used to protect vulnerable individuals lacking mental capacity, guardianship can result in a dramatic reduction in fundamental rights. (4) Furthermore, the reduction of fundamental rights in guardianship proceedings should also include extinguishment of the right to bear arms in an effort to ensure that the safety of both the ward and the public at large is maintained.

It is imperative that the Florida Legislature utilize the constitutional power with which it is vested to enact regulation regarding the retention of the right to bear arms in guardianship proceedings. While the right to bear arms is a fundamental right, it is not absolute. The right of the people is limited by the ability of the legislature to enact valid police regulations to promote the health, morals, safety, and general welfare of the people. (5) Florida has failed to indicate whether the right to bear arms, meaning access or possession of a firearm, is a right that is extinguished upon the court determining that a ward lacks capacity. Despite the fact that the right to bear arms is a fundamental right, the Second Amendment should be included in the enumerated rights subject to removal upon a finding of incapacity in order to ensure the safety of the general public and the ward. (6)

Guardianship, Findings of Incapacity, and Regulation of Fundamental Rights

Guardianship is the creation of a relationship between the state and one person, the guardian, who is given the authority to make a decision for the incapacitated person, known as the ward. (7) Guardianship proceedings are initiated when it is believed that a party no longer has capacity to make competent decisions regarding his or her person or property. The concept of guardianship is rooted in the doctrine of parens patriae, which is the idea that the state is charged with the responsibility of ensuring the protection of adults who are unable to provide for their own care. (8) Therefore, the court has the authority and jurisdiction to appoint persons or agencies to function as guardians for the incapacitated ward. (9) Florida permits the petitioning party to establish the rights that they believe the alleged incapacitated party is incapable of exercising. Therefore, the petition to determine incapacity is inclusive of the...