State v. Sieyes

Citation168 Wn.2d 276,225 P.3d 995
Decision Date18 February 2010
Docket NumberNo. 82154-2.,82154-2.
CourtUnited States State Supreme Court of Washington
PartiesSTATE of Washington, Respondent, v. Christopher William SIEYES, Appellant.

Thomas E. Weaver, Jr., Attorney at Law, Bremerton, WA, for Appellant.

Todd Layton Dowell, Kitsap County Prosecutors Office, Port Orchard, WA, for Respondent.

Neil Martin Fox, Law Office of Neil Fox, PLLC, Sheryl Gordon McCloud, Law Offices of Sheryl Gordon McCloud, Seattle, WA, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyers.


¶ 1 Law enforcement officers arrested 17-year-old Christopher Sieyes for possessing a loaded .380 semiautomatic handgun. The trial court found Sieyes guilty of unlawful possession of a firearm under RCW 9.41.040(2)(a)(iii),1 which limits circumstances in which children under age 18 can lawfully possess firearms. We must decide whether the Second Amendment to the United States Constitution applies to the states and, if so, determine whether RCW 9.41.040(2)(a)(iii) unconstitutionally infringes on the right to bear arms protected by either the United States or Washington Constitutions. We hold the Second Amendment applies to the states via the Fourteenth Amendment due process clause; however, Sieyes fails to demonstrate on this record that RCW 9.41.040(2)(a)(iii) infringes on his right to bear arms under either constitution.


¶ 2 In April 2007 Kitsap County Deputy Sheriff Jon Vangesen stopped a car for speeding. Vangesen observed front-seat passenger Christopher Sieyes, then 17 years of age, make a "furtive movement" toward the front passenger floorboard. After Sieyes stepped out of the car at Vangesen's instruction, the deputy sheriff found a loaded Bursa .380 semiautomatic handgun under Sieyes's seat. He arrested Sieyes and transported him to a juvenile detention facility. Vangesen later testified the handgun was accessible to Sieyes but not other car passengers.

¶ 3 In October 2007 the trial court found Sieyes guilty of second degree firearms possession because he constructively possessed a handgun and did not meet any exception under RCW 9.41.042 permitting children to possess firearms. The court sentenced Sieyes to 10 days' juvenile detention, 1 year of supervision, 30 hours of community service, and a $100 fine.

¶ 4 Sieyes appealed to the Court of Appeals, Division Two arguing: (1) the evidence was insufficient to convict him, (2) the trial court erred by not concluding his possession was "knowing," and (3) the State should have proved the statutory exceptions allowing children to possess firearms did not apply to Sieyes.2 Sieyes also mentioned RCW 9.41.040(2)(a)(iii) was "an absolute prohibition on firearm possession by minors" and therefore violated his constitutional right to bear arms. Appellant's Suppl. Br. at 10 (Wash. Ct.App. No. 36799-8-II).

¶ 5 In July 2008 the Court of Appeals requested supplemental briefing on the constitutionality of the statute and the effect of District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), which held the Second Amendment confers an individual right to keep and bear arms. We transferred the instant matter to this court pursuant to RAP 4.4 solely on the issue of the statute's constitutionality and the effect of Heller.3


¶ 16 We must determine whether the Second Amendment's right to bear arms applies to the states as part of the process due under the Fourteenth Amendment and, if so, whether RCW 9.41.040(2)(a)(iii) unconstitutionally infringes on that right. We also independently examine whether the statute violates article I, section 24 of our state constitution.

I. The United States Constitution Safeguards an Individual Right To Bear Arms and Applies to the States via the Fourteenth Amendment Due Process Clause

¶ 8 The Second Amendment provides: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." U.S. Const. amend. II. The United States Supreme Court had not clarified whether the Second Amendment's right to keep and bear arms was an individual entitlement until Heller, the Court's "first in-depth examination of the Second Amendment." Heller, 128 S.Ct. at 2821. Heller unquestionably recognized an individual right to bear arms and, in the process, rejected a collective right conditioned on militia service. "There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not." Id. at 2799. We must answer whether the Second Amendment applies to the states—an issue Heller explicitly sidestepped. Id. at 2813 n. 23.

