Shotgun News, February 1, 2007

Two Victories: One BIg, One Small

There were two victories—one big, one small—in the last two months of 2006. Let's get the trivial victory out of the way first so that we can bask in the glory of the big victory.

UCLA Law Professor Eugene Volokh, who has done quite a bit of useful work to make the right to keep and bear arms acceptable in academic circles, on December 1^st pointed[1] to a recent decision of the Washington State Supreme Court that ruled that “Citizens have a constitutional right to bear arms under both the federal and state constitutions. U.S. Const. amend. II; Wash. Const. art. I, § 24.”[2]

Now, before you get all excited about this statement—it is a bit more of a throwaway line than it might at first appear, and says nothing more than many previous state supreme courts have acknowledged: that the Second Amendment protects an individual right from infringement by state laws. See, for example, Nunn v. State (Ga. 1846); State v. Chandler (La. 1850); Cockrum v. State (Tex. 1859) and more recently, State v. Nickerson (Mont. 1952). This is good, but when you read the entire opinion, the results are a lot less wonderful than that isolated quote suggests.

This case involves one Matthew Williams, of Kitsap County, charged with violating Washington State's ban on short-barreled shotguns. Shotguns with barrels less than 18” have been regulated since the National Firearms Act of 1934, and many states have their own laws, either tightly regulating or completely banning such weapons. The reason isn't hard to figure out; a short-barreled shotgun combines the concealability of a large handgun with the enormous destructive power of a shotgun. During Prohibition, criminals made extensive use of such weapons, and they had no sporting use. At the time, self-defense was not on the minds of most Americans; the only saving grace that a firearm had was whether it might be used for hunting. Perhaps Washington State's ban is excessive; I would don't see any reason why a short-barreled shotgun should be regulated any more stringently than a handgun. But that's a discussion for another day.

Unlike many other short-barreled shotgun possession cases, at least from the facts presented in the Washington State Supreme Court opinion, Williams does not seem to be a criminal. He came into possession under conditions that seem pretty innocent to me:

“In April 2003, Mr. Williams was helping his grandmother move out of her house and into another residence. While he was cleaning out his grandmother's garage he came across his deceased grandfather's shotgun. Mr. Williams took the shotgun and placed it in the bathroom that was inside the back bedroom -- the bedroom that had been his grandmother's -- because there was a lock on that door and the garage did not have a lock. He then locked the door to the bedroom to prevent others from stumbling upon the gun and hurting themselves.

“The following week, Mr. Williams was leaving his grandmother's house to run some errands when Deputy Sheriff Mark Malloque approached him and inquired about a certain juvenile suspect for whom Malloque was looking. Mr. Williams said that the juvenile was not at his grandmother's house. At Deputy Malloque's request Mr. Williams allowed him to search the house for the juvenile. He unlocked the bedroom door to allow Deputy Malloque to look for the juvenile. Inside the bathroom Malloque saw the shotgun sitting on top of the toilet tank and noticed that the barrel was shorter than allowed by law. When asked about the weapon Williams initially denied knowing anything about the gun. Upon further inquiry, he said the gun came from the garage. Deputy Malloque arrested Mr. Williams.”

The Washington Supreme Court agreed that Williams was not really the type of person at whom this law was aimed, and this was an innocent possession--but this law does not require a criminal intent, nor does it require you to know that you are breaking the law. Any possession is a violation. After a lot of discussion of whether the jury instructions were erroneous or not, the Washington Supreme Court decided the jury instructions were wrong, but that it was a harmless error--and upheld Williams's conviction!

Now, I agree that it would sure make the law a lot more complex if you had to prove that a violator knew that he was breaking the law, or even worse, if you had to prove that a violator had a criminal intent. Still, this is the kind of case that makes me wonder why this prosecution went forward.

