2006-426, EDWARD J. BLEILER v. CHIEF, DOVER POLICE DEPT.

The petitioner, Edward J. Bleiler, appeals from the order of

brief and orally), for the State, as amicus curiae. Kelly A. Ayotte, attorney general (Elizabeth J. Baker, attorney, on the

on the brief and orally), for the respondent. Donahue, Tucker & Ciandella, PLLC, of Portsmouth (Christopher L. Boldt

the brief and orally), for the petitioner. to press. Errors may be reported by E-mail at the following address: Douglas, Leonard & Garvey, P.C., of Concord (Richard J. Lehmann on

editorial errors in order that corrections may be made before the opinion goes No. 2006-426 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Dover District Court Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as speak to investigators to explain his actions. p. 2 carry a concealed weapon to the meeting; and (3) the petitioner refused to

concern about the petitioner’s past actions and expectations that he would weapon [constituted] just cause to revoke his license.”

for vagueness. This appeal followed. Constitution and Part I, Article 2-a of the State Constitution, and was not void and bear arms guaranteed by the Second Amendment to the Federal license had been revoked, RSA 159:6-b, did not impinge upon his right to keep The district court also ruled that the statute under which the petitioner’s

petitioner does not challenge these factual findings on appeal. association had hired a police officer to attend its next meeting because of See RSA 159:6-b. The his weapon in a manner that would cause concern; (2) a local neighborhood investigation as to his suitability to retain his license to carry a concealed let Smith & Wesson handle it” when referring to disputes, and had displayed the press, his manner and conduct, and his failure to cooperate in the police had previously made improper comments about using his firearm, such as “we behavior, his lying to others about that behavior, his misleading statements to RSA 159:6-c (2002). The trial court found that the petitioner’s “reckless which affirmed it following a one and one-half day evidentiary hearing. See The petitioner appealed the revocation of his license to the district court,

“unusual and heated.”

city council meeting about the respondent’s contract. the incident. He also told him that the petitioner planned to attend the next letter explained that the petitioner’s license was being revoked because: (1) he in the office. The city attorney called the respondent and informed him about in the city attorney’s office was “unsafe and inappropriate.” In addition, the New Hampshire law” and that the way that the petitioner handled his weapon manner which may cause concern to another unless there is justification under proper handling of firearms mandates that a weapon not be displayed in any weapon. See RSA 159:6-b (2002). The letter informed the petitioner that “[t]he city attorney’s paralegal overheard the conversation and described it as because the petitioner was “not suitable at this time” to carry a concealed had been made upon him several years ago by organized crime members. The he had decided to revoke the petitioner’s license to carry a concealed firearm desk as a “prop” in a story he was telling, which involved threats that allegedly On March 31, 2006, the respondent notified the petitioner by letter that

worried, particularly after learning that the petitioner had had a loaded weapon After the petitioner left, the city attorney spoke to his paralegal, who felt

the petitioner removed a loaded pistol from his pocket and placed it on the several city employees, including the city attorney. During the conversation, p. 3 3

obtain permits to carry loaded, concealed weapons. See RSA 159:4 (2002). RSA 159:6-b is part of a statutory scheme that requires individuals to under the State Constitution to keep and bear arms. property and the state.” This provision was added to the constitution in 1982. notice of appeal. the right to keep and bear arms in defense of themselves, their families, their Part I, Article 2-a of the State Constitution provides: “All persons have

it alone, citing federal cases for guidance only. Id. petitioner argues only under the State Constitution, we base our decision upon declare it invalid except upon inescapable grounds.” his notice of appeal, but did not brief. Id. Because the “In reviewing a statute, we presume it to be constitutional and we will not respondent, however, that the petitioner has waived all issues that he raised in review de novo. Gonya v. Comm’r, N.H. Ins. Dep’t, 15 p. 3 3 N.H. 521, 524 (2006). arts. 2-a, 12. The constitutionality of a statute is a question of law, which we

constitutional right to substantive due process because it impairs his right The petitioner first argues that RSA 159:6-b violates his state waived all of his appeal arguments by not including them as questions in his

