State v. Brown

• Decision Date: 14 March 1990
• Citation: 571 A.2d 816
• Parties: STATE of Maine v. Edward BROWN.
• Court: Maine Supreme Court

Page 816

571 A.2d 816

STATE of Maine v. Edward BROWN.

Supreme Judicial Court of Maine.

Argued Jan. 18, 1990.

Decided March 14, 1990.

James E. Tierney, Atty. Gen., Charles K. Leadbetter (orally), Garry L. Greene, Asst. Atty. Gen., Augusta, for the State.

Daniel W. Bates (orally), Herbert H. Bennett and Associates, P.A., Portland, for defendant.

Jeffrey Jones, Bean, Jones & Warren, Scarborough, Robert Dowlut, Washington, D.C., for amici curiae, Nat. Rifle Ass'n of America & Sportsman's Alliance of Me.

Joel C. Martin, Gerald F. Petruccelli, Petruccelli, Cox & Martin, Portland, for amici curiae, Center to Prevent Handgun Violence Legal Action Project, Michael J. Chitwood, Chief of Police of City of Portland, and Me. Chiefs of Police Ass'n.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

McKUSICK, Chief Justice.

In 1987 the people of this state voted to amend article I, section 16, of the Maine Constitution to provide that "[e]very citizen has a right to keep and bear arms; and this right shall never be questioned." By their vote the people struck four words, "for the common defense," from the original provision, with the apparent intent of establishing for every citizen the individual right to bear arms, as opposed to the collective right to bear arms for the common defense. ¹ The issue on this appeal is the constitutionality, after the 1987 amendment, of the criminal statute prohibiting the possession of a firearm by a convicted felon. That issue raises two questions: 1) Did the amendment create an absolute right to keep and bear arms, and 2) if it did not, does the possession-by-a-felon statute exceed the permissible bounds of reasonable regulation under the State's constitutional police power. We answer both questions in the negative.

The State appeals from an order entered by the Superior Court (Cumberland County, Perkins, J.) dismissing Count II of a two-count 1988 indictment charging defendant Edward Brown with possession of a firearm by a felon, 15 M.R.S.A. § 393(1) (Class C) (1980). ² Defendant pleaded not guilty to the possession-by-a-felon charge and moved for its dismissal. On his motion defendant argued that 15 M.R.S.A. § 393(1) is unconstitutional as applied to him because under section 16, as amended, his right to keep and bear arms is absolute and cannot be abridged by reason of his having been previously convicted of what he calls a "nonviolent" felony, operating a motor vehicle at a time when he as an habitual motor vehicle offender had had his license revoked. ³ Although the court ruled that the citizen's right under amended section 16 is not absolute but rather is subject to reasonable police power regulation, it concluded that there is no rational relationship between the possession of a firearm by a person previously convicted of a "nonviolent" felony and a threat to public safety. It therefore held section 393(1) unconstitutional as applied to defendant and dismissed Count II. Only that dismissal is now before us. ⁴

For the State to prevail on its appeal from that dismissal, it must persuade us both that, contrary to defendant's contention, the citizen's right to keep and bear arms under amended section 16 is not absolute and that the possession-by-a-felon statute represents a reasonable exercise of the State's constitutional police power. The State does persuade us on both scores, and therefore we vacate the Superior Court's dismissal of the possession-by-a-felon charge against defendant.

Prior to the 1987 amendment the Maine Constitution afforded no absolute right to keep and bear arms and we now hold that no absolute right was created by the amendment. Both prior to and after its amendment, section 16 provided that the right to keep and bear arms "shall never be questioned"; the amendment to section 16 merely deleted the words "for the common defense." Before those four words were deleted, the section 16 right was not absolute, as declared by our prior case law, and the evident purpose of the amendment was merely to transform a collective right to bear arms into an individual right and nothing more.

The procedure for amending the Maine Constitution is prescribed in article X, section 4, with additional implementing provisions provided by statute, 1 M.R.S.A. §§ 351-353 (1989). Pursuant to section 353 the Attorney General, prior to submission of the question to the voters, "shall prepare a brief explanatory statement which shall fairly describe the intent and content of each constitutional resolution or statewide referendum that may be presented to the people." The Attorney General's statement must explain what a yes vote favors and what a no vote opposes. Id. Further, the Attorney General must have his explanation published twice in each daily newspaper in the state, the first time between 45 and 30 days prior to the vote, the second between 10 and 7 days prior to the same. Id.

