Separation of Powers

May Legislature Restrict State Constitutional Right to Keep and Bear Arms in the Legislative Building?

A court should decide that question by interpreting the state Bill of Rights, the New Hampshire Supreme Court says; it shouldn't conclude that this is a "political question" to be decided purely by the Legislature and the people.

|The Volokh Conspiracy |

From Friday's New Hampshire Supreme Court decision in Burt v. Speaker (written by Justice Bassett),

[Plaintiffs], each a member of the New Hampshire House of Representatives, alleged that House Rule 63—which, with limited exceptions, prohibits the carrying or possession of any deadly weapon in Representatives Hall, as well as in the anterooms, cloakrooms, and House gallery—violates their fundamental rights under Part I, Article 2-a of the New Hampshire Constitution {"[a]ll persons have the right to keep and bear arms in defense of themselves, their families, their property and the state"}. The trial court dismissed the plaintiffs' complaint, concluding that, because the issue presents a nonjusticiable political question, the court lacked subject matter jurisdiction. We reverse and remand….

On January 2, 2019, the New Hampshire House of Representatives amended House Rule 63 to provide that "[n]o person, including members of the House, except law enforcement officers while actively engaged in carrying out their duties as such, shall carry or have in possession any deadly weapon … while in the House Chamber, anterooms, cloakrooms, or House gallery." Previously, House Rule 63 permitted members of the House, and others, to carry weapons in the House Chamber so long as the weapons were not displayed….

The trial court observed that "[t]he separation of powers doctrine limits judicial review of certain matters that lie within the province of the other two branches of government," and that "[w]hen the State Constitution commits an issue to one of the other two branches of government, the issue becomes non-justiciable." Noting that "[t]he State Constitution grants both houses of the legislature the authority to settle the rules of proceedings in their own [h]ouse," the trial court found that "[i]t is [not] the constitutional duty of the judiciary to review … the rules of proceedings within the legislative chambers." The trial court concluded that, "[a]s an independent and coequal branch of government, the legislature holds the inherent power to control the wearing of firearms within their chambers. This Court will not encroach on the legislature's inherent authority to enact such rules."

The New Hampshire Supreme Court reversed the trial court decision:

[The Speaker argues that] "[t]he precise issue presented by this case has been definitively decided by this Court in State v. LaFrance." See State v. LaFrance, 124 N.H. 171, 181-82 (1983)…. In LaFrance, we considered the constitutionality of a statute mandating that law enforcement officers be allowed to wear firearms in any courtroom in the state. Because the statute infringed upon the judiciary's inherent authority to make its own internal procedural rules, we found that the statute violated the separation of powers, and, therefore, was unconstitutional.

We stated that "[i]t would not be within the constitutional prerogative of the judiciary to tell either of the other two branches of government who could or could not wear guns in the Executive Council Chamber or in the Representatives' Hall." "That," we said, "would properly be a matter for those branches of government to resolve." This is the specific language that the Speaker cites in arguing his position, contending that "[t]his statement alone provides sufficient grounds for this Court to uphold the [s]uperior [c]ourt's dismissal of this action." …

[But the cited language from LaFrance] did not directly address the constitutionality of a limitation on an individual's fundamental constitutional rights, but rather, it dealt only with the interplay between branches of government…. [We did not] address the specific question presented here: whether the judiciary has the constitutional authority to determine whether House Rule 63 violates the appellant's fundamental rights under the State Constitution. Indeed, LaFrance did not involve a limitation on an individual's fundamental right under the State Constitution to keep and bear arms, but rather, a statute safeguarding that right….

Regardless, our decision in LaFrance does not permit us to treat the separation of powers as an "impenetrable barrier[]," and thereby disregard our "duty to interpret constitutional provisions and … determine whether the legislature has complied with them." The legislature may not, even in the exercise of its "absolute" internal rulemaking authority, violate constitutional limitations. Indeed, "[n]o branch of State government can lawfully perform any act which violates the State Constitution." Therefore, "[a]ny legislative act violating the constitution or infringing on its provisions must be void because the legislature, when it steps beyond its bounds, acts without authority." Accordingly, because "[i]t is the role of this court in our co-equal, tripartite form of government to interpret the Constitution," and "to determine whether the legislature has complied with [its provisions]," we conclude that the controversy as to whether House Rule 63 violates the appellant's fundamental right to keep and bear arms under Part I, Article 2-a of the State Constitution is justiciable, and that the trial court erred when it dismissed the complaint….

Finally, the Speaker urges us to reject the constitutional challenge, arguing that House Rule 63 is constitutional because it "merely imposes a reasonable restriction on deadly weapons in the House chamber." See Bleiler v. Chief, Dover Police Dep't, 155 N.H. 693, 699-700 (2007) (recognizing that "the New Hampshire state constitutional right to bear arms is not absolute and may be subject to restriction and regulation," and adopting a "reasonableness test" for evaluating substantive due process challenges to such regulations (quotation omitted)); District of Columbia v. Heller, 554 U.S. 570, 626-27, 627 n.26 (2008) (observing that "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings" are "presumptively lawful regulatory measures"). To the extent that the Speaker is asking us, in the first instance, to decide whether House Rule 63 is constitutional under Part I, Article 2-a, we decline to do so. Here, the trial court did not address the merits of the constitutional challenge. We express no opinion as to that issue, and remand for further proceedings consistent with this opinion.