2 p. 3 30 (2003).

he has not waived his arguments concerning RSA 159:6-b. We agree with the future litigation may be avoided. that the reference to RSA 159:6-c was a typographical error and conclude that 159:6-b, upon which his brief focuses. We accept the petitioner’s assertion questions in the petitioner’s notice of appeal concern RSA 159:6-c, not RSA

See Sup. Ct. R. 16( p. 3 3)(b). The respondent observes that the

We next address whether to dismiss this appeal because the petitioner

Id. at 692-9 p. 3 3. outcome of this controversy to justify an exception to the doctrine of mootness.

the merits may be justified where there is a pressing public interest involved, or rules; it is regarded as one of convenience and discretion. Id. A decision upon 690, 692 (2006). However, the question of mootness is not subject to rigid become academic. Sullivan v. Town of Hampton Bd. of Selectman, 15 p. 3 3 N.H. one. The doctrine of mootness is designed to avoid deciding issues that have concealed weapon expired as of January 2007, and he has not reapplied for argues that the appeal is moot because the petitioner’s permit to carry a We first address whether to dismiss this appeal as moot. The respondent

p. 4 purposes regardless of the purpose for which it was originally

159:6-b under strict scrutiny. The respondent and proper purpose. The license shall be valid for all allowable Hunting, target shooting, or self-defense shall be considered a purpose, and that the applicant is a suitable person to be licensed. fear injury to the applicant’s person or property or has any proper

license.”

right at issue is the right to carry a concealed weapon, which is not a

arms is a fundamental right, we must review the constitutionality of RSA The petitioner argues that because the state constitutional right to bear the issuing authority. licensee is entitled to a post-suspension or post-revocation hearing in front of injunctive relief.” RSA 159:6-e (2002). revolver . . . , if it appears that the applicant has good reason to reason therefore is given to the licensee.” RSA 159:6-b, I. If requested, the superior court of the county in which the alleged violation occurred for [RSA chapter 159 (2002 & Supp. 2006)] by a licensing entity may petition the Additionally, “[a]ny person aggrieved by a violation of the licensing sections of

Kozerski v. Steere, 121 N.H. 469, 472 (1981) (quotation omitted).

and make its own determination [upon] whether the petitioner is entitled to a 159:6-c. “[T]he statute contemplates that the district court . . . hear evidence district court for a hearing upon whether he or she is entitled to a license. RSA loaded pistol or revolver has been suspended or revoked” may also petition the a loaded pistol or revolver has been denied . . . or whose license to carry a

revolvers as merchandise from this license requirement. applicant authorizing the applicant to carry a loaded pistol or just cause, provided written notice of the suspension or revocation and the upon application of a nonresident, shall issue a license to such Licenses to carry concealed weapons may be “suspended or revoked for resident of such town or city, or the director of state police, . . .

statutory scheme exempts the regular and ordinary transport of pistols or enforcement personnel, court security and members of the armed services, the place of business, without a valid license.” In addition to exempting law city or some full-time police officer . . . , upon application of any The selectmen of a town or the mayor or chief of police of a

provides: Licenses are issued pursuant to RSA 159:6 (Supp. 2006), which

since at least 1923. See Laws 1923, 118:4. New Hampshire has required some form of license to carry a concealed weapon

in any vehicle or “concealed upon his person, except in his dwelling, house or RSA 1 p. 5 59:4 makes it a crime for an individual to carry a loaded pistol or revolver are operated equitably and efficiently.”

state interest . . . would tie the hands of States seeking to assure that elections to require that the regulation be narrowly tailored to advance a compelling challenge as follows: “[T]o subject every voting regulation to strict scrutiny and

