Calling gun rights enthusiasts in Guam, Puerto Rico, Marianas

Posted on December 15, 2012 by Oleg Volk

I’d like to get in touch with pro-RKBA people at those locations. Feel free to give them my email (olegvolk at gmail). This is time-sensitive.

This entry was posted in civil rights, rkba and tagged island, US posessions. Bookmark the permalink.

7 Responses to Calling gun rights enthusiasts in Guam, Puerto Rico, Marianas

Juan E. Grillo says:

December 22, 2012 at 7:56 pm

Current 2A case in San Juan Federal District Court was just dismissed by the court.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DANNY WILLIAMS, et als.,
Plaintiffs,
v.
COMMONWEALTH OF PUERTO RICO, et
als.,
Defendants.
CIVIL NO. 12-1218 (FAB)
OPINION AND ORDER
BESOSA, District Judge.
Before the Court is the motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) filed by
defendants Police Department, Department of Justice, the
Commonwealth of Puerto Rico, and the Puerto Rico Superior Court
(collectively, “defendants”). (Docket No. 15.) For the reasons
discussed below, the Court GRANTS defendants’ motion to dismiss.
I. BACKGROUND
A. Factual & Procedural History
On April 10, 2012, plaintiffs Danny Williams (“Williams”)
and Ruben Gonzalez Lora (“Gonzalez”) filed an amended complaint,
alleging that Puerto Rico’s Weapons Act of 2000 (“P.R. Weapons
Act”), P.R. Laws Ann. tit 25, §§ 455–460(k), is facially invalid
pursuant to the Second and Fourteenth Amendments to the United
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 1 of 33
Civil No. 12-1218 (FAB) 2
States Constitution. (Docket No. 5.) Plaintiffs seek damages and
injunctive relief pursuant to 42 U.S.C. § 1983.
On September 8, 2011, plaintiff Gonzalez, a law student
at the Interamerican University in Puerto Rico, requested a permit
to carry a weapon pursuant to section 456d of the P.R. Weapons Act.
Id. at pp. 3 & 5. Judge Gisela Alfonso Fernandez (“Judge Alfonso”)
of the Puerto Rico Superior Court denied plaintiff Gonzalez’s
petition after he failed to provide three sworn statements from
reputation witnesses, a sworn statement to the effect that he filed
his Commonwealth taxes, and a certificate from child support
stating that he had no debt. Id. at p. 5. On October 11, 2011,
plaintiff Williams, an active duty Coastguardsman, also requested
a permit to carry a weapon pursuant to section 456d. Id. at pp. 3
& 5. Because his application was missing necessary papers—income
tax returns and testimony by three reputation witness—Judge Alfonso
also denied his petition on November 7, 2011. Id. at p. 5.
In their amended complaint, plaintiffs argue (1) that the
Puerto Rico government may not license the right to keep and bear
arms, pursuant to the Second Amendment to the U.S. Constitution;
(2) that the P.R. Weapons Act discriminates against average
citizens and favors certain government officials; (3) that sections
456a and 456d of the P.R. Weapons Act unconstitutionally vest
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 2 of 33
Civil No. 12-1218 (FAB) 3
uncontrolled discretion in the hands of state officials; and (4)
that the filing requirements contained in sections 456a and 456d
are unconstitutional. Id. at pp. 6–7.
On July 12, 2012, defendants filed a motion to dismiss,
arguing (1) that neither plaintiff has standing to challenge the
constitutionality of section 456a; (2) that plaintiffs fail to
establish a violation of the Second and Fourteenth Amendments
pursuant to 42 U.S.C. § 1983; and (3) that the P.R. Weapons Act is
constitutional under an intermediate scrutiny standard of review. 1
(Docket No. 15.)
B. Rule 12(b)(6) Standard
Pursuant to Rule 12(b)(6), the Court can dismiss a
complaint that fails to state a claim upon which relief can be
granted. When assessing whether a plaintiff’s complaint provides
“fair notice to the defendants” and states “a facially plausible
legal claim,” the Court must utilize a two-pronged approach. See
Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 11-12 (1st Cir.
2011). First, the Court can disregard statements that “offer legal
conclusions couched as fact,” because the plaintiff must do more
Although defendants classify their motion to dismiss as only 1
pursuant to Rule 12(b)(6), the Court notes that an argument
regarding plaintiffs’ lack of standing is properly brought under
Rule 12(b)(1).
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 3 of 33
Civil No. 12-1218 (FAB) 4
than “parrot the elements of the cause of action.” Id. at 12.
Second, the Court is bound to treat all “properly pled factual
allegations” as true and draw all reasonable inferences in the
plaintiffs’ favor. Id. The Court must base its determination
solely on the material submitted as part of the complaint and
expressly incorporated within it. See Alternative Energy, Inc. v.
St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).
The factual material pleaded must be sufficient “to raise
a right to relief above the speculative level,” and to permit the
Court to “draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). The Supreme Court has held that
a plaintiff’s pleading must cross “the line between possibility and
plausibility.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 577
(2007). A district court should not attempt to forecast the
likelihood of success even if proving the alleged facts is
“improbable.” Id. at 556. A complaint that contains a plausible
basis for relief, therefore, “may proceed even if it appears that
a recovery is very remote and unlikely.” Id. at 556 (internal
citation omitted). The Court will draw “on its judicial experience
and common sense” in evaluating the complaint’s plausibility.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 4 of 33
Civil No. 12-1218 (FAB) 5
Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)
(internal citation omitted).
II. DISCUSSION
The Court addresses in turn the following three arguments
contained in defendants’ motion to dismiss: First, that neither
plaintiff has standing to challenge the constitutionality of
section 456a; second, that plaintiffs fail to establish a violation
of the Second and Fourteenth Amendments pursuant to 42 U.S.C. §
1983; and third, that the P.R. Weapons Act is constitutional under
an intermediate scrutiny standard of review.
A. Constitutional Standing
1. Standard
“Article III of the United States Constitution
limits the judicial power of the United States to the resolution of
cases and controversies.” Valley Forge Christian Coll. v. Ams.
United for Separation of Church & State, 454 U.S. 464, 471 (1982)
(internal quotations omitted). A crucial part of the case and
controversy limitation on the power of federal courts is the
requirement that a plaintiff must have standing to invoke federal
jurisdiction. Id. at 471-73. “[S]tanding is a threshold issue”
and determines whether a federal court has “the power to hear the