It would certainly have been more just if the Washington Supreme Court had struck down the conviction. That, however, would have been the judges substituting their judgment for that of the state legislature (who writes the laws) or of the jury (who decides matters of fact). I hope that the Washington legislature will rewrite the statute to deal with cases such as this—and I also hope that the governor will pardon Mr. Williams for what is clearly an improper conviction.

If you live in Washington State, here's something about which you should write to your state legislators and governor. At least the governor should consider pardoning Mr. Williams, and the state legislature needs to reconsider its short-barreled shotgun law. Perhaps the law needs to exempt any person who unintentionally comes into possession of such a gun—or perhaps the law needs to only severely punish possession of short-barreled shotguns by those ineligible to own firearms.

The other story, however, is a big victory—not just a victory if you squint a lot. If you live in Ohio, you are probably aware that while Ohio has relatively pro-gun laws (including, now, a non-discretionary concealed weapon permit law), many local governments in Ohio have their own much more restrictive gun control laws.

If you live in most other states, you are probably scratching your head at that last sentence, trying to understand it. In most states, there is a pre-emption statute that declares that the state laws regulating the possession or carrying of guns take precedence over all local laws. Local governments may not have laws any stricter than the state; in some cases, local governments may not have laws that are looser than the state.

The constitutional principle is that local governments are creations of the state. Unless a state constitution grants powers to local governments (and a few state constitutions do so), the state legislature is the boss. The pragmatic theory in favor of state pre-emption is that a person driving from Cleveland to Columbus might pass through dozens of local governments, unintentionally breaking dozens of firearms laws. (At a national level, we have the Firearms Owners Protection Act, which allows you, under certain very carefully defined restrictions, to pass through states with very restrictive gun control laws without risk of arrest.)

What started out as a revision of Ohio's concealed weapon permit law—to allow concealed weapon permit holders to carry a loaded handgun in a motor vehicle concealed, rather than in plain sight—was amended into a pre-emption statute[3] that wiped out about 80 local ordinances by at least 20 local governments. Governor Taft—an anti-gun Republicans—vetoed the bill—but both houses of the legislature overrode his veto. In the lower house, 57 Republicans and 14 Democrats voted to override—the first override of a governor's veto in Ohio since 1977.[4] A few days later, the State Senate voted 21-12 to override the veto.[5]

I have not had a chance to fully digest everything contained in this bill—but it would appear that local ordinances, such as Cincinnati's assault weapon ban, upheld by the Ohio Supreme Court in early December,[6] are now dead. And how much better of a Christmas present can Ohio gun owners get?

Clayton E. Cramer is a software engineer and historian. His next book, Armed America: The Remarkable Story of How and Why Guns Became as American as Apple Pie (Nelson Current, 2007), will be available in bookstores in mid-January. His web site is http://www.claytoncramer.com.

[1] Eugene Volokh, "Citizens Have a Constitutional Right To Bear Arms Under Both the Federal and State Constitutions,” Volokh Conspiracy, December 1, 2006, http://volokh.com/archives/archive_2006_11_26-2006_12_02.shtml#1165014698, last accessed December 22, 2006.

[2] State v. Williams, No.76625-8 (Wash. 2006), http://www.courts.wa.gov/opinions/pdf/766258.opn.pdf, last accessed December 22, 2006.

[4] Laura A. Bischoff, “Ohio House overrides Taft's veto of bill to wipe out local gun laws,” Dayton Daily News, December 8, 2006, http://www.daytondailynews.com/n/content/oh/story/news/local/2006/12/07/ddn120806veto.html, last accessed December 22, 2006.

[5] Paul E. Kostyu, “Override: Senate shoots down Taft,” Dover-New Philadelphia [Ohio] Times-Reporter, December 12, 2006, http://www.timesreporter.com/index.php?ID=61904&r=1, last accessed December 22, 2006.

[6] Associated Press, “Ohio Supreme Court upholds Cincinnati gun restriction,” Toledo Blade, December 8, 2006, http://toledoblade.com/apps/pbcs.dll/article?AID=/20061208/NEWS24/61208023, last accessed December 22, 2006.