¶ 9 Incorporation is "[t]he process of applying the provisions of the Bill of Rights to the states by interpreting the 14th Amendment's Due Process Clause as encompassing those provisions." Black's Law Dictionary 834 (9th ed.2009). The Fourteenth Amendment bars "any state [from] depriv[ing] any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Under the original constitutional architecture the federal Bill of Rights protected only enumerated rights from federal interference. Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 247-51, 8 L.Ed. 672 (1833) (Marshall, C.J.). Today, however, the Supreme Court has applied nearly the entire Bill of Rights to the states through the due process clause. Duncan v. Louisiana, 391 U.S. 145, 149, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Since 1897 the Supreme Court has progressively concluded most liberties protected by the Bill of Rights are incorporated. See, e.g., Chi., Burlington & Quincy R.R. v. Chicago, 166 U.S. 226, 17 S.Ct. 581, 41 L.Ed. 979 (1897) (holding due process clause prevents states from taking property without just compensation); Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138 (1925) (incorporating First Amendment protection of free speech); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940) (incorporating First Amendment protection of free exercise of religion).4 At this writing incorporation of the Bill of Rights to the states through the Fourteenth Amendment is "virtually" complete. Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 34, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (Scalia, J., concurring).5

¶ 10 The early test for incorporation was whether the right was a "fundamental principle of liberty and justice which adheres in the very idea of free government." Twining v. New Jersey, 211 U.S. 78, 106, 29 S.Ct. 14, 53 L.Ed. 97 (1908), overruled on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Justice Cardozo later narrowed this test to incorporate rights only if it would be "impossible" to maintain "a fair and enlightened system of justice" without them. Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 82 L.Ed. 288 (1937), overruled on other grounds by Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).6 Today's more-permissive standard incorporates rights "fundamental to the American scheme of justice," Duncan, 391 U.S. at 149, 88 S.Ct. 1444, that is, "necessary to an Anglo-American regime of ordered liberty." Id. at 149 n. 14, 88 S.Ct. 1444. Duncan weighs four factors to determine whether a Bill of Rights provision warrants incorporation: (1) the right's historical underpinning; (2) states' initial regard for the right, particularly in state constitutions; (3) recent trends and popular view regarding the right; and (4) purpose served by the right. Id. at 149-58, 88 S.Ct. 1444.

¶ 11 Although the Heller Court did not expressly consider incorporation of the right to bear arms, "that need not stop the rest of us." Sanford Levinson, Comment, The Embarrassing Second Amendment, 99 Yale L.J. 637, 653-54 (1989). Lower courts need not wait for the Supreme Court to apply Duncan; the Constitution is the rule of all courts—both state and federal judiciaries wield power to strike down unconstitutional government acts.7 U.S. Const. art. VI, cl. 2; Nelson Lund, Anticipating Second Amendment Incorporation: The Role of Inferior Courts, 59 SYRACUSE L.REV. 185 (2008). We must ourselves determine whether the Second Amendment is incorporated.

¶ 12 The first Duncan factor demands historical analysis of the right to bear arms, with special attention to fundamental rights "`deeply rooted in this Nation's history and tradition.'" Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (quoting Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality)). Gun ownership is an inexorable birthright of American tradition. "Americans who participated in the Revolution of 1776 and adopted the Bill of Rights held the individual right to have and use arms against tyranny to be fundamental."8 STEPHEN P. HALBROOK, THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT 55 (1984). Moreover gun ownership was a universal legal duty of American colonists. Joyce Lee Malcolm, The Right of the People to Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L.Q. 285, 290-95 (1983).

¶ 13 Heller analyzed the Second Amendment from preratification to the end of the 19th Century, concluding the right to bear arms is an individual right. The Court began by noting the 1689 Declaration of Rights included the right to bear arms. Heller, 128 S.Ct. at 2798. The Court added Blackstone, "`the preeminent authority on English law for the founding generation,'" id. at 2798 (quoting Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240,...

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