By Eugene Volokh
The case is Ex parte Roque Cesar Nido Lanausse, 2011 WL 1563927, and here’s what Prof. Bob Cottrol (George Washington University School of Law) reports about it (paragraph breaks added):
This was a three judge panel at the intermediate appellate court. One judge dissented, but Westlaw did not publish the dissent. Appellate Court is essentially ruling on statutory grounds and on Constitutional grounds.
Court says that the Commonwealth government’s position is that having arms is a privilege and not a right. Court rejects this [first] on grounds that licensing statute states that fear for safety is a valid reason for getting a license to carry and that trial court did not have authority to specify criteria other than fear on part of applicant. Fear on part of applicant is essentially determined by applicant. If I am reading decision correctly (and my Spanish is imperfect) intermediate appellate court is essentially converting Puerto Rico’s statute into a shall issue statute through its reading of statute, i.e. if applicant state’s that he is in fear for his safety, permit to carry must be issued, as long as individual is not a prohibited person.
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Second this Court is adopting a reading of Heller and McDonald as giving constitutional protection to a right to bear or carry. Goes into Scalia’s sensitive places as evidence that some places are not sensitive and therefore there is a right to carry in those places. Court goes on to incorporate second amendment in Puerto Rico. Court is using early 20th century insular cases (only rights that are fundamental apply to inhabitants of non-incorporated territories — I actually have strong questions about whether or not the insular cases should be read as applying to Puerto Rico in the modern context since Puerto Ricans have been US citizens since 1917 and people born in Puerto Rico were given native born citizen status in the early 40s, but that’s another story). In any event court says second amendment is fundamental right of American citizens and that includes residents of Puerto Rico. Court remanded case to trial court for action consistent with intermediate trial court’s opinion.
Couple of points as to where this is likely to go in future. As decision is it seems to me to be unreviewable in federal [district or appellate] court, because the statutory interpretation gives independent and adequate Commonwealth grounds for the decision. It will probably be appealed to the Supreme Court of Puerto Rico. If Nido-Lanausse prevails in Puerto Rico’s Supreme Court that should be the end of it. If Commonwealth prevails, he potentially could petition for cert to US Supreme Court.
This potentially could be a good case for second amendment right to carry. Appellant has sterling record, medical doctor, general in the National Guard, probable service in Iraq or Afghanistan, relatively high crime rate in Puerto Rico. Anyhow we have a US court deciding that Heller and McDonald protect a right to carry.
If anyone has more information on the case, I’d love to see it. I should note that, while I have a Westlaw download of the Spanish-language original containing the 2011 WL 1563927 citation, I can’t seem to download the case myself in Westlaw using that citation; it might be unavailable given UCLA’s Westlaw subscription. Nor do I know of any place online that has the case available for free, or in a way that would leave one contractually free to repost it. If anyone has a pointer to such a location — or a PDF of the opinion itself that I can post — I’d love to hear about it.