“weigh[s] the character and magnitude of the asserted injury to the rights . . . Therefore, the United States Supreme Court applies a balancing test that on voters’ rights . . . .” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). restrictions imposed by the States . . . impose constitutionally suspect burdens (1992). Thus, even though certain voting rights “are fundamental, not all

strict scrutiny for equal protection purposes), fundamental for some purposes does not mean that it must be evaluated under apply a test other than strict scrutiny in the context of an election law Additionally, the United States Supreme Court has explained the need to constitutionally protected liberty interest. in plain view subjected him to “stigma” and thus deprived him of a (quotation omitted). petitioner’s alternative argument that requiring him to carry a loaded weapon in cases involving the fundamental right to travel, for instance. Id. at 317 strict judicial scrutiny,” the individual’s liberty interest against the “demands of an organized society” impinges upon a fundamental right, such matters are entitled to review under The United States Supreme Court also has engaged in an “ad hoc balancing” of to our review of RSA 1 p. 5 59:6-b. While “generally, when governmental action has always tolerated reasonable or de minimis burdens.” Fallon, supra at 315. (1980). “For example,” in the federal arena, “the fundamental right to marry

noting that merely because statute touches upon a right that may be Cargill v. City of Rochester, 119 N.H. 661, 666-67 (1979) (citing cases and Constitutional Remedies, 93 Colum. L. Rev. 309, 31 p. 5 5 (1993); cf. Estate of Fallon, Some Confusions About Due Process, Judicial Review, and every restriction of a right classified as fundamental incurs ‘strict’ scrutiny.” fundamental right. Because of this assumption, we need not address the Akins v. Sec’y of State, 154 N.H. 67, 71 (2006), “[n]ot assume, without deciding, that the state constitutional right to bear arms is a impermissibly infringed upon his state constitutional right to bear arms. We revoking the petitioner’s license to carry a concealed weapon for just cause constitutional right to bear arms is fundamental, we must apply strict scrutiny We reject the petitioner’s assertion, however, that if the state

(1972). 136 N.H. 76, 83-84 (1992); Board of Regents v. Roth, 408 U.S. p. 5 564, 572-74

right at issue too narrowly. We define the question before us as whether We agree with the petitioner that the respondent and amicus define the

constitutionality under rational basis. fundamental right, and that, therefore, we may review the statute’s p. 6 6

bear arms].” that requires weapons laws to be only ‘reasonable regulations’ on the [right to

and County of Denver, 874 P.2d 325, 329-30 (Colo. 1994) (citing cases). level of scrutiny, much less strict scrutiny.” Winkler, reasonableness standard.” Cole, p. 6 665 N.W.2d at 337; see also Robertson v. City have found [the right to bear arms] to be fundamental have used a ‘reasonable regulation’ under the state’s police power.”). “Even courts that a gun control statute, the test is almost always whether the gun restriction is a on State Gun Control Laws, 2001 Wis. L. Rev. 249, 259 (“When a court reviews Tyranny?: The Impact of the New Wisconsin Constitutional Right to Bear Arms (citing cases); see also Monks, The End of Gun Control or Protection Against

Id. at 599; see State v. Cole, p. 6 665 N.W.2d 328, 336-37 (Wis. 2003)

reject strict scrutiny or any heightened level of review in favor of a standard Bear Arms, 17 Stan. L. & Pol’y Rev. 597, p. 6 600 (2006). “[S]tate courts universally

legislation, such as RSA 159: p. 6 6-b, “[n]o state’s judiciary applies a heightened With respect to substantive due process challenges to gun control

triggers strict scrutiny.” zoning ordinance). (200 p. 6 6) (applying rational basis review to substantive due process challenge to omitted); see Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 636 residents.” Asselin v. Town of Conway, 135 N.H. 576, 578 (1992) (quotation of property of some residents against the use and enjoyment of other [they] regulate property for the public good and balance the use and enjoyment regulating the use of property do not receive strict scrutiny analysis, because “[a]lthough property ownership rights are fundamental, zoning ordinances fundamental rights. In the zoning context, for instance, we have explained that We have also declined to apply strict scrutiny in the context of other

