WA high court says 2A applies to states
by Dave Workman
Senior Editor
In a stunning decision that held the rights of a 17-year-old are not violated by a state gun regulation preventing minors from possessing handguns, the Washington state Supreme Court ruled that “the Second Amendment applies to the states via the Fourteenth Amendment due process clause.”
The majority opinion, written by Justice Richard B. Sanders and issued in mid-February, acknowledges that it does not wait for a US Supreme Court ruling on incorporation. The highest US court is taking up that issue right now in McDonald v. Chicago, for which oral arguments were scheduled for Mar. 2, the day after this issue went to press.
The McDonald case was filed by the Second Amendment Foundation, Illinois State Rifle Association and is named for Otis McDonald, who is a Chicago resident and one of four individual plaintiffs in the case. The National Rifle Association successfully petitioned the high court for time to join the oral arguments, even though its case, NRA v. Chicago, was not accepted for review by the court.
The Washington state court’s ruling is not binding on other states, and essentially has no weight of law outside the Evergreen State, and perhaps little inside of it, but it does signal where the state high court might come down on other gun rights questions, such as Seattle’s challenge of state preemption. That challenge was derailed last month when a King County Superior Court judge ruled that Seattle’s ban on guns in city parks was illegal under the state’s preemption law, as reported in the last issue of Gun Week.
Five other justices, including Chief Justice Barbara Madsen, joined Sanders in the majority ruling. Justice James Johnson wrote a concurring and dissenting opinion, which supported the incorporation notion, but criticized the majority for not determining that strict scrutiny applies to the constitutional right to keep and bear arms questions.
The case involves a teenager who was riding in a car that was stopped by a Kitsap County sheriff’s deputy in April 2007. Christopher Sieyes was a passenger and he was observed by Deputy Jon Vangesen making a “furtive movement” which may have been the teen’s attempt to hide a .380-caliber Bersa semi-automatic pistol under the passenger seat. That’s where the lawman found the gun, after which he placed Sieyes under arrest.
Sieyes was found guilty in October 2007 of second degree illegal possession of a firearm under a state statute because he had constrictive possession of the gun. The teen appealed, arguing that his conviction was based on insufficient evidence and that it had not been proven that his possession of the gun was “knowing.” He also contended that the state prohibition on firearms possession by a minor violated his constitutional right to bear arms, and that the state should have proven that statutory exceptions to the gun law that allow possession by minors did not apply to him.
In July 2008, the State Court of Appeals requested a supplemental briefing on the constitutionality of the statute because of the recent Heller ruling that affirms the Second Amendment protects an individual right to keep and bear arms.
In handing down its ruling, Washington’s high court majority avoided setting a standard of review, which irritated Johnson, who wrote in his separate opinion, “In declining to apply strict scrutiny and instead ‘look[ing] to the Second Amendment’s original meaning, the traditional understanding of the right, and the burden imposed on children by upholding the statute,’ the majority disregards our long-standing national tradition allowing younger citizens to bear arms and the level of protection that we customarily accord to fundamental rights. I therefore write separately to emphasize that strict scrutiny is the appropriate standard of review for Second Amendment challenges to statutes restricting these important constitutional rights.
“This conclusion is inescapable,” Johnson continued, “when one considers the fundamental nature of the right to keep and bear arms throughout our nation’s history and our legacy of extending that right to young people. Youth have been permitted and even on occasion requested to bear arms since our country’s nascent days and throughout the history of our state. The Journals of the Continental Congress, for example, identified ‘healthy, sound and able bodied men . . . not under sixteen years of age’ as the preferred category of men from which the officers of the Continental army were to recruit their soldiers.
“What were these teenagers fighting for,” Johnson asked rhetorically. “I remind the court that, among other things, they fought for the right to bear arms…a right that unquestionably extended in its fullest form to those adolescents who took up arms to defend it. As the majority points out, gun rights are ‘an inexorable birthright of American tradition . . . held . . . to be fundamental’ by those who participated in the Revolutionary War.”
However, Sanders’ majority opinion contained some significant points, not the least of which was the observation that the court had “determined the Second Amendment protects individual rights against state interference.”
But the majority opinion, according to the Kitsap Sun, “reserved judgment on whether state law restricting youths from possessing firearms violates” the Second Amendment. In his majority opinion, Sanders wrote, “In sum, appellant offers no convincing authority supporting his argument that Washington’s limit on childhood firearm possession violates the United States or Washington Constitutions. Accordingly we keep our powder dry on this issue for another day.”
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