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November 26, 2013 at 1:36 PM
Civil Disagreement: Washington Supreme Court on gun rights for an accused shooter
Civil Disagreement is an occasional feature of the Seattle Times Editorial Page. Here editorial writers Lynne K. Varner and Bruce Ramsey come down on opposite sides of a recent Washington Supreme Court ruling supporting state law forbidding guns to persons arrested for, but not yet convicted of, a gun crime.
Lynne, take a look at the case of Roy Steven Jorgenson of Woodland, Cowlitz County, which came down Nov. 21 from the Washington Supreme Court. He was arrested of shooting someone and was about to be tried for first degree assault. Out on bail, he was arrested for having a 9-mm handgun and AR-15 rifle in his car. He wasn’t threatening anyone and wasn’t defending himself. He just had them. And under the state law forbidding possession of weapons by anyone charged with a serious crime, he was convicted of illegal possession.
At the Washington Supreme court he argued that the law violated his constitutional right to bear arms. Five justices—Steven González, Barbara Madsen, Debra Stephens, Susan Owens and Mary Fairhurst—disagreed, and the court ruled against him. They did not argue that the law was needed to defend the public, but that the Legislature thought it was, and that the court should defer to the Legislature under a rule of “intermediate scrutiny.”
Justice Charles Wiggins wrote the main dissent, signed by justices Charles Johnson, Jim Johnson and Tom Chambers. (Apart from González, Lynne, this is a case of the women versus the men.) The law was unconstitutional, Wiggins argued, because it applied to everyone charged for certain offenses, and that violated due process of law—the 14th Amendment. In Wiggins’ view, this was not about the right to own guns. “It is entirely appropriate to prohibit some individuals accused of a serious crime from possessing firearms,” Wiggins wrote (italics mine). But he argued that an accused person accused ought to have the chance to argue for himself and have a judge make a decision specific to him.
Jim Johnson, the court’s conservative, said he agreed with Wiggins on due process, but another thing bothered him. The majority had used “intermediate scrutiny.” When a fundamental right is at stake, he said, the court should use strict scrutiny, which means the law had to be “narrowly tailored” to achieve a “compelling governmental interest.” Washington’s law isn’t.
I agree with Wiggins and Jim Johnson. Firearm ownership is an individual right, whether we like it or not. (And the majority opinion by González admits this.) The judge should have been allowed to suspend that right for Jorgenson (and probably would have, too) by citing risks specific to him. A blanket prohibition pokes too large a hole in a constitutional right.
Bruce, I’ll take your argument apart in a second. But first, let me start with the question of why anyone would need to drive around with a 9-mm Tokarev and an Olympic Arms AR-15 rifle in their car? Is he on the lam from the mob? Does he have a Napoleon complex and need the extra metal, so to speak?
I know about our Second Amendment rights. But I am tired of gun owners ending up on the front page crying about how they did not know fill-in-the-blank-name-of-shooting-victim would get a hold of the weapons and shoot themselves or others. Then, once their lax gun ownership responsibilities have created a mess, they look to taxpayer-funded emergency and social services to clean it up. Want to know what I’ll be thankful for on Thursday? When I do not have to hear another gun owner tell me why they have the right to walk around armed like they’re headed to Afghanistan.
But I digress.
The case before the state Supreme Court was about intermediate versus strict scrutiny, the difference between narrow application of a goal needed to achieve a compelling public interest and something broader. State law prohibits people from having a firearm if they have been released on bond after a judge has found probable cause to believe the person committed a serious offense. The law is a preventative measure erring on the side of pubic safety.
“The State has an important interest in restricting potentially dangerous persons from using firearms,” Justice Steven Gonzalez wrote in the majority opinion.
You note that Roy Jorgenson was arrested under suspicion of shooting someone. It was more than that Bruce. He was released on bond after a trial court found probable cause that he had indeed shot someone. The justice system weighed the evidence against Jorgenson and found it credible enough to continue moving the case forward. As the majority opinion noted, when a trial judge finds probably cause, public safety justifies temporarily limiting a person’s right to possess firearms. Note the word “temporary.”
Firearm ownership is a right protected by the U.S. Constitution. But your right to bear arms should not extend to putting the public at greater risk. State law, reaffirmed by the Supreme Court, strikes the right balance.