The Right to Bear Arms in Rhode Island, 0417 RIBJ, RIBJ, 65 RI Bar J., No. 5, Pg. 13

The Right to Bear Arms in Rhode Island

Vol. 65 No. 5 Pg. 13

Rhode Island Bar Journal

April, 2017

March, 2017.


While the right to keep and bear arms has been the subject of heated political debate throughout the country, Rhode Island, too, has seen its share of litigation recently over the right to carry a concealed weapon. This follows the national trend whereby citizens are aggressively seeking to enforce and vindicate their civil rights under the Second Amendment and parallel state constitutional provisions.

Until fairly recently, this area of the law has been a disused backwater. For instance, virtually all of the leading constitutional law treatises failed to even mention the Second Amendment until 10 years ago. Largely, this orphanized civil right was neglected over the last several decades, and it took 69 years for the Supreme Court to revisit the Second Amendment after 1939's seminal Miller ruling.1

Similarly, in Rhode Island, our Constitution has protected the right to keep and bear arms since 1842,2 yet, until a decade ago, there were no Rhode Island rulings interpreting this fundamental right. In fact, it was not until 160 years later that our Supreme Court first had "the occasion to interpret the nature of the right provided by art. 1, sec. 22" of our Constitution.3

Beginning in 2002, a series of local rulings and decisions have begun to create a body of law addressing the civil rights of Rhode Islanders with respect to the right to keep and bear arms. These cases have built significant precedents, attracted national attention, and follow the trend of Second Amendment civil rights litigation throughout the country.

Not surprisingly, most of the litigation revolves around the licensing of citizens to carry concealed weapons. These cases uniformly show that Rhode Islanders' civil rights have been repeatedly trampled on and disregarded. Applicants are routinely denied even the most basic due process when seeking to exercise their constitutional rights in this area. For instance, one recurring problem is that although municipalities are obligated to grant licenses to carry concealed weapons to qualified applicants, many refuse to even accept or process applications, despite several Superior Court rulings over the last 15 years granting writs of mandamus against towns for this contumacious behavior.4 In one of the most egregious cases, a representative of the Providence Police Department testified that for "some twenty-two years, it has been the unwritten policy and/or practice of the City of Providence and its police chief not to entertain firearm permits."5 The city also indicated that it did not "believe that it has the authority to issue gun permits because it doesn't have a licensing authority as the City understood that term in the general statutes of the state."6 The court was incredulous and granted the writ.

Another problem is the failure of municipalities to heed the Supreme Court's rebuke. For example, in 2015, East Providence was chastised for applying the wrong statutory standard, when amongst other errors, "As conceded by respondent's counsel at oral argument, an incorrect standard was utilized in conducting the review of petitioner's application. Indeed, a perusal of East Providence's written policy on the carrying of weapons reveals that it is an inappropriate amalgamation of §§ 11-47-11 and 11-47-18."7 Nonetheless, it repeated the very same mistakes throughout the next year in at least a half dozen cases, four of which were litigated and caused the Supreme Court recently to quash denials of each application to carry a concealed weapon permit.8

The Right to Bear Arms in Rhode Island

The Rhode Island Supreme Court has recognized that the constitutional right to bear firearms, though not absolute, requires that state and municipal licensing authorities who are statutorily charged with reviewing concealed weapon permit applications, may not act indiscriminately.9 The requirements for reviewing concealed weapons applications exceed the general obligations of licensing authorities in more pedestrian matters because the license derives from, and is protected by, its constitutional origin. Unlike most other governmental licenses, an application under the Firearms Act is directly and explicitly sourced in “the constitutional guaranty to keep and bear arms.”10 This requires that the municipal licensing authority exercise particular care in reviewing applications for carry permits.

In order to prevent the unrestrained and indiscriminate exercise of authority and to thwart licensing bodies from devolving into unreviewable star chambers, a review of a weapons application must comport with basic due process protections, Having provided adequate guidance to the licensing bodies, it is within the province of the courts to review the licensing decision here to ensure that the General Assembly’s intent is being effectuated. The 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. As a matter of policy, this Court will not countenance any system of permitting under the Firearms Act that would be committed to the unfettered discretion of an executive agency. Although the court’s authority to review the decision is limited, it is not nonexistent. One does not need to be an expert in American history to understand the fault inherent in a gun-permitting system that would allow a licensing body carte blanche authority to decide who is worthy of carrying a concealed weapon. The constitutional right to bear arms would be...

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