Article 11 [are] fundamental does not mean that any impingement upon [them] and be elected. We explained: “Simply because the [rights] under Part I, the plaintiff’s rights.” Section 4, Clause 1 of the Federal Constitution with the citizens’ right to vote consideration the extent to which those interests make it necessary to burden balanced the legislature’s right to regulate elections pursuant to Article I, Party New Hampshire v. State, 154 N.H. 37 p. 6 6, 381 (2006). In those cases, we We adopted this balancing test in Akins, 154 N.H. at 72, and Libertarian

(quotations and citation omitted). generally sufficient to justify the restrictions.” Akins, 154 N.H. at 72 upon the plaintiff’s rights, then the State’s important regulatory interests are When the election law imposes only reasonable, nondiscriminatory restrictions restrictions, the regulation must withstand strict scrutiny to be constitutional. this test, “when the election law at issue subjects the plaintiff’s rights to severe

the State as justifications for the burden imposed by its rule, taking into that the plaintiff seeks to vindicate against the precise interests put forward by p. 7 7

p. 7 795 N.E.2d 633, 638 (Ohio 2003). Moreover, “[t]he statute has a reasonable manner of carrying them. See Cole, 665 N.W.2d at 343; see also Klein v. Leis, RSA 159:6-b does not prohibit carrying weapons; it merely regulates the

reasonable limitation upon the state constitutional right to bear arms. constitutional right to bear arms. We conclude that RSA 159:6-b is a the public, RSA 159:6-b goes too far and unreasonably impinges upon the legislature’s authority to enact legislation for the health, safety and welfare of Applying this test, we now examine whether, in balancing the

individuals). concluded the law could promote the public welfare.” Id. the power to impose “reasonable and wholesome restrictions” on the rights of whether any conceivable rationale exists under which the legislature may have “focuses on the balance of the interests at stake, rather than merely on N.W.2d at 338. Such a test differs from traditional rational basis because it at issue is a “reasonable” limitation upon the right to bear arms. Cole, 665 legislation. See Monks, supra at 259. This test analyzes whether the statute correct test for evaluating a substantive due process challenge to gun control numerous courts from other jurisdictions that the reasonableness test is the hazards involved with guns, see Cole, 665 N.W.2d at 344, we agree with In light of the compelling state interest in protecting the public from the respect to their state constitutional right to bear arms,

inherently invidious.” (1914) (general court’s power to make “reasonable and wholesome laws” gives it also State v. White, 64 N.H. 48, 50 (1886); Carter v. Craig, p. 7 77 N.H. 200, 205 public safety . . . is not inherently suspicious.” legislature’s police power. See Soucy v. State, 127 N.H. 451, 454 (1985); see guns.” Winkler, supra at 600. Such regulation is a proper subject of the regulation of firearms is necessary” because of the “obvious public dangers of 758 (1990); see Arnold v. Cleveland, 616 N.E.2d 163, 172 (Ohio 1993). “[S]ome may be subject to restriction and regulation.” State v. Smith, 132 N.H. 756, New Hampshire state constitutional right to bear arms “is not absolute and

Moreover, as numerous courts in other states have recognized with

history of weapons regulations,” which suggests that “such laws are not

599. Gun control legislation, by contrast, “with its legislative motivation of courts deem any burdensome legislation to be ‘immediately suspect.’” Id. at unconstitutionality, is a standard of review traditionally used in areas where Winkler, supra at 600. “Strict scrutiny, with its presumption of control legislation, such as RSA 159:6-b, violates substantive due process. strict scrutiny is not the proper test to apply when evaluating whether gun We agree with every other state court that has considered the issue: p. 8 8

petitioner’s claim under the State Constitution,

arbitrary and discriminatory enforcement.” what conduct it prohibits; second, it may authorize and even encourage