case, and whether the putative plaintiff is entitled to have the
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 5 of 33
Civil No. 12-1218 (FAB) 6
court decide the merits of the case.” Libertad v. Welch, 53 F.3d
428, 436 (1st Cir. 1995) (internal citation omitted). If a
plaintiff lacks standing to bring a matter to federal court, a
district court lacks jurisdiction to decide the merits of the case
and must dismiss the complaint. United States v. AVX Corp., 962
F.2d 108, 113 (1st Cir. 1992).
To establish Article III standing, plaintiffs must
show that they have a “personal stake in the outcome” of the claim
asserted by meeting a three-part test. Pagan v. Calderon, 448 F.3d
16, 27 (1st Cir. 2006) (citing Baker v. Carr, 369 U.S. 186, 204
(1962)) (internal citations omitted). They must show: “(1) a
concrete and particularized injury in fact, (2) a causal connection
that permits tracing the claimed injury to defendants’ actions, and
(3) a likelihood that prevailing in the action will afford some
redress for the injury.” Weaver’s Cove Energy, LLC v. R.I. Coastal
Res. Mgmt. Council, 589 F.3d 458, 467 (1st Cir. 2009) (internal
quotations omitted). The Supreme Court has held that the party
invoking federal jurisdiction bears the burden of establishing
these elements. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992) (internal citations omitted). Moreover, the standing
inquiry is claim-specific: a plaintiff must have standing to bring
each and every claim that he asserts. Katz v. Pershing, LLC, 672
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Civil No. 12-1218 (FAB) 7
F.3d 64, 71–72 (1st Cir. 2012) (citing Pagan, 448 F.3d at 26).
Because they are not mere pleading requirements but rather an
indispensable part of the plaintiff’s case, “each element must be
supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of
litigation.” Katz, 672 F.3d at 71 (internal citation omitted). At
the pleading or motion to dismiss stage, “general factual
allegations of injury resulting from the defendant’s conduct may
suffice.” Lujan, 504 U.S. at 561 (internal citation omitted).
The first element of Article III standing is an
injury in fact, defined as “an invasion of a legally protected
interest which is (a) concrete and particularized; and (b) actual
or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at
560 (footnote, citations, and internal quotations omitted). The
First Circuit Court of Appeals has noted that these characteristics
are distinct. See Katz, 672 F.3d at 71. “Particularity demands
that a plaintiff must have personally suffered some harm[, and . .
. t]he requirement of an actual or imminent injury ensures that the
harm has either happened or is sufficiently threatening; it is not
enough that the harm might occur at some future time.” Id. The
final two elements of standing are causation and redressability.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 7 of 33
Civil No. 12-1218 (FAB) 8
Causation requires a plaintiff to show a sufficiently direct causal
connection, which “cannot be overly attenuated,” between the
challenged action and the identified harm. Donahue v. City of
Boston, 304 F.3d 110, 115 (1st Cir. 2002). Because the opposing
party must be the source of the harm, causation is absent if the
injury stems from the independent action of a third party. See
Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).
Redressability requires a plaintiff to show that a favorable
resolution of his or her claim would likely remedy the professed
injury. Redressability is a matter of degree, and to satisfy this
requirement, the plaintiff “need not definitively demonstrate that
a victory would completely remedy the harm.” Antilles Cement Corp.
v. Fortuño, 670 F.3d 310, 318 (1st Cir. 2012).
2. Analysis
Defendants argue that plaintiffs do not have
standing to challenge the constitutionality of the licensing
requirements of section 456a of the P.R. Weapons Act because each
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 8 of 33
Civil No. 12-1218 (FAB) 9
plaintiff already possesses a weapons license. (Docket No. 15 at 2
pp. 12–13.) They contend that plaintiffs “have nothing at stake”
regarding a determination by the Court because plaintiffs will be
unable to demonstrate a concrete and particularized injury in fact,
or a likelihood that prevailing in the action will afford some
redress for the injury. Id. Plaintiffs respond that their
concrete and particularized injury in fact arises out of section
456a’s requirement that any person who possesses a weapons license
and wants to maintain it must renew it every five years and resubmit
the remuneration and documentation. (Docket No. 17 at p.
13.) In their reply, defendants argue that plaintiffs’ response
means “the issue is not ripe for consideration given that there is
no imminent action by the state that would require redress.”
(Docket No. 22 at p. 3.)
Defendants do not dispute that a permit denial pursuant to 2
section 456d’s administrative scheme constitutes an injury.
Plaintiffs assert a right to a permit under section 456d of the
P.R. Weapons Act, the denial of which the First Circuit Court of
Appeals recognizes as an Article III injury. See Hightower v. City
of Boston, 693 F.3d 61, 70 (1st Cir. 2012) (quoting Parker v.
District of Columbia, 478 F.3d 370, 376 (D.C. Cir. 2007) (stating
that statutory classifications used to bar ownership of a permit,
and “the formal process of application and denial, however routine,
makes the injury to [one’s] alleged constitutional interest
concrete and particular”). Accordingly, because plaintiffs’
amended complaint alleges that they applied for and were denied a
permit under section 456d, it is clear that plaintiffs have
standing to challenge the constitutionality of that section.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 9 of 33
Civil No. 12-1218 (FAB) 10
The Court disagrees that plaintiffs lack standing to
challenge section 456a and that their “Second Amendment right is
safeguarded by the weapons license which they already possess.”
Plaintiffs’ concrete and actual injury arises from the fact that
they both have paid the application fees and submitted the
requisite money, certificates, forms, and statements that are
challenged as unconstitutional under section 456a. The economic
injury they sustained to obtain the weapons license is a sufficient
basis for standing. The Court considers the constitutional
standing issue to be a close one, however, given plaintiffs’ prayer
for declaratory and injunctive relief. To establish standing for
a claim of declaratory and injunctive relief, a plaintiff must
establish that future harm is both imminent and likely. See Los
Angeles v. Lyons, 461 U.S. 95, 105 (1974). In this case,
plaintiffs demonstrate a likelihood of future injury because in