In 1987 the Attorney General did prepare and publish the required explanation of the proposed amendment to section 16. The explanation provided:

The proposal would amend the Maine Constitution to establish a new personal right to keep and carry weapons, in place of the existing right to bear arms for the common defense. In proposing the amendment, several legislators formally expressed their understanding and intention that the proposed personal right, like the existing collective right, would be subject to reasonable limitation by legislation enacted at the state or local level. The Attorney General has issued an opinion to the same effect.

The amendment would repeal the collective right of Maine citizens to keep and carry weapons as may be necessary to participate in the defense of the State or community through a broadly based, organized militia. The existing provision, as interpreted by the Maine Supreme Judicial Court in State v. Friel, 508 A.2d 123 (Me.1986), establishes no constitutional right to bear arms except this collective right of defense.

If approved, the amendment would take effect on the date of the Governor's proclamation of the vote.

A "YES" vote favors establishing a personal constitutional right to keep and carry weapons, subject to reasonable regulation.

A "NO" vote opposes establishment of such a constitutional right.

(Emphasis added) By the legislative resolution proposing the amendment of section 16, the question appearing on the ballot in November 1987 read, "Shall the Constitution of Maine be amended to clarify the rights of citizens to keep and bear arms?" Resolves 1987, ch. 2. That question standing by itself was at best uninformative ⁵ and required the voter to look elsewhere to learn how the amendment would "clarify" the rights of citizens to keep and bear arms. That necessary information was provided by the statutorily required statement prepared by the Attorney General. After he had discharged his obligations of explanation and publication, "[t]he electorate ... must be held to have had full knowledge of the terms of the amendment. In voting 'yes' on a question so submitted an elector does not vote upon or adopt the question as part of the amendment, but thereby merely expresses his assent to the amendment as proposed." Opinion of the Justices, 125 Me. 529, 532, 133 A. 265, 266 (1926); see also Fellows v. Eastman, 126 Me. 147, 150, 136 A. 810, 811 (1927). In the absence of a challenge to the Attorney General's official explanation of the amendment, we assume that the voters intended to adopt the constitutional amendment on the terms in which it was presented to them, including the interpretation that the individual right created by the amendment, like its predecessor collective right, is not absolute but rather remains subject to reasonable regulation by the legislature.

Our holding that amended section 16 does not vest every citizen with an absolute right to possess firearms also finds support in a common sense view of the context in which the voters of Maine adopted the 1987 amendment. Plainly, the people of Maine who voted for the amendment never intended that an inmate at Maine State Prison or a patient at a mental hospital would have an absolute right to possess a firearm. Once it is apparent, as common sense requires it to be, that amended section 16 does not bar some reasonable regulation of the constitutional right to possess firearms, the only remaining question becomes what are the outer bounds of reasonableness for the regulation of that non-absolute right. All of the case authority from other states likewise rejects the notion that the constitutional right to keep and bear arms is absolute. See, e.g., People v. Smelter, 175 Mich.App. 153, 437 N.W.2d 341 (1989); State v. Smoot, 97 Or.App. 255, 775 P.2d 344 (1989); Gardner v. Jenkins, 116 Pa.Commw.Ct. 107, 541 A.2d 406, alloc. denied, 520 Pa. 620, 554 A.2d 511 (1988); City of Princeton v. Buckner, 377 S.E.2d 139 (W.Va.1988); State v. Hamlin, 497 So.2d 1369 (La.1986); State v. Sabala, 44 Wash.App. 444, 723 P.2d 5 (1986); State v. Mak, 105 Wash.2d 692, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). See also State v. Friel, 508 A.2d 123, 126 nn. 4 & 5 (Me.1986), cert. denied, 479 U.S. 843, 107 S.Ct. 156, 93 L.Ed.2d 96 (1986).

In his brief and at oral argument defendant's only contention has been that the words of section 16 are unambiguous and unqualified; that in construing this constitutional provision we need not, and indeed must not, look beyond the bare words. Long ago Justice Holmes urged us to reject such a myopic approach to constitutional construction when he wrote:

[T]he provisions of the Constitution are not mathematical formulas having their essence in their form.... Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and their line of growth.

Gompers v. United States, 233 U.S. 604, 610, 34 S.Ct. 693, 695, 58 L.Ed. 1115 (191...