March 6, 2017
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The Right to Bear Arms in Rhode Island

David J. Strachman, Esq.

McIntyre Tate LLP


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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.Similarly, in Rhode Island, our. Constitution has protected the right to keep and bear arms since 1842,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.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 civilrights 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.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.”7Nonetheless, it repeated the very same mistakes throughout the next year in at least a half dozencases, four of which were litigated and caused the Supreme Court recently to quash denials ofeach application to carry a concealed weaponpermit.8

The Right to Bear Arms in Rhode Island

The Rhode Island Supreme Court has recognized that the constitutional right to bear fire-arms, 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 illusory, of course, if it could be abrogated entirely on the basis of an unreviewable, unrestricted, licensing scheme. Such review is available through acommon-law writ of certiorari.11

The Rhode Island Firearms Act

The Firearms Act contains two pathsto obtaining a license to carry a concealed weapon. The municipal licensing statute is a “mandatory” provision requiring that “an applicant who meets the criteria set forth in R.I. Gen. Laws §11-47-11 is entitled to a gun permit... the licensing authority shall issue a permit to a suitable person who meets the requirements set forth in the statute.”12 The mandatory nature of the R.I. Gen. Laws§ 11-47-11 permit is distinguished from the Attorney General’s “discretionary”permit derived from R.I. Gen. Laws §11-47-18, which contains “may issue” language and “confers broads discretionupon” his office “to issue or decline toissue gun permits.”13 In R.I. Gen. Laws § 11-47-11’s “shall issue” provisions, the General Assembly has determined that once the formal requirements are met (i.e.age, citizenship, etc.), an applicant cannot be denied a license by a municipal licensing authority except upon a finding that he is “unsuitable as a matter of law, including convicted felons, habitual drunkards, mental incompetents, illegal aliens, and anyone who has failed to meet the minimum firing qualification score.”14, 15

In interpreting the Firearms Act, the Supreme Court clarified that these sections create “two separate and distinct”statutory mechanisms, “Because the Fire-arms Act provides for both discretionaryand mandatory licensing to qualified applicants, the constitutional guarantee to keep and bear arms is fulfilled.”16

Procedural Issues

When reviewing a concealed weapon application, a municipal licensing authority must carry out the General Assembly’s mandate to, determine the existence or nonexistence of the facts upon which the enactment is intended to operate, State v. Conragan, supr a 58 R.I. at 322, 192A. at 757, or as Chief Justice Marshall said almost two centuries ago, to permit them ‘to fill up the details.’Wayman v. Southard, 23 U.S. 1, 19, 6 L.Ed. 253, 263 (1825).17 This delegated fact finding function must be purposeful and “adhere to mini-mum procedural requirements.”18 Applicants are “entitled to know the evidence upon which the department based itsdecision and the rationale for the denial.”19 These procedural safeguards ensure that the licensing authority does not become a “master of puppets.”20 The Court has previously discussedthe importance of proper adjudication of applications to carry concealed weapons stating, Because anyone who meets the conditions of § 11-47-11 is entitled to a gun permit, this mandatory requirement supplies the necessary safeguards to the right to bear arms in this state and vindicates the rights set forth inart. 1, sec. 22, of the Rhode Island Constitution.21 Often, the municipal authority reviewing a concealed weapon application omits making a factual determination. This error is fatal, as a “decision that fails toinclude findings of fact required by statute cannot be upheld.”22 Similarly, the failure to cite the applicable legal standard constitutes grounds for reversal.23 Municipalities reviewing license applications must apply “legal principles insuch a manner that a judicial body might review a decision with a reasonable understanding of the manner in which evidentiary conflicts have been resolved and the provisions of the” relevant legal provisions “applied.”24 A decision of “any municipal board or agency that acts in aquasi-judicial capacity” cannot be evaluated as “unless these minimal requirements are satisfied, [otherwise] judicial review of a board’s work is impossible.”25 Accordingly, the Supreme Court granted certiorari when Bristol’s police chief issued a brief, vague and unsupported denial of an application to carry a concealed weapon which stated “only that he was denying petitioner’s application for the latter’s failure  to meet the criteria in applicable statute,”He did not discuss those criteria, nor did he make the necessary findings to support his determination that petitioner had failed to meet them. This Court has stated that its task when deciding a case on certiorari is “to discern whether any legally competent evidence supports the lower tribunal’s decision and whether the decision[-]maker committed any reversible errors of law in the matter under review.”Pastore v. Samson, 900 A.2d 1067,1073 (R.I.2006) (quoting Cullen v.Town Council of Lincoln, 850 A.2d900, 903, R.I.2004). However, the absence of findings to support the decision under review renders this task impossible.26  In the context of a discretionary gun permit application, the Supreme Court has determined that an adequate record must be made in order to permit judicial review, To review a decision on certiorari, however, certain procedural steps must be employed to allow a meaningful review by this Court. We hold that the Attorney General must adhere to minimum procedural requirements when rejecting an application filed under § 11-47-18. A rejected applicant is entitled to know the evidence upon which the department based its decision and the rationale for the denial. Armed with this information, an aggrieved applicant can petition this Court for a writ of certiorari so that we may review the department’s decision for error of law. In conducting such a review, this Court will not weigh the evidence nor substitute its judgment for that of the fact finder...Rather, we will inspect the record to determine whether the department’s findings are supported by any legally competent evidence.27 Thus the Court has indicated that in firearms licensing matters it will follow the jurisprudence regarding more pedestrian review of municipal licensing decisions which typically provides, Under no circumstances could the terse denial of petitioners’ application, without findings of fact, application oflegal principles, or indeed, any reasonably decipherable statement of the board’s conclusion, meet the standards that we have previously laid down. This decision is in effect a nullity and could not form the basis for judicial review either by the Superior Court or by this court.28  Thus, the Court most recently stated, A local licensing authority need not write a decision rivaling War and Peace in length, but its decision must still address the salient reasoning for the denial of a license. In doing so,the necessary findings to support the determination must be made, and“[t]hose findings must, of course, be factual rather than conclusional.”29 Of particular assistance to Rhode Islanders, is the Supreme Court’s willingness to exercise continuing jurisdiction over municipalities once it has quashed a municipality’s denial of an application. For instance, in Gendreau, the Courtgranted certiorari and specifically directed a new decision to be issued within a specific period of time. Importantly, the Court retained jurisdiction over the matter and ruled that the applicant could petition again if dissatisfied with the result of the remand without even filing an additional filing fee.30  