order to maintain their weapons licenses, they will have to renew
the licenses—a process that requires compliance with all of section
456a’s provisions. (Docket No. 17; P.R. Laws Ann. tit 25 § 456a.)
Because the Court does not consider the future injury to be
“hypothetical,” “speculative,” or “conjectural,” McInnis-Misenor v.
Me. Med. Ctr., 319 F.3d 63, 71 (1st Cir. 2003), it finds that
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 10 of 33
Civil No. 12-1218 (FAB) 11
plaintiffs have demonstrated an injury in fact under the first
element of standing.
Plaintiffs have also demonstrated both causation and
redressability sufficient for standing. They allege that because
the P.R. Weapons Act’s license and permit requirements
impermissibly burden plaintiffs’ Second Amendment right to keep and
bear arms, the enforcement of sections 456a and 456d is the cause
of their harm. Further, a declaratory judgment or injunction
granted by this Court would likely redress plaintiffs’ claims
because they would alleviate the burden posed by sections 456a and
456d on plaintiffs’ ability to obtain a permit to carry a weapon
and to maintain their weapons licenses. Accordingly, the Court
finds that both plaintiffs have standing to challenge section 456a
and declines to grant defendants’ motion on standing grounds.
B. Failure to State a Claim Pursuant to 42 U.S.C. § 1983
Defendants next argue that plaintiffs fail to establish
a violation of the Second and Fourteenth Amendments under 42 U.S.C.
§ 1983 (“section 1983”). To state a claim pursuant to section
1983, plaintiffs must plausibly plead (1) that they were deprived
of a constitutional right; (2) that a causal connection exists
between defendants’ conduct and the constitutional deprivation; and
(3) that the challenged conduct was attributable to a person acting
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 11 of 33
Civil No. 12-1218 (FAB) 12
under color of state law. Sanchez v. Pereira-Castillo, 590 F.3d
31, 41 (1st Cir. 2009) (citing 42 U.S.C. § 1983). Defendants
submit that plaintiffs cannot establish a deprivation “of the
rights, privileges, or immunities secured by the Constitution or
other laws of the United States” for two reasons. First,
“plaintiff’s [sic] current status as weapons license holders
protects their rights under the Second Amendment. Nothing in their
current position prevents them from possessing a firearm in their
home for the purpose of self defense.” (Docket No. 15 at p. 15.)
Second, the permit to carry a firearm “is a privilege and not a
right protected by the Second Amendment by way of the Fourteenth
Amendment.” Id.
Defendants’ first argument, as a mere reiteration of its
standing argument, is inconsequential. Plaintiffs’ constitutional
challenge to section 456a is framed as a facial challenge. (Docket
No. 5 at p. 2.) In the case of a facial constitutional challenge,
once standing is established, the individual application of facts
is not at issue, and a plaintiff’s personal situation becomes
irrelevant. See Ezell v. City of Chicago, 651 F.3d 684, 697 (7th
Cir. 2011) (citing Reno v. Flores, 507 U.S. 292, 300–01 (1993)).
Accordingly, that plaintiffs already possess a weapons license does
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 12 of 33
Civil No. 12-1218 (FAB) 13
not mean they have failed to state a claim for their facial
challenge to the P.R. Weapons Act.
Defendants’ second argument, however, cuts to the
foundation of plaintiffs’ constitutional challenge. “A statute is
presumed constitutional, and the burden is on the one attacking the
legislative arrangement to negative every conceivable basis which
might support it, whether or not the basis has a foundation in the
record.” Heller v. Doe, 509 U.S. 312, 320-21 (1993) (internal
quotations and citations omitted). A facial challenge to a
legislative act, moreover, is considered “the most difficult
challenge to mount successfully, since the challenger must
establish that no set of circumstances exists under which the act
would be valid.” Salerno, 481 U.S. at 745. To prevail on a facial
challenge, plaintiffs must therefore establish that “no set of 3
circumstances exist under which [P.R. Weapons Act sections 456a and
456d] would be valid.” McGuire v. Reilly, 386 F.3d 45, 57 (1st
The Supreme Court has explained that facial challenges are 3
inherently disfavored because they “rest on speculation,” “raise
the risk of premature interpretation of statutes on the basis of
factually barebones records,” “run contrary to the fundamental
principle of judicial restraint,” and “threaten to short circuit
the democratic process by preventing laws embodying the will of the
people from being implemented in a manner consistent with the
Constitution.” Hightower, 693 F.3d at 76–77 (citing Sabri v.
United States, 541 U.S. 600, 609 (2004); Ashwander v. TVA, 297 U.S.
288, 347 (1936); Ayotte v. Planned Parenthood of Northern New Eng.,
546 U.S. 320, 329 (2006)).
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 13 of 33
Civil No. 12-1218 (FAB) 14
Cir. 2004) (quoting United States v. Salerno, 481 U.S. 739 (1987).
“[T]his standard imposes a very heavy burden on a party who mounts
a facial challenge to a state statute.” McCullen v. Coakley, 571
F.3d 167, 174 (1st Cir. 2009).
The Court finds that plaintiffs have not established in
their amended complaint that the challenged sections of the P.R.
Weapons Act would be invalid under all circumstances. Accordingly,
plaintiffs’ facial constitutional challenge does not state a claim
upon which relief may be granted. See Hightower, 693 F.3d at 78; 4
United States v. Salerno, 481 U.S. 739, 745 (1987); McCullen v.
Coakley, 571 F.3d 167 (1st Cir. 2009); Del Gallo v. Parent, 557
F.3d 58, 68 (1st Cir. 2009). In an abundance of caution, however,
the Court addresses plaintiffs’ claim on the merits and
nevertheless finds that sections 456a and 456d are constitutional.
C. Constitutionality of Sections 456a and 456d
1. The Terms of the P.R. Weapons Act
In Puerto Rico, the possession, carrying or using of
any firearm without a license is a criminal felony offense. See
As the First Circuit Court of Appeals has recognized, an 4
attack that a statutory requirement confers too much discretion and
is not sufficiently connected to a sufficient government interest
“does not establish that there is no ‘plainly legitimate sweep’ of
circumstances” where an applicant may properly be denied a license
or permit to carry a weapon. See Hightower, 693 F.3d at 78.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 14 of 33
Civil No. 12-1218 (FAB) 15
P.R. Laws Ann. tit 25, §§ 455–460k. A weapons license is defined
as “the license issued by the [Puerto Rico Police] Superintendent
that authorizes the concessionaire to possess, carry and transport
arms and ammunition, and, depending on their category, to carry
