Constitutional Law

Local Attorney Says Gun Registration Bill is Unconstitutional

Local Attorney Says Gun Registration Bill is Unconstitutional

The following article appeared in the Newport Patch on April 9, 2013 (here is a link to the original post):

Editor’s Note:  State Rep Linda Finn (D-Middletown, Portsmouth) introduced legislation (2013-H 5573) in February, that would require Rhode Island gun owners to register their weapons with local police or the state police and pay a $100 registration fee.

Many Patch readers expressed concerns about the constitutionality of the proposal.  We sat down with Kevin Hagan, an attorney based out of Newport, to review the bill from a constitutional perspective, and help sort out fact from fiction. Hagan has taught Law and Society at CCRI in Newport that includes coursework on the Second Amendment. 

Patch:   Some readers said there was a difference between rights and privileges. For example, one reader said that that owning a car is a privilege, which can be subjected to a registration fee, but owning a gun is a right.  Is there a distinction?   

Hagan: It’s not a right vs. privilege analysis. It’s an individual rights analysis.  Once the Supreme Court determines something is an individual right, it’s at the paramount level of constitutional protection. Freedom of speech has been determined to be an individual right, and it is therefore carefully protected under the First Amendment.  Examples of that are pornography, contraceptives, abortion — those have been determined to be individual rights.

Patch:  Is the right to own a gun an individual right?  

Hagan: Yes. In 2008, in District of Columbia vs. Heller, Justice Scalia authored the opinion that the right to bear arms is an individual right.  It was a mystery for the last 100 years whether or not it was an individual right or a right of the militia, such as army and law enforcement

Justice Scalia was clear about certain exceptions, such as people that are intoxicated, mentally ill or felons. There is even a restriction on types of firearms.  You can’t have a rocket launcher or sawed-off shotguns.  Individual rights can be limited, but there must be a compelling government interest to impose regulation.

Patch:  How does that decision impact gun legislation?
Hagan: Any regulation of an individual right is subjected to strict scrutiny, which refers to the most stringent standard of judicial review used by United States court. Public safety is a compelling government interest, but the limitation on the right must directly correspond to that interest.  In the example of the gun registration bill, it must be demonstrated that the $100 fee and the registration requirement will directly contribute to public safety.

Patch: Does this gun registration bill violate the constitution?

Hagan:  In my opinion, yes. I don’t think it’s narrowly tailored. How does a $100 registration fee enhance the public safety?  There is no evidence whatsoever that registration fees or even registration requirements have a beneficial impact on public safety.

I want to be clear that I’m not a gun person.  I’ve never fired a gun. I don’t own any guns. I’m evaluating it only from a constitutional perspective.

Lawmakers would have to provide empirical evidence that the proposed changes directly correlate to public safety.  There is not only a lack of evidence the bill would improve public safety, but other countries have tried similar gun registration programs and failed. A
similar gun registration program in Canada failed to reduce crime and was far more expensive than expected.  

I don’t presume to know what alternatives may be. That’s the great thing about the state legislature, they have the resources to look at empirical evidence. It quite simply hasn’t been done.

Kevin Hagan can be contacted at
The information in this article is for informational purposes only; it does not constitute legal advice. This content does not create an attorney-client relationship.

"How recent interpretations of Confrontation Clause and hearsay rules will impact admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…"

The following case reflects how recent interpretations of the Confrontation Clause and well settled hearsay rules will impact the admissibility of Breathalyzer certificates in drunk driving, DUI, DWI, and Driving under the influence prosecutions…       

Court of Appeals of Virginia,
Phillip Lawton GRANT  v.  COMMONWEALTH of Virginia.
Record No. 0877-08-4.
Sept. 1, 2009.

Background: Defendant was convicted in the Circuit Court, Fairfax County, Bruce D. White, J., of driving while intoxicated. Defendant appealed. 

Holdings: The Court of Appeals, Petty, J., held that:

(1) attestation clause in certificate memorializing the results of a blood test was testimonial in nature, and its admission violated the Confrontation Clause, and
(2) admission of certificate in violation of Confrontation Clause was not harmless error, and required reversal. 

Reversed and remanded.

