THE RIGHT TO KEEP AND BEAR ARMS UNDER MAINE’S CONSTITUTION.

Once again, in the wake of the recent mass-murder in Newtown Connecticut, guns and gun control are hot topics. There are those who advocate that there must be no controls on the types of firearms individuals can possess; there are those who advocate the banning of semi-automatic weapons, or at least all guns that look like military weapons (so-called “assault weapons”) and high capacity magazines; and there are those who advocate repeal of the second amendment to the U.S. Constitution and the outright disarmament of the citizenry. Nearly all discussions about gun control revolve around the role of the second amendment to the United States Constitution. It’s worth recognizing that Maine has its own constitutional protection for the right of individual citizens to keep and bear firearms, and that the wording of Maine’s constitutional provision could hardly make it clearer that the right belongs, not to the collective, but to “every citizen.”

Before its amendment, in 1987, Article 1, Section 16, of the Maine Constitution read as follows: “Every citizen has a right to keep and bear arms for the common defense; and this right shall never be questioned.” Then along came the case of State v. Dennis Friel, 508 A.2d 123 (Me. 1986). Friel was indicted for possession of a firearm by a felon. He sought dismissal on grounds that Maine’s felon-in-possession statute was unconstitutional, under Article 1, section 16, of the Maine Constitution and the second amendment to the U.S. Constitution. Maine’s Supreme Court (the Law Court) rejected Friel’s claim and upheld the statute. The Court’s reasoning was a shock and a wake-up call for a lot of people. The Law Court first pointed to the purpose for which Article 1, section 16, stated that every citizen’s right to keep and bear arms was secured: “the common defense.” The Court held that a citizen’s right to keep and bear arms was limited by this purpose and that the Maine Legislature had reasonably determined that the common defense would not be served by allowing felons to possess firearms. Because the felon-in-possession statute did not infringe on the purpose of Article 1, section 16, the Court held, the statute did not violate the Maine Constitution. The Court also rejected Friel’s second amendment claim, stating that the second amendment was simply inapplicable to the case.

The Friel decision caused an uproar. To that point, most Maine gun owners had no inkling that Maine courts might approve governmental action to prevent them from keeping or bearing firearms for any purpose other than “the common defense.” And, when Friel was decided, it remained unresolved whether the second amendment to the U.S. Constitution would be interpreted by the U.S. Supreme Court as a collective or an individual right. Evidently concerned over the prospect that whatever a government can do to its people it eventually will do to its people, the people of Maine very quickly voted, in 1987, to enact an amendment to Article 1, section 16. The amendment changed the constitutional provision to read as follows: “Every citizen has a right to keep and bear arms; and this right shall never be questioned.”

In 1990, Edward Brown, a felon whose status was based on a conviction of operating a motor vehicle after habitual offender revocation, sought to have his indictment for possession of a firearm by a felon dismissed as unconstitutional under the recently amended Article 1, section 16. In State v. Brown, 571 A.2d 816 (Me. 1990), the Law Court again upheld the constitutionality of the felon-in-possession statute, on grounds that amended Article 1, section 16, does not prevent reasonable regulation of the constitutional right that it protects, and that it is reasonable to ban felons from possessing firearms given the disregard for law that their status as felons demonstrates. The U.S. Supreme Court’s District of Columbia v. Heller decision says much the same thing about the second amendment to the U.S. Constitution. Both the U.S. Supreme Court and Maine’s Law Court have declared that individuals have a personal right to keep and bear arms, protected under the U.S. and Maine Constitutions respectively, but that right is subject to reasonable regulation. The political battle will be fought, mostly in Washington D.C., over what, if any, regulations might be “reasonable.” The battle will surely be rancorous. As for political battles that may be fought in Maine over firearms regulations, there can be no serious argument as to whether Article 1, section 16, of the Maine Constitution is intended to protect the right of individuals to keep and bear arms, not limited to the purpose of collective defense.



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