Sounds right to me.


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  1. I much prefer how Maine worded it:
    “Every citizen has a right to keep and bear arms and this right shall never be questioned.”

    1. Pssh and tush. That’s easy to get around: don’t ask permission, just do it. Infringe it without asking. Nothing could be simpler.

  2. I can’t speak for NH but pursuant Kavanaugh’s “text and tradition” standard guns outside the home are subject to liberal regulation. So Americans have a right to open carry but traditionally even Americans that held themselves out as pro-2A supported measures to greatly curtail concealed handguns and guns in school zones etc. The Untouchables, DePalma’s best movie, even has a scene in which one of Capone’s henchmen gets thrown out of a courtroom for having a concealed weapon even with a permit signed by the mayor of Chicago.

    1. And thrown off the roof of the courthouse. Clearly that wasn’t Constitutional.

      Justified, yes — but not Constitutional.

    2. I’m not sure how much you know how common it was for people to carry guns with them all the time in the near recent past. For example, kids would ride the NYC subway with rifles for their after school shooting team practice until the 1960s.

      1. So why in The Untouchables, DePalma’s best movie, did the Capone henchman need a permit to carry a gun? And why was he thrown out of court even though he had the permit? Btw, why don’t criminals use machine guns like the mob in The Untouchables and Tony Montana in DePalma’s 3rd best movie Scarface??

        1. “why don’t criminals use machine guns “</i"

          The "over and after" sentencing laws have a lot to do with this.

          1. Bellmore says it’s because machine guns are suboptimal to use in criminal activity and that Al Capone and Tony Montana were dumb criminals for using machine guns.

            1. “The major complaints against the Thompson were its weight, inaccuracy at ranges over 50 yards (46 m), and the lack of penetrating power of the .45 ACP pistol cartridge.”

              A Colt 1911 pistol fired the same round, and while each only held eight rounds, if you weren’t worried about accuracy, you could fire one from each hand. Three perps doing that would be 48 rounds — without a barrel heating up.

              And the perps could then put their pistols back in their pockets and walk away while someone would be lugging a bulky Thompson gun with a hot barrel. Or not — but at what was about $3K in today’s money, that got expensive.

        2. I wouldn’t know why we should compare Hollywood to real life. Look up Illinois licencing system back in the 1920s and get back to me. And sometimes criminals do use machine guns. Usually they don’t, because they are more expensive, and provide no real advantage.

          1. I don’t need to because everyone knows it took national movement to go state by state and get “shall issue” laws passed in ever very pro 2A states.

            1. You’re thinking of the “Uniform Act to Regulate the Sale and Possession of Firearms.” This model law, adopted by the National Conference of Commissioners on Uniform State Laws
              and supported by the National Rifle Association, prohibited unlicensed concealed carry. I do not know if IL adopted such a law, though many states did.

              We don’t know if it was fact or fiction that a permit was required to carry a gun in IL in Chicago in 1930-31, making your whole point nothing but conjecture. I can tell you, as an IL resident that the FOID card law was passed in the 1960s, and Chicago banned handguns in 1985. I don’t think that there was a Sullivan Law in Chicago. It would take some work doing legislative history to find out. So quit wasting our time with Hollywood fiction, or find out and let us know.

        3. “So why in The Untouchables, DePalma’s best movie, did the Capone henchman need a permit to carry a gun?”

          My understanding is that Hollywood sometimes takes a bit of artistic license.

          And a lot of people seem to learn most of what they know about guns from Hollywood, which doesn’t help the quality of the discussion.

        4. Do you learn all your history from movies?

      2. In Switzerland, on Sunday evenings today, it is not uncommon for young men (far from sober) to be carrying their Army rifles through train stations as they head home from a drill weekend.

        Two very different approaches to gun safety.
        There (and with the HS rifle teams) no one would dare do anything stupid with a gun. Here, no one can *have* a gun.

  3. This is what I don’t understand:
    “Indeed, LaFrance did not involve a limitation on an individual’s fundamental right under the State Constitution to keep and bear arms, but rather, a statute safeguarding that right….”

    But how could they throw out the statute safegarding the right without throwing out the right as well, as if the officers could merely exercise their constitutional right, the statute would be moot.

    I like the result, but I don’t understand it.

  4. One other thing about the NH Legislature — they get paid $100 a year — it truly is a citizen’s legislature.

  5. Of course we should allow guns in the legislative offices and buildings and sessions. I mean, what could possibly go wrong with that?

    There are a lot of legal people that read and post on this forum. Don’t any of you walk into a court house and go through the weapons check?

    And doesn’t the prohibition of guns on airplanes violate the 2nd Amendment? The first step in the removal of the right to possess firearms is the rules which say you cannot take your gun on an airplane. That is why flight attendants can get away with serving you that crappy food they know you will not shoot them.

