The Judiciary Committee will continue work on LD 345 today, an act to permanently shield the identity of concealed handgun permit holders under Maine's Freedom of Access Act. The public hearing on that legislation was March 19, and many of the assertions and questions raised during that hearing have not been answered.
We answer them here:
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Testimony: Under the Constitution, the right to carry open or concealed firearms shall not be infringed and this right shall never be questioned, citing Murdock v Pennsylvania (U.S. Supreme Court, 1943).
Fact: Murdock did not consider Second Amendment arguments, but ruled that an ordinance requiring religious solicitors to purchase a license was an unconstitutional tax on religious freedom.
There are two recent Supreme Court rulings that are on point, though.
In District of Columbia v Heller in 2008 and again in McDonald v Chicago in 2010, the court upheld Americans’ Second Amendment provisions to own firearms, with limitations. One of the limitations recognized by the court authorizes states to regulate permits to conceal carry. Regulating concealed carry is permitted under the Constitution.
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Testimony: Victims of domestic violence are in danger if their abusers know where they live.
Fact: Domestic violence victims have protection under the Address Confidentiality Program. That program allows victims to domestic violence to apply to the Secretary of State’s Office for a “designated address assigned by the Secretary,” and that address is then to be used on all records maintained by local and state agencies, which could include concealed carry permits. Nonetheless, in her written testimony on LD 345, Julia Colpitts of the Maine Coalition to End Domestic Violence urged Judiciary to craft a special shield, an amendment that Rep. Charlie Priest, D-Brunswick, proposed on March 21, matching the provisions now available to these victims through the existing Address Confidentiality Program.
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Testimony: Permit holders who hold concealed carry permits were never informed the permit is a public record.
Fact: All concealed carry applicants are notified when they sign their applications that the resulting permit is a public record, and are required to initial that notification.
The “State of Maine Application for Permit to Carry Concealed Handgun” carries a disclaimer at the bottom of Page 9 that the information is considered confidential only to the extent provided by 25 M.R.S.A. §2006. That statute requires the issuing authority to make a record of the information contained in the permit and that record “must be available for public inspection.” (LD 576 created a temporary shield that expires April 30.)
The disclaimer appears in all capital letters just above the applicant’s signature line to authorize the release of information.
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Testimony: There are currently 483 exemptions from FOAA, so what’s one more?
Fact: The exact number of exemptions in FOAA is not clear because they are spread throughout statute, but the most current list of known exemptions (as of November 2012) identifies only one state-issued permit that is confidential under FOAA: the permit for a nutrient management plan for livestock operations required by the Department of Agriculture because that plan is considered a trade secret. [7 M.R.S.A. §4205(2)]
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Testimony: There should be an investigation to see where information released previously wound up and for what reason.
Fact: State Police and other issuing authorities keep some records of where information released winds up and, in recent years, for example, it wound up in the hands of Downeast Energy as a company-wide safety measure after one of their employees was shot and killed on the job, it wound up in the hands of representatives of Gov. LePage’s office after then-Rep. Frederick Wintle’s handgun-related arrest, and in the hands of the marketing firms of Catalist LLC and emerges.com which build and sell database information to politicians, lobbyists, nonprofits and commercial companies.
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Testimony: The fear of personal information being released “led to emergency bipartisan legislation to be enacted on a temporary basis that protects these individuals. This measure received broad support on both sides of the aisle.”
Fact: While there was certainly bipartisan support for LD 576, the overwhelming testimony on the floor of both the House and Senate argued in favor of establishing the temporary ban as a “cooling off period” requested by Gov. LePage. There was no public hearing on the bill and no deep floor debate on the merits of the FOAA shield.
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Testimony: FOAA was implemented so that citizens could keep government “honest.”
Fact: Government regulates the application process, review process, cost and enforcement of permits and licenses of all description, and citizen access to that information keeps the governmental regulatory process “honest.” FOAA is about, as one person testified, the transparency of our democratically elected government. And, “the public has an absolute right to know who is holding a special state-issued permit and what the holders are permitted to do.”
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Testimony: “We don’t need the media to supervise and publish lists of potential dangerous persons owning or possessing a firearms permit. These permit applications are investigated by bona fide police personnel doing the background checks on each application.”
Fact: A 2011 New York Times investigation found that, of the 240,000 permits issued in North Carolina — a shall-issue state that requires public access to permits — 2,400 of the permit holders were convicted of felonies and misdemeanors, including at least 10 who committed murder or manslaughter. More than 200 of permit holders were also convicted of gun- or weapon-related felonies or misdemeanors, including “roughly 60 who committed weapon-related assaults,” according to the Times. That investigation concluded the high rate of permit holders who had criminal records was a result of lax policing of the permit process. In that case, the media uncovered government wrongdoing.
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Testimony: The Journal News published the names, addresses and a detailed map of concealed permit holders in two New York counties … in the wake of the Sandy Hook school shooting. … The action was obviously a provocative attempt by a media outlet to label law-abiding concealed permit holders with a scarlet letter.
Fact: The Journal News published the names and addresses on an online-only interactive map of permit holders in New York. At the time, the newspaper’s publisher said the community “should know where gun permit holders in their community were, in part to give parents an opportunity make careful decisions about their children’s safety.” The newspaper took down the permit data after 27 days, but maintains a map and its associated red locator dots online to convey “a powerful message: gun permit holders are everywhere in our counties,” according to Publisher Janet Hasson.
Contrary to testimony offered by multiple people, no photographs of listed homes were ever published.
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Testimony: The Journal News map led criminals to burglarize homes at two addresses contained on the map.
Fact: Police in White Plains investigated an early theory that the map and the burglary in that town were connected, but the investigation has since concluded they were not, according to the police commissioner's office. Police in New City believed from the start that the burglary was random and had no connection to the online map.
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Testimony: In light of the Journal News actions, New York passed legislation protecting concealed carry permit identification.
Fact: New York maintains public access to all permits, but recently adopted a provision allowing pistol owners to ask that their names be withheld from the public record if the permit holder provides a reason why their life or safety may be endangered or how they may be subjected to unwarranted harassment by disclosure of information. That is the same protection requested of domestic violence advocates and currently proposed by Rep. Priest.
Judith Meyer is a law-abiding gun owner and a managing editor at the Sun Journal. She is a member of the Right to Know Advisory Committee, and vice president of the Maine Freedom of Information Coalition.