Below is my notice of appeal to the New Hampshire Supreme Court, regarding concealed carry of a loaded handgun. The local police department here refused to issue me a concealed carry permit, even though I have (and they alleged) no disqualifying condition. I appealed that decision to the local court, and appealed that court's decision to the NH Supreme Court (a process that requires an up-front non-refundable payment by the moving party of $120). My appeal was based principally on the constitution of the State of New Hampshire, which contains the following provision in Part 1 Article 2a (ratified 1982-Dec-1):
All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.
On 2001-May-3, the Court responded, in relevant part, as follows: ``Notice of appeal declined. [...] No justice who considered this matter voted to accept this appeal. [...] Brock, C.J., and Broderick, Nadeau, Dalianis, and Duggan, J.J., concurred.'' No rationale was given; the Court's decision was an arbitrary, unaccountable exercise of discretion by unelected committee appointees.
Here is the key text of my notice of appeal, as received by the Court on 2001-Feb-7, with citations converted to hyperlinks:
Carrying arms in some manner is a right plainly guaranteed by NH const. Part 1 Article 2a, and US const. Amendment 2, since otherwise the term ``bear'' appearing in both would be wholly without effect. The only logical alternative to concealed carry is open carry. Since open carry subjects an individual to ``manifestations of public hostility'' (NAACP v. Alabama, 357 U.S. 449, 462 (1958)), a regulatory scheme is unconstitutional if it restricts concealed carry to a population different than that to which carry in general is constitutionally restricted. By the standard of NAACP v. Alabama, such a scheme is furthermore unconstitutional if (as is inherent to a licensing requirement) it requires an individual to submit to registration (de jure or de facto) as an individual desiring or intending to practice concealed carry. See also McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995), ``The decision in favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve as much of one's privacy as possible.''.
A direct constitutional review under NH const. Part 1 Article 2a, by its plain meaning (or equivalently, under Amendment 2 of the US constitution) forbids a regulatory scheme like that described by § 159:4 and § 159:6. The article guarantees a right to bear arms without qualification, whereas the statutory scheme clearly contemplates and purports to authorize a construal of concealed carry and carry in an automobile not as rights, but as privileges.
The scienter standard invalidates § 159:4 as written (Colautti v. Franklin, 439 U.S. 379, 395 (1979)). It is impossible to know whether a particular manner of carrying a handgun qualifies as concealed: the standards and visual acuity of the state agent making the determination are clearly decisive, yet are unknowable as a practical surety by those subject to the statute. Placement of a handgun within an open holster (so that the handgun itself is fully obscured) might be viewed as concealment. Moreover, as a result of scrupulous efforts to avoid charges under § 159:4, an individual could plausibly find himself charged under § 644:2 (``Disorderly Conduct''). Thus the scheme is ``a trap for those who act in good faith'' (United States v. Ragen, 314 U.S. 513, 524 (1942)). The effect of these epistemological predicaments is to exert a chilling effect on the meaningful and legitimate exercise of Part 1 Article 2a rights. This is impermissible, in the same way that a scheme that chills meaningful and legitimate exercise of free speech rights is impermissible (New Hampshire Right to Life Political Action Comm. v. Gardner 99 F.3d 8, 13-14 (lst Cir. 1996)).
A law that criminalizes concealment on one's person per se is inherently suspect, since as a practical matter it is largely insusceptible to enforcement. No warrantless search can be conducted without probable cause, yet concealment by its plain meaning definitionally precludes probable cause, absent an informer or other oracular or a priori information. Moreover, an anonymous tip does not constitute probable cause (Florida v. J. L., ____ U.S. ____ (No. 98-1993) (2000)). Automobiles are not attenuated in the applicability of NH constitution Part 1 Article 19, so the epistemological paradox is complete (State v. Sterndale, 139 N.H. 445, 447, 656 A.2d 409,410 (1995)).
By the rule of lenity, the term ``suitable person'' in § 159:6 must be interpreted so that only bases of decision decisively enumerated by statute can be considered (United States v. Thompson/Center Arms Co., 504 U.S. 505, 517-518 (1992)). Since (presumably) the underlying purpose of the scheme is to reduce criminality (reducing the incidence of concealed carry per se is clearly not a valid state interest), interpreting it in a manner that enhances the vulnerability of non-criminals to predation by emboldened criminals is impermissible (Marques v. Fitzgerald, 99 F.3d 1, 5 (1st Cir. 1996)).
The substantive due process and equal protection standards (under US constitution Amendment 14) forbid an arbitrary, capricious, or ad hoc exercise of authority in a decision-making process affecting a fundamental or ``sensitive'' right, since such an exercise cannot possibly withstand strict scrutiny (Griswold v. Connecticut, 381 U.S. 479, 503-504 (1965)). Armed self-defense is a vitally sensitive liberty, recognized and protected explicitly by the constitution. A regulatory scheme that creates a privileged class under color of law (a class benefiting specially from the law), but not by the letter of the law, cannot meet the standard of equal protection: Bush v. Gore, 531 U. S. ___ (2000), ``the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise.''.
New Hampshire constitution, Part 1 Articles 22 and 32, or equivalently, US constitution, Amendment 1, establish a freedom of association, which includes the freedom to keep those associations private. (NAACP v. Alabama, 357 U.S. 449, 462 (1958)). Moreover, a right of association is likewise a right to refrain from association. Because the licensing requirement directly impacts exercise of a constitutionally recognized fundamental right, the demand by the office of the director of state police for character references as a precondition for issuing a license is unconstitutional prima facie, whether or not the specific regulated conduct is recognized to be a right in whole or in part. This is particularly clear since no statutory authority to impose such a requirement is evident in the statute that describes the licensing process. Furthermore, the association disclosure requirement is impermissible by dint of its chilling effect (Griswold v. Connecticut, 381 U.S. 479, 482-483 and NH Right to Life PAC v. Gardner 99 F.3d 8, 13-14). It is significant that police interviews of the references are conducted, since this greatly intensifies the chilling and stigmatizing effect.
Petitioner is currently restrained, under the regulatory scheme challenged in this appeal, from practicing a vital method of bodily self-defense, a method insusceptible to substitution or compensation.
He presents the court with an opportunity to affirm that the state must recognize self-defense as a fundamental individual right, and in particular, that it must tolerate (if not esteem) the means of self-defense discussed herein.