N.H. decision clouds right to bear arms


CONCORD, N.H. (AP) – The state Supreme Court ruled Wednesday that the state Constitution’s right to bear arms can be restricted and regulated.

“As numerous courts in other states have recognized with respect to their state constitutional right to bear arms … the New Hampshire state constitutional right to bear arms ‘is not absolute and may be subject to restriction and regulation’,” the court ruled.

The court ruled in the case of Edward Bleiler of Dover who sued after the police chief revoked his concealed weapons permit. Bleiler’s lawyer said they may appeal to the U.S. Supreme Court.

The case arose from an incident at Dover City Hall in March 2006, when Bleiler displayed a loaded handgun in the city attorney’s office. Bleiler did not threaten anyone, and said he used the gun as a prop to tell a story.

Then-Police Chief William Fenniman revoked Bleiler’s concealed weapons permit, saying the incident showed unsafe and inappropriate handling of the weapon and citing other examples of reckless behavior.

Dover District Court upheld the revocation, and Bleiler appealed.

His lawyer, Richard Lehmann, argued Bleiler’s state and federal constitutional rights were violated and that state law allowing municipalities to revoke concealed weapons permits for “just cause” is too vague and allows for arbitrary enforcement.

The court rejected his arguments. Though bearing arms is a fundamental right, the state still can put reasonable limits on it, the court said. The concealed weapons law “does not prohibit carrying weapons; it merely regulates the manner of carrying them,” the court said.

“The statute has a reasonable purpose, it protects the public by preventing an individual from having on hand a (loaded) deadly weapon of which the public is unaware,” the court said.

The court rejected Bleiler’s assertion the statute was too vague. Someone of “ordinary intelligence” would know what conduct could lead to a revocation, the court said.

People don’t need a permit to own a firearm in New Hampshire, but one is required if it is going to be concealed.

Lehmann said he is “a little bit surprised and very disappointed” by the ruling.

“There’s a federal issue involved because it involves the Second Amendment of the U.S. Constitution,” Lehmann said.

However, New Hampshire’s court noted the federal Constitution offers Bleiler no greater protection than the state constitution under the same circumstance. The court said it reached the conclusion under the federal Constitution.

“(Bleiler), who knew the proper procedure for handling a loaded weapon and failed to follow it, had a reasonable opportunity to know that using a loaded weapon in a public place to tell a story about organized crime threats was not a proper purpose and could result in the revocation of his license to carry a concealed weapon,” the court said.

Lehmann also said the ruling goes against a 30-year-old U.S. Supreme Court ruling directing governments to apply strict scrutiny when regulating rights expressed in the constitution. Strict scrutiny is the highest standard of review.

“The hard thing to understand about the decision, is how they decide which constitutional rights they apply strict scrutiny to, and which constitutional rights they give governments a pass on,” Lehmann said.

The court said strict scrutiny need not be applied in all cases involving fundamental rights. For example, property ownership rights are fundamental, but zoning ordinances regulating them do not receive a strict scrutiny analysis, the court said.

Like the gun regulations, zoning ordinances balance the property owners’ rights against those of the public good.

“Strict scrutiny, with its presumption of unconstitutionality, is a standard of review traditionally used in areas where courts deem any burdensome legislation to be ‘immediately suspect,”‘ the court said. “Gun control legislation, by contrast, with its legislative motivation of public safety … is not inherently suspicious.”

Information from: Foster’s Daily Democrat, http://www.fosters.com

AP-ES-07-18-07 1510EDT