Mariana Islands Public Safety Chief: Second Amendment does not Apply to Them

James Deleon Guerrero

The plaintiffs in the second amendment lawsuit against Deleon Guerrero in the Northern Mariana Islands have come up with a novel defense.  This is not too surprising, as they have very little to use.   They claim that the U.S. district Court for the Northern Mariana Islands does not have jurisdiction over the second amendment in the Islands.

From Marianas Variety:

Deleon Guerrero through Zarones said the federal court should dismiss the complaint of David Radich and Li-Rong Radich for lack of subject matter jurisdiction.

The federal court does not have subject jurisdiction over Count I of the complaint — violation of the right to keep and bear firearms — because handguns cannot be legally imported into the commonwealth, according to Deleon Guerrero.

 From the Covenant of the CNMI:

Section 501(a) of the Covenant states in relevant part:
To the extent that they are not applicable of their own
force, the following provisions of the Constitution of the
United States will be applicable within the Northern
Mariana Islands as if the Northern Mariana Islands were
one of the several States: Article I, Section 9, Clauses 2, 3,
and 8; Article I, Section 10, Clauses 1 and 3; Article IV,
Section 1 and Section 2, Clauses 1 and 2; Amendments 1
through 9, inclusive; (emphasis added)

It is also clear that the Federal  District Court has jurisdiction in matters concerning Constitutional rights in the CNMI.  As noted above, the Covenant of the CNMI specifically states that the Amendments of the Constitution, 1 through 9, will be applicable in the CNMI.   The defendants throw out another Hail Mary pass with the following contention:

Zarones said, “Handguns do not enjoy Second Amendment protection in the commonwealth because they have never been possessed or used for self-defense by the people of the commonwealth. As the Supreme Court explained, handguns are given constitutional protection because of their widespread use by the citizens of the states...If the widespread usage of handguns for self-defense justifies their constitutional protection, then it logically follows that the Supreme court would have denied constitutional protection to handguns if they had never been used by law abiding citizens for self-protection. As [Deleon Guerrero] will show, handguns have never been used by the law-abiding people of the commonwealth for the purpose of self-defense.”

The logic is that if handguns have not been used or possessed for self defense in a jurisdiction, then they are not protected by the Constitution.  I do not think the court will accept this argument.   If a jurisdiction agrees to abide by Constitutional protections, when it did not abide by them previously, it can hardly claim that the agreement to protect those rights was spurious, because it had not protected them in the past.  It would also be hard to prove that it is so.

I contacted the lawyer who wrote the code that the CNMI law is based on.  Michael A. White wrote the code while he was a Peace Core volunteer in 1970, when the law was passed, at the request of the Chairman of the Senate Committee on Judiciary and Government Operations (Congress of Micronesia)  He has an active law practice in the CNMI today.   He did not know of previous laws that forbid people from having handguns under the Spanish, German, and Japanese authorities; under the earlier U.S. government, the authority was the U.S. Navy.  I seems likely that a few pistols might have made there way into the hands of residents over that long history.

The closing statement of the lawsuit states the case quite well:

The Defendant limits the allowable purposes for obtaining a WIC and possessing a firearm to sporting, hunting, and using a target range (or traveling to or from one of these activities while the firearm is inaccessible and/or unloaded). See 6 CMC § 2206. And while those are certainly useful reasons for a firearm and are almost certainly constitutionally protected as well, the Defendant cannot exclude self-defense, the core of the Second Amendment right, as a valid purpose for obtaining a WIC and firearm. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense, 56 UCLA L. Rev. at 1448 (suggesting that the right ‘may have other components,’ such as the right to keep and bear arms for recreation, hunting, or resisting government tyranny). That the Defendant does so means the statutes must be invalidated as to Plaintiffs. Summary judgment should be granted for Plaintiffs on Counts II and III of their Complaint.

The Defendant in this case has always acknowledged that the court will likely rule against him.  He implored the CNMI Legislature to act, precisely on this basis.  From mvariety.com:  

Anticipating an unfavorable ruling from the federal court, Deleon Guerrero and Zarones have asked the Legislature to act “swiftly and without hesitation” to pass an alternative gun control law that is currently pending in the Senate.

When you know that you are going to lose in court, there is little to lose from desperate, implausible stretches of law.  It is all that you have.

 ©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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