Present: FELTON, C.J., and FRANK and PETTY, JJ.
PETTY, Judge.

  *716 Appellant, Phillip Lawton Grant, challenges his conviction for driving while intoxicated, in violation of Code § 18.2-266. Grant argues that his conviction should be reversed because the certificate of the results of a chemical analysis of his breath indicating his blood alcohol level was admitted into evidence in violation of his Sixth Amendment right to confront witnesses against him.FN1 **86 For the reasons explained below, we agree with Grant and reverse his conviction. 

FN1. Grant's question presented on appeal is:

Whether the trial court erred by denying appellant's motion to exclude from evidence, or alternatively to strike from evidence, the certificate of analysis because the Commonwealth failed to comply with appellant's timely “Notice of Defendant's Exercise of Confrontation Rights Pursuant to Va.Code 19.2-187.1.”  

While both parties argued that the statutes governing the admissibility of the breath test certificate are Code §§ 19.2-187 and 19.2-187.1, the express statutory authority for the admission of a breath test certificate is set out in Code § 18.2-268.9.Code § 19.2-187 is limited to certificates of analysis prepared by the Division of Consolidated Laboratory Services, the Department of Forensic Science, and certain other enumerated laboratories. Further, Code § 19.2-187.1 only provides for a right by the defendant to examine persons performing analysis pursuant to Code § 19.2-187. It does not appear that the Fairfax County Adult Detention Center is one of the laboratories enumerated in Code § 19.2-187. However, whether the parties and the trial court relied upon the correct statutory scheme addressing the admissibility of the breath test certificate is not before us in this appeal. Therefore, we assume without deciding for the purposes of this opinion that Code § 19.2-187.1 is applicable to this case.


"In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law."

In Rhode Island, DUI, DWI, Driving Under the Influence, and Drunk Driving cases seem to provide motorists with minimized constitutional protections under the law. Most police agencies now take the position that the court-recognized status of a driver's license as a privilege, coupled with the statutory authorization for chemical intoxication tests in driving-while-intoxicated cases, amounts to a waiver of a suspect's constitutional rights against self-incrimination and the right to counsel prior to questioning and the giving of the test, unless otherwise provided by state law. Consequently, the normal order of police routine involves (1) a demand on the suspect to take the test, (2) extensive questioning, (3) performing the test, and finally, (4) an offer of an opportunity to the suspect to consult counsel.

In cases where the police should have recognized that the cause of the apparently intoxicated behavior was not alcohol, but was instead a medical condition from which the subject was suffering, a cause of action may exist against the police for failure to assure that the defendant was immediately delivered to a hospital for medical treatment.  Of course, it becomes very important to provide alternate reasons for the suspect’s failure to properly perform standardized field sobriety tests. 

In one Federal case, officers had probable cause to arrest motorist at roadblock, and such seizure did not violate his civil rights, where officer received report that possibly intoxicated driver was slumped over steering wheel of vehicle parked on shoulder of interstate, motorist's appearance indicated that he had been drinking, motorist declined to answer officer's questions and drove away without explanation, motorist failed to stop when officer engaged his emergency equipment, bumped motorist's vehicle,and shot out his tires, and motorist swerved to prevent officer from passing him. U.S.C.A. Const.Amend. 4; 42 U.S.C.A. § 1983. Latta v. Keryte, 118 F.3d 693 (10th Cir. 1997). Read More...

"A trial on a charge of driving while intoxicated may raise constitutional issues"

A trial on a charge of driving while intoxicated may raise constitutional issues, such as whether there was probable cause for the arrest, whether adequate warnings were given to the suspect as to his rights, whether there was an intelligent waiver of rights, whether there was duress sufficient to raise a defense of self-incrimination, and whether there might have been a violation of equal protection and due process guarantees. The various constitutional questions noted above are necessarily left largely unanswered, because few of such questions have been satisfactorily answered by the courts in the context of prosecutions for driving while intoxicated. Decisions of the United States Supreme Court on these constitutional issues have been rendered in cases involving felonies such as murder, burglary, theft, and possession of narcotics, but the application of such decisions to driving-while-intoxicated cases are not always clear in most instances. Read More...