firearms, target shooting or hunting.” P.R. Laws Ann. tit. 25,
§ 455. To obtain a weapons license, a petitioner must satisfy a
list of fourteen requirements. See id. at § 456a. Plaintiffs in
this case challenge the constitutionality of four of those
requirements: (1) the submission of a sworn statement attesting to
compliance with fiscal laws; (2) the purchase of a $100 internal
revenue stamp payable to the Puerto Rico Police; (3) the submission
of a sworn statement from three witnesses attesting to the fact
that the petitioner enjoys a good reputation in the community, does
not have a tendency to commit acts of violence, and that the
witness has no objection to the petitioner owning a firearm; and
(4) the submission of a negative certification of debt from the
Child Support Administration. (See P.R. Laws Ann. tit 25, §§
456(a)(10)–(14); Docket No. 5.) Plaintiffs also claim that section
456a is facially invalid because it licenses a fundamental right
and because it vests state officials with uncontrolled discretion
to grant or deny weapons licenses. (Docket No. 5 at p. 10.)
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 15 of 33
Civil No. 12-1218 (FAB) 16
Section 456d of the P.R. Weapons Act governs the
granting of a permit to carry a weapon. To apply for a permit to
carry a weapon, a petitioner must have obtained a weapons license
pursuant to section 456a. Plaintiffs challenge the following
requirements necessary to obtain a permit to carry a weapon: (1)
the same application requirements contained in section 456a
challenged above–the submission of third party affidavits, proof of
state tax and child support payments, and a physical and mental
abilities certification; (2) a sworn statement confirming that all
requirements established in section 456a are met and that the
entire contents of the application are true and correct; (3) the
payment of a $250 internal revenue voucher payable to the
Superintendent; and (4) a certification issued by an authorized
official of a gun club in Puerto Rico, stating that the petitioner
has passed a course in the correct and safe use and handling of
firearms. (See P.R. Laws Ann. tit 25, § 456d; Docket No. 5.)
Plaintiffs also argue that section 456d is facially
unconstitutional because it vests the Superior Court of Puerto Rico
judges with uncontrolled discretion to issue or refuse to grant
permits to carry. (Docket No. 5.)
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 16 of 33
Civil No. 12-1218 (FAB) 17
2. The Second Amendment Right to Bear Arms
The Second Amendment provides, “A well regulated
Militia, being necessary to the security of a free State, the right
of the people to keep and bear Arms, shall not be infringed.” U.S.
Const. amend. II. In United States v. Heller, the Supreme Court
found for the first time that the Second Amendment secured an
individual, not just a collective, right to bear arms. 554 U.S.
570, 576–95 (2008). It elevated “above all other interests the
right of law-abiding, responsible citizens to use arms in defense
of hearth and home.” Id. at 635. The Court also declared,
however, that restraints exist on the Second Amendment right, which
is not absolute:
Like most rights, the right secured by the Second
Amendment is not unlimited . . . . [N]othing in our
opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and
government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.5
Id. at 626-27. The Supreme Court reiterated this reasoning in
McDonald v. City of Chicago, 130 S. Ct. 3020, 3047 (2010), stating,
“We made it clear in Heller that our holding did not cast doubt on
In an accompanying footnote, the Supreme Court offered an 5
important clarification of this passage: “We identify these
presumptively lawful regulatory measures only as examples; our list
does not purport to be exhaustive.” Id. at 627 n.26.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 17 of 33
Civil No. 12-1218 (FAB) 18
such longstanding regulatory measures . . . . We repeat those
assurances here . . . . [I]ncorporation does not imperil every law
regulating firearms.”
The Supreme Court in Heller and McDonald left many issues
unresolved, however, and in the wake of those decisions, lower
courts have been faced with attempting to discern both the outer
limits of Second Amendment rights and the level of scrutiny that
should be applied to laws burdening those rights. See Hightower,
693 F.3d at 72 n.8; United States v. Masciandaro, 638 F.3d 458,
466–67 (4th Cir. 2011). The First Circuit Court of Appeals
recently declined to reach the issue of the Second Amendment’s
scope as to carrying firearms outside the vicinity of the home, but
it recognized the widespread disagreement between district courts
regarding that matter. See Hightower, 693 F.3d at 72 n.8. It
ultimately reasoned, however, that the interest “in carrying
concealed weapons outside the home is distinct from this core
interest emphasized in Heller.” Id. at 72. Interpreting Heller’s
language that “[l]icensing of the carrying of concealed weapons is
presumptively lawful,” the First Circuit Court of Appeals held that
“the government may regulate the carrying of concealed weapons
outside of the home.” Hightower, 693 F.3d at 73.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 18 of 33
Civil No. 12-1218 (FAB) 19
3. Constitutional Analysis of Sections 456a and 456d
Plaintiffs attack the constitutionality of the P.R.
Weapons Act by: (1) arguing that sections 456a and 456d are
unconstitutional simply by virtue of licensing weapons possession
in Puerto Rico; (2) claiming that the Police Superintendent, state
officials, and Superior Court judges have uncontrolled discretion
in granting or denying weapons licenses and permits to carry
weapons; (3) objecting to the various requirements in sections 456a
and 456d as undue burdens on their Second Amendment rights; and (4)
arguing that the P.R. Weapons Act is discriminatory against the
average citizen in favor of certain current and former government
officials. (See Docket No. 5.) The Court finds all of plaintiffs’
contentions unavailing.
a. Regulation is Not Unconstitutional
In light of the previously mentioned Supreme
Court and First Circuit Court of Appeals case law declaring
regulations on the carrying of weapons outside the home
presumptively lawful, plaintiffs’ contention that the mere
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 19 of 33
Civil No. 12-1218 (FAB) 20
licensing of weapons in Puerto Rico is unconstitutional fails. 6
See Heller, 554 U.S. at 626–27; McDonald, 130 S. Ct. at 3047;
Hightower, 693 F.3d at 73–74. Plaintiffs inform the Court of and
rely on a recent Seventh Circuit Court of Appeals case, Moore v.
Madigan, 2012 U.S. App. LEXIS 25264 (7th Cir. 2012), to argue that
a right to carry firearms outside the home exists under the Second
Amendment, and that any regulation of that right is