Additional subjects for future litigation

While, as indicated above, the basic permitting issues have been addressed by the Supreme Court, many additional concerns have never been decided by anycourt. For example, some towns seek to impose mental health requirements that go far beyond the statutory criteria, even to the extent of mandating that applicants pass a police stress test before they will consider an application for a concealed weapons permit. Other municipalities demand that applicants execute mental health releases allowing the town access to decades of confidential information. One town even demands access to an applicant’s financial records! A charged issue without a definitive ruling from the Supreme Court is the exact nature and status of a firearms license. For instance, under R.I. Gen.Laws § 11-47-12, a license is valid for four years unless revoked. Frequently,the basis for granting a license by the Attorney General’s office or a municipality is the applicant’s employment as security professional. If the applicant terminates his employment, the AttorneyGeneral takes the position that a license which was explicitly conditioned on employment is automatically suspended. Also, whether the Attorney General even has the right to issue lesser or restrictive licenses has never been determined. The issue so far has only been litigated in the context of a criminal case wherein the Superior Court found that a holder of a suspended license is not “unlicensed”for criminal purposes.31 Additionally, some cities and townshave enacted their own ordinances concerning the concealed weapons permitting process, including adding new requirements such a specific training, that exceedthe statutory authority in the FirearmsAct.32 While as yet not challenged, municipal legislation on this issue violates thestate preemption contained in R.I. Gen.Laws § 11-47-58.

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1 U.S. v. Miller, 307 U.S. 174 (1939) (upholdingban of private ownership of certain guns).
2 Matzko, “The obstruction of Rhode Island’sclearly expressed constitutional right to bear arms:“Mosby v. Devine,” Roger Williams Univ. L.R.(Spring 2006). Arguably, the right to bear arms inRhode Island has an even earlier source, the 1790Bill of Rights which, however, explicitly couchedthe right in a military context.
3 Mosby v. Devine, 851 A.2d 1031, 1038 (R.I.2004).
4 Archer v. McGarry/Smithfield, 2002 WL32182164 (R.I. Super. 2002) (police chief’s six year“policy” was to never issue licenses). Some townsvirtually taunt applicants and will only grant anapplication after an applicant has filed suit seekinga writ of mandamus.
5 Gillette v. Esserman, 2009 WL 9409621 (R.I.Layout 1


Super. 2009)(transcript June 8. 2009).
6 Id.
7 Gadomski v. Tavares, 113 A.3d 387, 393 (R.I.2014).
8 See, i.e., de La Cruz v. Parella, 2016 WL6395934 (R.I. 2016).
9 Mosby, 851 A.2d 1031, Gendreau v. Canario,2013 WL 6230071 (R.I. 2013).
10 Mosby, 851 A.2d at 1048.
11 Id. at 1050-1051.
12 Id.
13 Id.
14 Id. at 1048.
15 But see Canario v. Gendreau, 2016 WL2946169 (D.R.I. 2016)(upholding Bristol’s policyrequiring a show of “need”).
16 Id. at 1047.
17 State v. Storms, 112 R.I. 121, 127, 308 A.2d463, 466 (1973).
18 Mosby, 851 A.2d at 1051.
19 Id.
20 Id. at 1050. See also Gendreau v. Canario,2013 WL 6230071 (R.I. 2012).
21 Id, 851 A.2d at 1048.
22 Sakonnet Rogers, Inc. v. Coastal ResourcesManagement Council, 536 A.2d 893, 897 (R.I.1988).
23 Cullen v. Town Council of Town of Lincoln,850 A.2d 900, 905 (R.I. 2004)(“The second, andmore problematic, deficiency in the council’s deci-sion is its failure to cite any provision of the town’sordinances, or any other legal authority for thatmatter, upon which it based its rejection.”).
24 Thorpe v. Zoning Bd. of Review of Town ofNorth Kingstown, 492 A.2d 1236, 1237 (R.I.1985).
25 Id.
26 Gendreau v. Canario, 2013 WL 6230071 (R.I.2013) (remanding case to town but retaining juris-diction).
27 Mosby, 851 A.2d at 1050-1051.
28 Zammarelli v. Beattie, 459 A.2d 951, 953 (R.I.1983).
29 Gadomski, 113 A.3d 387 (R.I. 2014).
30 Gendreau,2013WL623071,seealsoGadomski,113 A.3d 387.
31 State v. Capwell, K2-02-753.
32 For example, in 2015, the Warwick City Councilenacted a detailed licensing regime in OrdinanceSec. 6-72. O






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