Man challenging constitutionality of gun permit revocation

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I'm not certain how far this case will make it's way up the judicial ladder, but it looks like a nice solid argument for overturning (and hopefully eliminating), the aberration of MA firearms licensing laws...

WORCESTER — Citing a recent U.S. Supreme Court decision, a Shrewsbury man is challenging the constitutionality of a state law under which his license to carry a firearm was revoked five years ago by Police Chief Gary J. Gemme.

Lawyer Mel L. Greenberg, who represents Raymond J. Holden, filed an amended petition in Central District Court Sept. 10 appealing Chief Gemme’s 2005 revocation of Mr. Holden’s firearm’s license based on a determination that Mr. Holden was not a “suitable person” to carry a gun.

In a memorandum of law accompanying his amended petition, Mr. Greenberg said the term “suitable person,” as it appears in the law, is unconstitutionally vague given the Supreme Court’s June 28 ruling in the case of McDonald v. Chicago. The nation’s highest court ruled in a 5-4 decision in that case that the Second Amendment grants citizens a fundamental right to bear arms that cannot be infringed upon by state and local governments.

Mr. Holden, who has a place of business in Worcester, had been granted a license to carry a firearm in 2001, but the license was suspended by Chief Gemme on Sept. 14, 2005, four days after Mr. Holden was arraigned in Westboro District Court for an alleged assault on his wife.

Judge Dennis J. Brennan, since retired, then ordered the reinstatement of Mr. Holden’s license in light of the dismissal of the assault charge. Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed.

“The McDonald ruling adds the Second Amendment right to bear arms to the list of fundamental rights guaranteed to all citizens. Consequently, any state statute or regulation which restricts or regulates such a right is subject to the strictest judicial scrutiny to insure that it reasonably regulates without infringement of that right and that its application does not result in a denial of due process rights,” Mr. Greenberg wrote.

http://www.telegram.com/article/20100917/NEWS/100919634/1116

[old mark]

1. I really support this guy. I was denied a permit over 30 yers ago, before

the "Shall Issue" law in PA because the police chief didn't like my looks. I had been discharged from the Army after serving my 3 year enlistment and was growing my hair for about 8 months or so before I decided to buy a Smith & Wesson K-.38 Masterpiece target revolver, and I applied for a carry permit just to see if I could get one. Evidently the chief felt I was not entitled to do so, despite a clean police record, an honorable discharge from the military, and a job.

Since the "shall Issue" law was enacted in PA, I have had a License to Carry a Firearm for over 15 years.

The police should not be able to deny your rights just because they don't like you.

Rec.
mark

[merqz]

7. If I understand the case correctly,

Heller did not specifically state which standard of scrutiny would need be applied in the future for gun restrictions, such as this.

"Ultimately, the Court agreed with Heller that D.C.’s ban on all functional firearms in the home is unconstitutional “under any of the standards of scrutiny the Court has applied to enumerated constitutional rights.” But the Court did not choose a specific standard, and may hereafter apply something less than the strict scrutiny standard Heller had suggested. On the other hand, the Court categorically rejected “rational basis” scrutiny, which has been a rubber-stamp for virtually all legislative enactments. And the Court also rejected Justice Stephen Breyer’s “interest-balancing” test, which is no more than a repeat of the process that legislatures undertake in crafting regulations. Something higher is demanded, said Scalia, when an express constitutional right is at issue. At a minimum, it appears that the Court will adopt some version of intermediate or heightened scrutiny, as urged by the Justice Department."

there is NO way that this revocation would be justifiable under strict scrutiny imo. Whether it would fail under "intermediate" or "heightened" scrutiny is a tougher question, but I would still opine that it fails.

[X_Digger]

8. Probably look to McDonald..

In McDonald, the 'fundamental' right language points to strict without being explicit.

[merqz]

9. I'll look at that, thanks.

That would seem to me to be the logical choice for a right that is clearly enumerated in the bill of the rights, the 2nd amendment for pete's sake- Strict Scrutiny. Considering all the compromise that is going on with our rights in general, that MAY be too much to ask for, but ANYTHING is better than "rational basis" that's for sure.

[X_Digger]

10. Agreed. n/t

[Wilber_Stool]

2. You don't need a license to own a gun,

just to carry one. If overturned it would also apply to felons and other assorted loonies.

[PavePusher]

3. You are wrong about the "felons and loonies". n/t

[X_Digger]

5. Other states' "shall issue" standards don't allow it.

It's the absence of judicial due process, and complete arbitrariness that's at issue here.

If a cop pulled you over and claimed he was taking your license because he didn't like the way you looked, and there was no way to challenge it, you'd bring a suit on the same grounds- that arbitrary application of a power that denied a civil right was unconstitutional. You did not have the opportunity to appeal your citation before a judge. A sucessful challenge to such a case wouldn't mean that driver's licenses can't be restricted, only that the granting or revoking of them must meet concrete criteria and have due process.

[SteveM]

11. Ha! You think "felons and... loonies" need an overturn?

[Hoopla Phil]

4. Hope he wins. I'm hoping for change on this one.

[Euromutt]

6. Nasty authoritarian streak that police chief has going there

Chief Gemme followed the court’s order, but then revoked the license, saying he could consider underlying evidence that a crime had occurred even if a charge had been dismissed.

And that, ladies and gentlemen, is why we have separation of powers, and we don't let the cops decide whether someone is innocent or guilty, but instead leave it to an independent judiciary. Memo to Chief Gemme: when you don't have enough evidence to even press charges, you do not get to treat a person as if he's guilty anyway.

[SteveM]

12. Chief "Gemme?" Sounds appropriate.

[YllwFvr]

13. due process win :/ n/t