unconstitutional. (Docket Nos. 5; 17; 30.) While Moore indicates
that the right to bear arms for self-defense “is as important
outside the home as inside,” 2012 U.S. App. LEXIS 25264 at *22, the
Seventh Circuit Court of Appeals ultimately struck down the
Illinois statute in question for its uniquely restrictive, flat ban
on carrying guns outside the home. Id. at *29.
The Court can readily distinguish the facts of
this case from those in Moore. The law at issue in Moore posed a
complete prohibition on the possession of a handgun in public.
2012 U.S. App. LEXIS 25264 at *21. To the contrary, sections 456a
Plaintiffs offer very little authority for their 6
proposition, citing only a recent Seventh Circuit Court of Appeals
case. Without having any additional legal authority to consider,
the Court is unpersuaded by plaintiffs’ contention that “regulating
a right and licensing a right [are] two very different things”–a
conclusion they reach by merely comparing the definitions of
“license” and “regulation” contained in the Merriam-Webster
Dictionary. (See Docket No. 17 at pp. 11–13.)
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 20 of 33
Civil No. 12-1218 (FAB) 21
and 456d of the P.R. Weapons Act do not enforce a total prohibition
on an individual’s right to carry a firearm; rather, they allow any
petitioner to gain lawful possession of or to carry a handgun by
complying with certain statutory requirements. See United States
v. Colon-Quiles, 859 F. Supp. 2d 229, 233 (D.P.R. 2012). As cases
like Heller, McDonald, Hightower, and Moore make clear, it is the
complete ban of weapons—not the mere regulation by licensing or
requiring permits—that is unconstitutional. Heller, 554 U.S. at
626–29; McDonald, 130 S. Ct. at 3046–47; Hightower, 693 F.3d at 73;
Moore, 2012 U.S. App. LEXIS 25264 at *22–23. Accordingly, because
sections 456a and 456d do not impose a flat ban on plaintiffs’
Second Amendment right to bear arms, the Court declines to find
those sections unconstitutional solely because they impose
regulations on the possession and carrying of firearms.
b. The Government Does Not Enjoy Uncontrolled
Discretion
The Court finds unpersuasive plaintiffs’
argument that the Police Superintendent, state officials, and
Superior Court judges enjoy “uncontrolled discretion.” That
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 21 of 33
Civil No. 12-1218 (FAB) 22
contention appears to rest on a First Amendment theory of prior 7
restraints on speech, because Supreme Court cases analyzing the
text of the First Amendment “have long held that when a licensing
statute allegedly vests unbridled discretion in a government
official over whether to permit or deny expressive activity, one
who is subject to the law may challenge it facially without the
necessity of first applying for, and being denied, a license.”
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 755–56
(1988). The Supreme Court recognized “time-tested knowledge that
in the arena of free expression a licensing statute placing
unbridled discretion in the hands of a government official or
agency constitutes a prior restraint and may result in censorship.”
Id. at 757. The First Circuit Court of Appeals, however, has
explicitly rejected the application of the prior restraint doctrine
to a Second Amendment context, Hightower, 693 F.3d at 80–83,
finding the First Amendment prior restraint and overbreadth
Plaintiffs fail to cite persuasive or controlling legal 7
authority regarding uncontrolled discretion either in their amended
complaint or their opposition to defendants’ motion to dismiss.
(See Docket Nos. 5 & 17.) As the First Circuit Court of Appeals
admonished, “[j]udges are not mind-readers, so parties must spell
out their issues clearly, highlighting the relevant facts and
analyzing on-point authority.” Rodríguez v. Municipality of San
Juan, 659 F.3d 168, 175 (1st Cir. 2011). This Court will not
engage in the task of developing and fleshing out legal
argumentation – that is the responsibility of the party requesting
relief. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 22 of 33
Civil No. 12-1218 (FAB) 23
doctrines “a poor analogy for purposes of facial challenges under
the Second Amendment.” Id. at 80. Without any further guidance
from plaintiffs as to the legal foundation of their claim, the
Court rejects the argument that the P.R. Weapons Act vests
“uncontrolled discretion” in government officials.
c. Sections 456a and 456d Do Not Pose an Undue
Burden
The fate of Plaintiffs’ third argument depends
on the level of scrutiny required to analyze their claim. As the
Court has previously noted, the Second Amendment can trigger
different levels of scrutiny based on the context of the
restrictive law and the restricted activity. Colon-Quiles, 859 F. 8
Supp. 2d at 235. Plaintiffs encourage the Court to adopt a strict
scrutiny standard of review, contending that “we are dealing with
a fundamental right contained in the U.S. Constitution applied to
the Commonwealth of Puerto Rico,” and thus it is “unequivocal” that
strict scrutiny applies. (Docket No. 17 at p. 23; Docket No. 5 at
p. 6.) Defendants disagree, citing the Court’s previous ruling in
The Court heeds the First Circuit Court of Appeals’ recent 8
admonition that the matter of determining “what sliding scales of
scrutiny might apply . . . [is] a vast terra incognita that courts
should enter only upon necessity and only then by small degree.”
Hightower, 693 F.3d at 74. In order to evaluate plaintiffs’
remaining claim, the Court necessarily broaches the issue here.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 23 of 33
Civil No. 12-1218 (FAB) 24
Colon-Quiles to argue that the adequate standard of review is
intermediate scrutiny. (Docket No. 15 at p. 17.)
Intermediate scrutiny is the appropriate
standard under which to evaluate plaintiffs’ Second Amendment
claims. Several circuit courts of appeals, including the First
Circuit Court of Appeals, have applied intermediate scrutiny in
Second Amendment cases to statutes identified as presumably “lawful
regulatory measures.” See, e.g., United States v. Booker, 644 F.3d
12, 25 (1st Cir. 2011) (requiring “some form of strong showing,
necessitating a substantial relationship between the restriction
and an important governmental objective”); United States v.
Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011) (“A severe burden on
the core Second Amendment right of armed self-defense should
require strong justification. But less severe burdens on the
right, laws that merely regulate rather than restrict, and laws
that do not implicate the central self-defense concern of the
Second Amendment, may be more easily justified.”). Sections 456a
and 456d pose a less severe burden on the Second Amendment right to
bear arms, regulating only the manner in which a person may