    1. Are you going to pay for a security detail for all 424 members of the New Hampshire legislature?!? (400 house, 24 Senate)

      Legislators, particularly conservative legislators, are being violently assaulted. Rand Paul (twice), the GOP Softball Team, and countless other examples.

      I honestly don’t blame the legislators — it can be an awful lonely ride back to some parts of NH at night, and it isn’t like it is a good idea to leave their guns in their cars. (In MA it is outright illegal.)

      1. They don’t need security details, they need babysitters.

        1. I don’t think a baby sitter would have stopped James Hodgskins the SPLC approved button man.

          1. Being arrested twice didn’t stop Michael Reinoehl.

    2. I read once that the distance between the opposing benches in the House of Commons was two sword lengths and a foot.
      Didn’t bother to check if it was true, it is just cool.

      1. Don’t know about the extra foot but both UK & Canada have red lines that debaters can’t cross, said to be two swords lengths apart.

      2. 1. What kind of sword? There is a considerable difference in blade length between a Roman gladius (18-27 inches) and a Scottish Claymore (42 inches).

        2. Speaking of cool but probably not true stories, I heard this one on a food / travel show:

        There is a restaurant in London that has been in continuous operation since Medieval times. There is a story connected to that restaurant about the origin of the term sirloin as a particular cut of beef.

        The story goes that the King of England came to the restaurant one day when they were serving a roast loin of beef. The king liked it so much that he knighted it, Sir Loin of Beef.

    3. Since this is a new law, you can of course point to several examples of things actually going wrong under the old rules? You know, the 200-odd years that NH legislators were allowed to and actually did carry guns into their own halls. No?

      And, yes, the prohibition of guns on airplanes violates the spirit of the Second Amendment. It was deemed legally permissible because you give up that right by contract when you buy the ticket. That fiction worked when the no-guns rule was established by the airline. That fiction became a lot less defensible when the government took over enforcement but now it’s “tradition” and frustratingly difficult to reverse.

    4. In Texas, people with a concealed carry license don’t have to go through metal detectors. It’s recommended to get your license if you plan on routinely visiting the capitol, just so you get to skip the line.

      Why? Because concealed weapons are allowed in the Texas Capitol Building, even on the floor of Congress itself. Since this rule was implemented, we have had zero shootings or shootouts in the Texas Legislature.

  6. Among the things I have learned at the Volokh Conspiracy is that John Wayne — when he was collecting visitors’ guns outside the saloon for safekeeping at the sheriff’s office until the owners had slept it off or left town — was a godless gun-grabbing commie.

    That, and that the gun nuts and other conservatives don’t have a prayer of reversing the tide of the culture war.

    Carry on, clingers. So far and so long as your betters permit.

      1. Was that an involuntary glimmer of insight, Matt?

        Speaking of Glimmer (Twins) . . .

        1. No your wife has been mentioning you are sun downing. That comment was pretty clear evidence. I can’t help but worry about the guys whose wives I’m deep dicking.

  7. Sounds right to me.

    I don’t have strong feeling on the merits of the separation of powers question, but unless there’s something I’m missing I didn’t find the efforts to distinguish LaFrance very persuasive. Maybe LaFrance was wrong, of course, but the language seems pretty clear-cut to me.

  8. It’s perfectly natural to feel distress when among practicing lawyers. It’s a revolting profession of subterfuge and acrimony. I’d go so far as to say that lawyers’ mental distress is just desserts for what they do.

  9. As a co-plaintiff in this case, I approve this message.

  10. Was controversy about Second Amendment Rights the first hint of safety-ism that now gives US pantie faces’ virtue signaling?

    Who washes their hands as recommended by CoViD safety-ists, where it is not visible signaling?

    Who conceals their legally carried gun, and why?

  11. I simply don’t understand this case.

    The question may be judicially reviewable, but the answer is obvious. Heller explicitly permitted restrictions on carrying firearms in sensitive public buildings, which must necessarily include a building like the seat of a state legislature. There can be no question that the state House of Representatives wins on the merits.

    Why send it back to the trial court and delay things? Assuming it is judicially reviewable, the House wins.

  12. Bet the judges think they have the inherent power to ban firearms in their own courtrooms under their own power to regulate their own proceedings. I think they are right — but so is the legislature here. Maybe the political question doctrine isn’t quite the right way to address it — I certainly think the court should be able to strike down a legislative rule that no members of an ethnic group are allowed in the capitol — but past a very minimal level of review, that should be the end of the story. E.g., SCOTUS determining Senate impeachment rules were a political question, but some Justices saying it could be different if the rule was that removal would be decided by a coin flip.

  13. Well, the (current) Illinois constitution declares a strict separation of powers between the legislative, executive, and judicial branches, then goes on to empower either house of the legislature to vote into jail anyone who persists in disrupting their deliberations

  14. This is the right decision. The political question doctrine should be used sparingly and the dicta from an earlier case is thin support. That being said, feels like a fairly reasonable restriction to the extent that restrictions in sensitive areas are Constitutional at all.

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