$1K excise tax on pistols declared unconstitutional

Judge Manglona also declares unconstitutional several SAFE provisions

U.S. District Court for the NMI Chief Judge Ramona V. Manglona has declared unconstitutional the $1,000 excise tax on pistols and several provisions that the CNMI imposed under the newly enacted Special Act for Firearms and Enforcement.

“The government need not arm the poor, but it cannot impose uncommon burdens on their ability to exercise their fundamental constitutional rights,” said Manglona in a 55-page order issued on Wednesday.

Manglona said the court will strike down the excise tax on handguns as it is not narrowly tailored to a legitimate interest and cannot survive any form of heightened scrutiny.

Manglona discussed the $1,000 excise tax on handguns and other SAFE provisions in granting in part Paul A. Murphy’s motion for summary judgment.

The judge’s ruling favored to most of the challenges that Murphy raised in his lawsuit that challenges certain provisions of the Commonwealth’s Weapons Control Act and SAFE.

Murphy is a U.S. Army Ranger veteran and currently a teacher. As a pro se plaintiff or without a lawyer, Murphy sues Department of Public Safety Commissioner Robert A. Guerrero and Department of Finance Secretary Larrisa Larson in their official capacities to enjoin them from enforcing certain provisions of the Commonwealth’s Weapons Control Act and SAFE.

In granting the motion favorable to Murphy, Manglona also declared unconstitutional other provisions of the Commonwealth Code as they “violate the individual right to armed self-defense, in violation of the Second and Fourteenth Amendments to the U.S. Constitution, make applicable in the CNMI by the Covenant.”

Declared as unconstitutional is a provision that requires the registration of firearms and another provision that restricts the caliber of long guns.

The other provisions declared unconstitutional: the provision that defines “assault weapon” to include a semiautomatic rifle in a caliber greater than .223 that has the capacity to accept a detachable magazine and any one of the following: a pistol grip under the action of the weapon; a thumbhole stock; a folding or telescoping stock; a flare launcher; a flash suppressor; and a forward pistol grip.

Also declared unconstitutional is the provision that criminalizes the open carry of a handgun (pistol) in operable use for self-defense outside the home.

Finally, declared unconstitutional is the last sentence of a provision to the extent that it is a registration measure that requires Customs to withhold imported firearm until or “upon a showing that the firearm has been properly registered.”

OAG response

Attorney General Edward Manibusan said the Office of the Attorney General is pleased to have succeeded on the most important provisions of SAFE.

“My office will continue to address the outstanding legal issues through legislation,” Manibusan said in a press release.

Manibusan said the federal court found the following provisions to be constitutional: (1) requiring individuals to obtain a firearm license before being allowed to possess a firearm; (2) requiring the firearms kept in the home to be either “in a locked container or disabled with a trigger lock” or “carried on the person of an individual over the age of 21”; (3) outlawing magazines designed to accept more than 10 rounds of ammunition; (4) outlawing grenade launchers; (5) temporarily seizing firearms brought into the Commonwealth until the owner is not yet licensed to possess a firearm in the Commonwealth.

Cost awarded to Murphy

Manglona also permanently enjoined DPS Commissioner Guerrero and Finance Secretary Larson from enforcing the provisions of the Commonwealth Code that have been declared unconstitutional.

Manglona awarded costs to Murphy, who was given until Oct. 11, 2016, to file an accounting itemizing any costs expended in filing this lawsuit. The judge, however, denied Murphy’s request for legal fees as a pro se plaintiff he is not entitled to an award of attorney fees in a civil rights action.

On the other hand, Manglona issued judgment in favor of the CNMI and against Murphy on the issues of licensing individuals who seek to possess firearms, storage restrictions on firearms in the home, and the ban on large capacity magazines.

On the $1,000 excise tax issue, Manglona agreed with Murphy that the tax places an excessive burden on the exercise of the right of law-abiding citizens to purchase handguns for self-defense without a corresponding important government interest.

“Accordingly, the law cannot stand,” the judge pointed out.

Manglona said the Second Amendment protects the right to armed self-defense, which includes the right to acquire such arms.

Manglona said SAFE’s $1,000 excise tax imposes a tremendous burden on the rights to responsible law-abiding citizens in the CNMI to obtain handguns.