exercise that right and not altogether prohibiting the exercise of
such a right; thus, strict scrutiny does not apply, and
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 24 of 33
Civil No. 12-1218 (FAB) 25
intermediate scrutiny is the more appropriate standard of review. 9
See Colon-Quiles, 859 F. Supp. 2d at 235.
Sections 456a and 456d of the P.R. Weapons Act
pass constitutional muster. Under an intermediate scrutiny
analysis, the Court must determine the following: whether the
asserted governmental purpose is significant, substantial, or
important; whether the connection between the challenged regulation
and that governmental purpose is reasonable; and whether the
challenged regulation burdens the fundamental right at issue more
than is reasonably necessary. Id. (citing Marzzarella, 614 F.3d at
98 (articulating the requirements of intermediate scrutiny under
First Amendment case law.)
First, the Puerto Rico legislature enacted the
Puerto Rico Weapons Act “to achieve a more peaceful and reassuring
environment with greater public safety for [Puerto Rico] citizens
As numerous other courts and legal commentators recognize, 9
the application of intermediate scrutiny is consistent with the
text and structure of the Supreme Court’s reasoning in Heller.
See, e.g., United States v. Marzzarella, 614 F.3d 85, 91 (3rd Cir.
2010) (“By equating the list of presumptively lawful regulations
with restrictions on dangerous and unusual weapons, we believe the
Court intended to treat them equivalently–as exceptions to the
Second Amendment guarantee.”); Joseph Blocher, Categoricalism and
Balancing in First and Second Amendment Analysis, 84 N.Y.U. L.REV.
375, 413 (2009) (“Heller categorically excludes certain types of
‘people’ and ‘Arms’ from Second Amendment coverage, denying them
any constitutional protection whatsoever.”). Accordingly, strict
scrutiny does not apply.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 25 of 33
Civil No. 12-1218 (FAB) 26
. . . [and] to achieve an effective solution to the problem of
controlling firearms in the hands of delinquents in Puerto Rico .
. . .” Statement of Motives, Law No. 404, H.B. 3447 (Sept. 11,
2000). The Supreme Court has consistently recognized that the
governmental interest in protecting public safety is important or
even compelling. See Schenck v. Pro-Choice Network, 519 U.S. 357,
376 (1997); United States v. Salerno, 481 U.S. 739, 745 (1987);
Schall v. Martin, 467 U.S. 253, 264 (1984); Terry v. Ohio, 392 U.S.
1, 22 (1968). The interests enumerated by the Puerto Rico
legislature, therefore, fall under the substantial and significant
government interest in ensuring the safety of all of its citizens.
Second, section 456a’s licensing requirements
and section 456d’s permit qualifications are substantially related
to that interest and do not pose an unreasonable burden. In making
such a determination, “substantial deference to the predictive
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 26 of 33
Civil No. 12-1218 (FAB) 27
judgments of [the legislature]” is warranted. Turner Broad. Sys., 10
Inc. v. FCC, 520 U.S. 180, 195 (1997); McCullen v. Coakley, 571
F.3d 167, 177 (1st Cir. 2009). The Court’s role is therefore to
determine whether the legislature “has drawn reasonable inferences
based on substantial evidence.” Turner Broad., 512 U.S. at 666,
and it concludes in this case that the Puerto Rico legislature has
done so. The P.R. Weapons Act is no political whim, because the
Puerto Rico legislature has long appreciated the dangers inherent
in the possession and carrying of firearms. Originally enacted in
1951, the P.R. Weapons Act has endured throughout the past half 11
The Supreme Court has long granted deference to legislative 10
findings regarding matters that are beyond the competence of
courts. See Holder v. Humanitarian Law Project, 130 S. Ct. 2705,
2727 (2010); Turner Broad. Sys., Inc., 520 U.S. at 195-96; Walters
v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 330-31 n.12
(1985). “In the context of firearm regulation, the legislature is
‘far better equipped than the judiciary’ to make sensitive public
policy judgments (within constitutional limits) concerning the
dangers in carrying firearms and the manner to combat those risks.”
Kachalsky v. County of Westchester, 2012 U.S. App. LEXIS 24363 at
*42–43 (citing Turner Broad., 512 U.S. at 665).
Even before 1951, the Puerto Rico government approved laws 11
regulating weapons. (See P.R. Camara de Representantes, Informe—P.
De la C. 3447, pp. 1–7 (June 15, 2000)). Puerto Rico became
subject to the Criminal Code of 1902 with the change of sovereignty
in the early twentieth century. Id. at 3. Criminalizing the
possession or carrying of firearms and other dangerous instruments
except when established by law, the Criminal Code of 1902
influenced future weapons legislation in Puerto Rico. Id. For
more than a century, the Puerto Rico legislature has consistently
regulated the possession and carrying of firearms, and the 1951
enactment of the P.R. Weapons Act demonstrates the legislature’s
enduring conclusion that restricting the possession and carrying of
firearms leads to public safety.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 27 of 33
Civil No. 12-1218 (FAB) 28
century “as a means to control crime.” Statement of Motives, Law
No. 404, H.B. 3447 (Sept. 11, 2000). Recognizing a statistical
link between rising criminal activity in controlled substance
trafficking and the proliferation of illegal firearm use, the
Puerto Rico legislature acknowledged in 2000 that a major overhaul
of the P.R. Weapons Act was needed. It then promulgated 12
“innovative provisions . . . whose implementation will allow the
law enforcement agencies to be more effective in the fight against
crime . . . [and] to promote greater safety and the public welfare
of the People of Puerto Rico.” Id.
Based on decades of review, the Puerto Rico
legislature made the reasonable inference that given the dangerous
nature of firearms, requiring a petitioner to submit payment and
documentation revealing his background, health, and character—like
third party affidavits as to the good reputation and non-violent
character of the petitioner, certification of petitioner’s physical
and mental abilities, confirmation of a successful gun club course
completion, and verification of state tax and child support
It stated, “Today, [September 11, 2000,] after four decades 12
of its approval, and although it has been extensively amended, it
is evident that the Weapons Law of Puerto Rico is not the most
effective juridical instrument to deal with the different
situations related to the handling of firearms on the Island.”
Statement of Motives, Law No. 404, H.B. 3447 (Sept. 11, 2000).
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 28 of 33
Civil No. 12-1218 (FAB) 29
