OAG: Ban on assault rifles, $1K tax on handguns constitutional

The ban on assault rifles and the $1,000 tax on handguns in the CNMI as well as other provisions in the newly enacted law, Special Act for Firearms and Enforcement, are constitutional, according to the Office of the Attorney General.

Assistant attorney general Charles E. Brasington asserted that the ban on assault rifles in the Commonwealth survives intermediate scrutiny because the CNMI has a significant, substantial, and important interest in public safety, and there is a reasonable fit between the ban on assault rifles and protecting public safety.

Brasington argued that the $1,000 tax on pistols is constitutional because it is a legitimate use of the Commonwealth’s unique ability under the Covenant to control its own customs territory.

Brasington explained the constitutionality of SAFE provisions in a cross motion for summary judgment filed on Thursday in federal court by Department of Public Safety Commissioner Robert A. Guerrero and Department of Finance Secretary Larrisa Larson.

Guerrero and Larson filed the motion in response U.S. Army veteran Paul M. Murphy’s lawsuit that challenged the constitutionality of some provisions of SAFE, which extensively revised the gun control laws of the CNMI.

Murphy argued, among other things, that the enforcement of some provisions in the SAFE Act and CNMI Weapons Control Act has and continues to violate his Second and 14th Amendment rights.

Murphy argued that the Commonwealth infringes upon his Second Amendment rights by restricting the possession and importation of long guns of calibers greater than .22, .223, and .410, and by requiring the registration of firearms and firearm owners.

Murphy also argued that the other violations of his Second Amendment rights are banning the possession of “assault rifles”; banning large capacity magazines; requiring unattended firearms in the home to be locked in a safe; requiring firearms to be transported unloaded and separate from ammunition; and imposing a $1,000 excise tax on every handgun imported into the CNMI.

In Guerrero’s and Larson’s motion for summary judgment, Brasington said intermediate scrutiny applies to the ban on “assault rifles” as defined by SAFE.

Brasington said the ban on assault rifles impinges upon the rights protected by the Second Amendment.

The AAG said rather than banning all semiautomatics, or semiautomatic rifles, the legislature banned a subset of semiautomatic rifles above .223 caliber with enumerated military-style alterations.

On the $1,000 tax issue, Brasington said the tax is primarily revenue generating and is made for the express purpose of funding a study on the increased costs associated with the introduction of handguns into the Commonwealth.

Brasington said although the tax may have an incidental deterrent effect, the U.S. Supreme Court has consistently held that this is acceptable.

He pointed out that courts do not look at the Legislature’s motive in passing a tax.

“Although there are some limitations on the power of taxation, none are implicated here,” he said.

Brasington said to the extent the federal court reviews the measure under the Second Amendment, which it should not, the taxation of firearms falls outside the scope of the Second Amendment because there is a long and pervasive history of the U.S. taxing firearms that are imported into its borders.

Brasington said the $1,000 tax on firearms is a constitutional exercise of the Commonwealth’s taxations power.

He said the tax is legitimate because the primary goal of the tax is to generate revenue to deal with the costs associated with the introduction of handguns.

Specifically, he said, the tax is meant to provide interim funding to the agencies that will be most affected by the introduction of handguns, and to update government buildings with security systems such as metal detectors.

On the storage provisions issue, Brasington said the evidence is clear: locking up guns while unattended reduces the number of incidents of accidental shootings and reduces the risk of theft.

On caliber restriction, Brasington said the SAFE’s caliber restriction is constitutional because it survives intermediate scrutiny.

As to the issue of ban on large capacity magazines (LCMs), Brasington said such ban survives intermediate scrutiny because the Commonwealth has a significant, substantial, and important interest in public safety; and there is a reasonable fit between the ban on LCMs and protecting public safety.

Brasington said the goal is restricting LCMs is to protect public safety by reducing the number of rounds that a shooter can use in a firefight.

The AAG said the parties’ stipulated expert, police officer David Hosono, testified that the concerns of LCM from a law enforcement perspective is the ability of an active shooter to fire more rounds without reloading, and thereby endangering more lives.

In his pro se lawsuit or without a lawyer, Murphy asked the U.S. District Court for the NMI to issue a preliminary and permanent injunctions enjoining DPS Commissioner Guerrero from enforcing against him the firearms and ammunition storage restrictions and the prohibition on obtaining, owning, and possessing ammunition feeding devices of more than 10 rounds.

Murphy also asked the court to enjoin the ban on firearms in calibers other than .22 caliber rimfire, .22 caliber center fire, .223 caliber center-fire, and shotguns other than those in .410 gauge defined as “assault weapon[s],” and the firearms and ammunition licensing and registration schemes.

The plaintiff asked the court to enjoin Finance Secretary Larson from authorizing and enforcing against him the withholding of his prohibited items currently being held in DPS custody, the ban on the importation of his personal firearms currently being held in Guam, and any further provisions in the SAFE Act.

Murphy alleged that DPS withheld all his firearms and ammunition until the issuance of a firearms, ammunition, and explosive identification card on Sept. 20, 2007.

He said his two firearms were sent to Guam Police Department armory for holding, while the ammunition is being held by the CNMI DPS Firearms Section. He said DPS has denied his repeated requests to carry and possess his rifle and pistol.