The judge said applied against the most expensive handgun, which lists for $7,699.99, a $1,000 excise tax is high—about 13 percent—but within the general scope of other Commonwealth excise taxes.

However, Manglona said, when applied against the least expensive $150 handguns, the excise tax amounts to a whopping 667 percent tax, more than six times higher than the punitive provisions of the Commonwealth’s import tax scheme.

Manglona said because SAFE’s excise tax comes close to destroying the Second Amendment right to acquire “the quintessential self-defense weapon,” the court will strike it down.

Manglona concluded that the Weapons Control Act and SAFE clearly demonstrate the CNMI’s commitment to reducing guns crimes through regulation.

However, Manglona pointed out, in its understandable zeal to keep the community safe, the Commonwealth has encroached on certain individual rights provided for by the Covenant and the Second Amendment.

“The individual right to armed self-defense in case of confrontation, like the other rights enshrined in the Covenant, cannot be regulated into oblivion,” Manglona said.

Such overly restrictive laws, the judge said, not only impact would-be criminals, but also law-abiding individuals like Murphy.

Manglona said when Murphy properly renews his weapons license, the Commonwealth must return the weapons and ammunition that he is entitled to possess consistent with this decision.

The judge said the Second Amendment, as applied to the CNMI through the Covenant, protects the right to armed self-defense in case of confrontation.

Manglona said laws that burden the right will generally be upheld if they prevent individuals who should not have firearms (for example violent felons and the mentally ill) from getting them (e.g. license requirements).

The judge said laws that burden the right will generally be upheld if they also do not burden conduct necessary for the use of lethal force when justified (e.g. storage requirements with carrying exceptions), or burden self-defense lightly but significantly reduce criminal activity reduce criminal activity (e.g. large capacity magazines ban).

However, Manglona said, laws that burden the Second Amendment right cannot survive if they lack a sound rationale (e.g. firearm registration), are not supported by evidence (e.g. long gun caliber restriction and attachment ban for assault rifles), completely destroy the right to armed self-defense no matter the importance of the government’s interest (e.g. public carry ban and transportation restriction), or attempt to destroy the right through ordinarily legitimate means (e.g. the $1,000 excise tax).

Manglona said Murphy has valiantly pursued all lawful efforts to protect and defend his rights in a community where the voice of the majority can often overpower the equally important rights of the minority.

Murphy’s battle for justice began more than nine years ago when he first applied for and was denied possession and use of his firearms.

Manglona said despite extensive statutory and case law research to support his stance, Murphy’s appeals to DPS, Office of the Attorney General, and Commonwealth Legislature fell on deaf ears.

Manglona said as Murphy has reiterated time and time again, he felt deprived of his rights, discriminated against, and fearful for the security of his person, family, and property.

The judge said Murphy’s petition to this court came at a time when he had exhausted every administrative remedy possible.

In the midst of Murphy’s litigation, Manglona issued a ruling favorable to U.S. Navy veteran David J. Radich and his wife, who prevailed in their lawsuit that challenged the constitutionality of some provisions of the CNMI’s gun control law. The ruling struck down the Commonwealth’s ban on handguns.

The CNMI Legislature and Gov. Ralph DLG Torres rushed to sign into law SAFE in an attempt to make the community’s regulations “as strict as possible.”

Manglona said the passage of SAFE, however, was a majority’s attempt to overregulate an inalienable constitutional right that could not be infringed upon.

Manglona said local legislators reasoned that their intent was not to make it difficult for people to access guns but to make communities safer; yet Murphy’s case proves otherwise.

Manglona said in the wake of SAFE, Murphy—denied assistance by every attorney he sought help from—found himself in a lone uphill battle to defend his rights and the rights of other law-abiding citizens.

Ferdie De La Torre | Reporter
Ferdie Ponce de la Torre is a veteran journalist who has covered all news beats in the CNMI. Born in Lilo-an, Cebu City in the Philippines, De la Torre graduated from the University of Santo Tomas with a bachelor’s degree in journalism. He is a recipient of many commendations and awards, including the CNMI Judiciary’s prestigious Justice Award for his over 10 years of reporting on the judiciary’s proceedings and decisions. Contact him at ferdie_delatorre@saipantribune.com

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