payments—serves the Commonwealth’s interests in public safety. The
Court reminds plaintiffs that in order to survive constitutional
scrutiny, those provisions need only be substantially related to
the Commonwealth’s important public safety interest; a perfect fit
between the means and the governmental objective is not required.
Accordingly, the Court finds that sections 456a and 456d are not
facially invalid as an unconstitutional burden because there is a
reasonable fit between the licensing and permit regulations and the
government’s compelling interest in public safety.
d. The P.R. Weapons Act is Not Discriminatory
Finally, plaintiffs contend that the P.R.
Weapons Act “gives special treatment and privilege” to government
officials, (Docket No. 5 at p. 8), which “discriminates against the
average citizen.” Id. at p. 9; Docket No. 17 at p. 25. In their
motion to dismiss, defendants argue that plaintiffs fail to state
the necessary requirements to succeed on such an equal protection13
The Equal Protection Clause of the Fourteenth Amendment 13
commands that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.” Plyler v. Doe, 457
U.S. 202, 216 (1982).
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 29 of 33
Civil No. 12-1218 (FAB) 30
claim. Given that plaintiffs’ Second Amendment challenge fails, 14
their equal protection claim is subject to rational basis review
because it involves no suspect classification. Hightower, 693 15
F.3d at 83. As addressed above, sections 456a and 456d satisfy
Second Amendment review; therefore, they “necessarily pass[] the
rational basis test employed under the Equal Protection Clause.”
Id. (quoting McGuire v. Reilly, 260 F.3d 36, 50 (1st Cir. 2001)).
Regarding the statutory provisions that permit certain former and
Defendants also argue that plaintiff Danny Williams lacks 14
standing to challenge this provision because he is an active duty
Coastguardsman. (Docket No. 15 at p. 21.) Because the Court must
address the equal protection claim at least as to plaintiff
Gonzalez, it adjudicates the claim on the merits.
The classification plaintiffs draw from the P.R. Weapons Act 15
is between government officials and average citizens, which is far
from any previously deemed suspect class like race, religion, or
alienage. See New Orleans v. Dukes, 427 U.S. 297, 303 (1976).
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 30 of 33
Civil No. 12-1218 (FAB) 31
current government officials to possess and carry weapons, the 16
Court presumes the validity of the legislation and sustains it “if
the classification drawn by the statute is rationally related to a
legitimate [governmental] interest.” City of Cleburne v. Cleburne
Living Ctr., Inc., 473 U.S. 432, 440 (1985). This is an “extremely
deferential” standard that deems a non-suspect classification
unconstitutional “only if no legitimate basis can be imagined to
support it.” Beauchamp v. Murphy, 37 F.3d 700, 707 (1st Cir.
1994).
“The Governor, legislators, mayors, secretaries, directors 16
and heads of agencies of the Government of Puerto Rico,
Commonwealth and federal judges, Commonwealth and federal
prosecutors, minor’s advocates, the Superintendent, members of the
Police Force, officials, agents and employees of the government of
Puerto Rico who because of their office and the duties they perform
are required to carry a weapon, and every law enforcement officer,
may carry weapons. In addition, former governors, former
legislators, former superintendents, former Commonwealth and
federal judges, former Commonwealth and federal prosecutors, former
minor’s advocates, former mayors of Puerto Rico, and former law
enforcement officers may carry firearms, as long as they were
honorably retired, are not restricted by this chapter from owning
firearms, and in the case of former law enforcement officers, have
served in such a capacity for not less than ten (10) years. The
members of the United States Armed Forces and the Puerto Rico
National Guard may also carry the weapons assigned to them by said
organizations without a license while engaged in the official
duties of their office. To such ends, the Superintendent shall
establish an expedited procedure whereby the abovementioned
officials, with the exception of law enforcement officers and the
Superintendent him/herself, shall be granted a weapons license with
the corresponding permit to carry a weapon.” P.R. Laws Ann. tit
25, § 456c.
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 31 of 33
Civil No. 12-1218 (FAB) 32
Plaintiffs have not met their burden of proving
that the classification is “patently arbitrary, irrational, or
unrelated to a legitimate legislative purpose,” Nat’l Educ.
Ass’n–R.I. v. Ret. Bd. of R.I. Employees’ Ret. Sys., 172 F.3d 22,
31 (1st Cir. 1999), and the Court finds that they cannot do so.
There is nothing irrational about a general rule allowing current
and former government officials to possess and carry firearms. The
sensitive nature of many of their jobs—protecting our communities
from crime through conducting arrests, prosecuting criminals,
presiding over litigation, and creating legislation, for
example—subjects them to additional risks of danger. The P.R. 17
Weapons Act thus affords such officials an opportunity to defend
themselves and protect their families by having the right to
possess and carry firearms. See id. “Where, as here, there are
plausible reasons for [the legislature’s] action, our inquiry is at
an end.” U.S. R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980).
Accordingly, the statute is rationally related to a legitimate
See Congress’ discussion of the background and need for 17
legislation called the Law Enforcement Officers Safety Act, 18
U.S.C. §§ 926(B)–(C), which allows certain current and retired
government officials to carry concealed weapons throughout the
United States in the interest of safety. H.R. Rep. No. 108–560, at
3–4 (2004).
Case 3:12-cv-01218-FAB Document 32 Filed 12/21/12 Page 32 of 33
Civil No. 12-1218 (FAB) 33
government interest in the welfare and safety of the government’s
officials, and plaintiffs’ equal protection claim must fail.
III. CONCLUSION
For the reasons discussed above, the Court finds that
plaintiffs fail to state a claim upon which relief can be granted
because the P.R. Weapons Act’s regulation of firearms is
constitutional; Puerto Rico government officials do not enjoy
uncontrolled discretion in granting or denying weapons licenses or
permits to carry weapons; sections 456a and 456d pass intermediate
scrutiny; and the P.R. Weapons Act is not discriminatory.
Accordingly, the Court GRANTS defendants’ motion to dismiss
pursuant to Rule 12(b)(6) and DISMISSES WITH PREJUDICE all of
plaintiffs’ claims.
IT IS SO ORDERED.
San Juan, Puerto Rico, December 21, 2012.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
Jesus Mercado says:

