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.


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.