30 Sep 2016
- By Raquel C. Bagnol - firstname.lastname@example.org - Variety News Staff
THE federal court granted in part and denied in part the motion for summary judgment filed by Paul Murphy, a former U.S. Army Ranger who challenged the constitutionality of some of the provisions of the CNMI Weapons Control Act and the Special Act for Firearms Enforcement or SAFE.
In a 55-page decision issued on Sept. 28, 2016, District Court for the NMI Chief Judge Ramona V. Manglona said the defendants, Department of Public Safety Commissioner Robert A. Guerrero and Finance Secretary Larissa Larson in their official capacities, are permanently enjoined from enforcing the provisions of the Commonwealth Code that have been declared unconstitutional.
Judge Manglona said that when Murphy properly renews his gun license, the CNMI government must return the weapons and ammunition he is entitled to possess consistent with this court decision.
She granted Murphy’s motion and declared unconstitutional the firearm registration requirement, the ban on rifles in calibers larger than .223, the ban on assault weapons, the ban on transporting operable firearms, and the $1,000 excise tax.
But Judge Manglona also granted the CNMI government’s motion with respect to the license requirement, the restrictions on storing firearms in the home and the ban on large-capacity magazines.
Judge Manglona awarded Murphy costs which he must file an accounting for no later than Oct. 11, 2016. But he will not be paid attorney’s fees since he filed his case pro se.
In her ruling, Judge Manglona said SAFE demonstrates the commonwealth’s commitment to reduce gun crimes through regulation. But she said in its zeal to keep the CNMI safe, the government has encroached on certain individual rights provided for by the Covenant and the Second Amendment to the U.S. Constitution.
“The individual right to armed self-defense in case of confrontation, like the other rights in the Second Amendment, cannot be regulated into oblivion,” Judge Manglona said.
She added that overly restrictive laws not only impact would-be criminals but also law-abiding individuals like Murphy.
According to the Judge, the Second Amendment as applied to the CNMI through the Covenant protects the right to armed self-defense in case of confrontation.
She said Murphy has “valiantly pursued all lawful efforts to protect and defend his rights in a community where the voice of the majority can often overpower the equally important rights of the minority.”
Murphy’s “battle for justice started over nine years ago when he first applied for and was denied use and possession of his firearms.”
Murphy’s appeals to the Department of Public Safety, the Attorney General’s Office and the Legislature fell on deaf ears.
He “felt deprived of his rights, discriminated against, and fearful for the security of his person, family and property.”
Judge Manglona said Murphy’s petition to the federal court came at a time when he had exhausted every administrative remedy possible.
While Murphy’s petition was ongoing, the federal court struck down the commonwealth’s ban on handguns in Radich v. Deleon Guerrero. This was followed by the signing of SAFE into law in an attempt to make the regulations as strict as possible.
Murphy challenged the $1,000 excise tax that SAFE imposed on handguns imported to the commonwealth.
He argued that the tax heavily burdens the exercise of the right to purchase a handgun and will fail constitutional scrutiny.
Judge Manglona agrees with Murphy that the $1,000 excise tax places an excessive burden on the exercise of the right of law-abiding citizens to buy handguns for self-defense without the corresponding government interest.
She said that handguns, like most consumer goods, are available at different price points like from $150 to over $2,000. This means if someone buys a handgun worth $150, the excise tax of $1,000 is a 667 percent tax, more than six times higher than the punitive provisions of the commonwealth’s import tax scheme.
She said the court disagrees with the government’s argument that the taxation of firearms in the United States is longstanding and presumably valid.
According to the judge, it is true that the U.S. Congress has taxed firearms since 1919, but Murphy has demonstrated that the commonwealth’s tax imposes more than a “de minimis” or minimal burden on his right.
Judge Manglona said most notably, the tax is specifically directed to handguns and does not apply to rifles or shotguns. She said the government can raise revenues from other means without burdening the Second Amendment.
In a media release, Attorney General Office Edward Manibusan said his office is “pleased to have succeeded on the most important provisions” of SAFE.
“My office will continue to address the outstanding legal issues through legislation,” Manibusan said. He added that draft legislation will provide the maximum protection for the community in a manner consistent with the rights guaranteed by the U.S. Constitution.
Manibusan noted that the federal court’s decision struck down the provision of the law requiring the transportation of unloaded firearms.
“The issue that will no doubt raise the most concern is the court’s holding that it is unconstitutional to completely ban individuals from carrying loaded handguns in public.”
Manibusan said his office has already prepared legislation that will regulate the carrying of firearms in public to guarantee the safety of the community in a manner that is consistent with the United States and commonwealth constitutions.
He said the legislation will be submitted to the Legislature for its consideration.
The other issues raised by the court are addressed in SAFE II, which has already been submitted to the Legislature for action, the AG said.
“We urge the Legislature to act expeditiously to ensure that we have proper and enforceable gun controls in the commonwealth,” Manibusan said.
Assistant Attorney General Charles Brasington, who represented the commonwealth in the suit, said based on the court’s decision, individuals are now able to carry loaded handguns in public as long as they comply with other areas of commonwealth law such as the gun-free zones.
Individuals will now be able to own and possess rifles in calibers greater than .223 and shotguns in gauges greater than .410, he added.
Brasington said individuals will also be able to own semiautomatic rifles with certain attachments in calibers greater than .223.
Murphy said he sought to validate his constitutional rights to keep and bear arms for self-defense. He sued the defendants to enjoin them from enforcing certain provision of SAFE.
Murphy challenged the requirement that he obtain a license and register his weapons; the restrictions on how he may store his weapons at home; the ban on large capacity magazines; the ban on rifles in calibers above .223; the ban on “assault weapons”; the ban on transporting operable firearms; and the $1,000 excise tax imposed on handguns.
Murphy, a resident of the NMI since 2007, served in Iraq and Afghanistan. He filed his initial compliant without counsel on Dec. 24, 2014. He amended his complaint for the fourth time on April 11, 2016 after the federal court struck down the handgun ban in its ruling on March 28, 2016 in Radich v Deleon Guerrero. Two weeks later, the governor and Legislature passed the SAFE Act which overhauled the CNMI’s gun control law and mooted several issues of Murphy’s complaint.
According to Murphy, on July 30, 2007, customs officials under the Department of Finance confiscated his WASR 10/63 rifle and a Glock 19 pistol and several rounds of ammunition. Two months later, he was issued a firearms identification card or license allowing him register and carry only his .223 rifle. The Glock pistol and WASR were not returned to him. He continued to renew his license for six years but his guns were never returned, along with four new rifles that he imported and registered in the CNMI.
To date, none of Murphy’s six rifles have been returned to him and that’s why he challenged certain provisions of SAFE so he could get his weapons back.