December 22, 2012 at 8:36 pm

Hello Oleg:

There are thousands of pro-RKBA in Puerto Rico. Hundreds of them are part of the following groups on facebook:

Puerto Rico necesita el Castle Doctrine: Focused on Self defense and the 2nd amendment.
(http://www.facebook.com/#!/groups/137932486256103/),

MUJERES defensoras de la SEGUNDA ENMIENDA: Spearheaded by women who defend the right to keep and bear arms. (http://www.facebook.com/#!/groups/mujeres2daenmienda/)

There are many other groups, with many people following more than one group. Just so you know a lot of people know of your work here in Puerto Rico and your photographic work and propaganda is well known and use when is time to spread the message.

Feel free to contact me if you need more information.

Regards, Jesus Mercado
Sandra R Barreras says:

December 23, 2012 at 1:03 pm

Hy, Sandra R Barreras, NRA certified Instructor and RSO, daughter of Jose R Barreras and Sandra M Barreras, leading couple in PR defending the Constitutional Right for 40 years. Im the Executive vice president of the Damas De La Segunda Enmienda (ladies of the Second amendment) stablished in may 2012, non profit organization dedicated to protect and defend the Bill of Right of the US with emphasis to the Second Amendment. We have 1,950 followers to the day. We are currently working on eliminating the current gun law which is unconstitutional, and we have two cases at federal and state level. For more information 787-579-8085
Javier Alers says:

December 23, 2012 at 1:12 pm

I am one of the followers DSE on facebook. Also part of their cases to eliminate the unconstitinial laws.
Luis E. Torres Brignoni says:

December 23, 2012 at 1:46 pm

Hello my name is Luis Torres from Puerto Rcio I am a veteran from the US Army. I am a gun rights advocate. In anything that I can be of help let me know.
Victor Gonzalez says:

December 23, 2012 at 2:27 pm

The judge in the above mentioned case should have recused himself from the case, based on the premise that he is on the list that can get a license without anything else but being a judge so it’s his right to own one, while saying that for the rest of the population is a privilege. This is a Federal Judge no less. Seem he didn’t read the fine print on the Second Amendment.
The Puerto Rico Armed Citizen says:

December 25, 2012 at 5:34 am

I will include a link to your blog @ http://prarmedcitizen.blogspot.com.

Comments are closed.

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