statute’s constitutionality.” State v. MacElman, 154 N.H. 304, 307 (2006). bears a heavy burden of proof in view of the strong presumption favoring a N.H. 132, 133-34 (1973). “A party challenging a statute as void for vagueness sufficiently limit the discretion of the licensing authority. We first analyze the constitutional guarantee of procedural due process. that the phrase “just cause” as used in RSA 159:6-b is undefined and does not See State v. Albers, 113 420, 423 (2003). A statute that fails under either test violates the Federal Constitution and Part I, Article 15 of the State Constitution. He argues

fail to provide the kind of notice that will enable ordinary people to understand grounds. See City of Chicago v. Morales, 527 U.S. 41, 56 (1999). “First, it may Vagueness may invalidate a statute for either of two independent

which the state constitutional right to bear arms may be exercised. 231 (19 p. 8 83), citing federal authority for guidance only, id. at 233. safety, RSA 159:6-b is a reasonable regulation of the time, place and manner in State v. Ball, 124 N.H. 226,

facially and as applied under the Fifth and Fourteenth Amendments to the The petitioner next asserts that RSA 159:6-b is void for vagueness both

these places.” 665 N.W.2d at 339.

Therefore, we hold that, given the compelling state interest in public

weapons openly.”). weapons in their homes or businesses, and to carry weapons in plain view. to bear arms in self-defense is not impaired by requiring individuals to carry this purpose. Even without a license, individuals retain the ability to keep bear arms. Id. (quotation omitted); see also Dano, p. 8 802 P.2d at 1022 (“The right not “subvert unduly” the self-defense aspect of the state constitutional right to loaded weapons in one’s home or business, we conclude that RSA 159:6-b does benefit to public safety and in light of the lack of restriction on possession of

Cole, 665 N.W.2d at 344 (quotation omitted). In view of the

[concealed] weapons in public places and police protection against attack in countered by two considerations: the danger of [the] widespread presence of self-defense [aspect of the constitutional right to bear arms], [t]his argument is RSA 159:4. While it “might be argued that [RSA 159:6-b] impede[s] the . . .

p. 9 960 (Ariz. 1991). Additionally, the statute uses a reasonable means to achieve Collins, p. 8 802 P.2d 1021, 1023 (Ariz. Ct. App. 1990), rev. dismissed, 809 P.2d hand a [loaded] deadly weapon of which the public is unaware.” Dano v. purpose – it protects the public by preventing an individual from having on 9

An individual may also be unsuitable if he or she has a “significant and issuing authority to unsuitable for the purposes of obtaining a license to carry a concealed weapon. whatsoever to permit-holders apprising them of what conduct might lead the

licensee’s status as an unsuitable person.

statutory scheme.

(2002) and RSA 15 p. 9 9:3-a (2002) provide that certain convicted felons are argues that RSA 159:6-b is invalid because it “provides absolutely no guidance hunting, target shooting and self-defense are proper purposes. conduct it proscribes and because it allows for arbitrary enforcement. He Id. RSA 159:3

cause” refers to a licensee’s use of a weapon for an improper purpose or to the

We interpret the phrase “just cause,” however, in the context of the entire

entirely on the opinion of the issuing authority or reviewing court.” phrase “just cause” is “completely without objective standards and rel[ies]

challenge RSA 15 p. 9 9:6-b facially under both the State and Federal Constitutions. statute is applied”). We assume, without deciding, that the petitioner may criminal statute at issue], . . . the vagueness claim must be evaluated as the a person of ordinary intelligence a reasonable opportunity to understand the that the phrase “just cause” in RSA 159:6-b is vague because it fails to provide applied to party challenging it, it is not facially invalid). The petitioner asserts show that it is vague in all of its applications; if statute is sufficiently clear as statute does not “reach constitutionally protected conduct,” challenger must Estates v. Flipside Hoffman Estates, 455 U.S. 489, 497, 500 (1982) (where Strafford, 153 N.H. at 641-42 (discussing equal protection). But see Hoffman We address the petitioner’s facial challenge first. Cf. Boulders at

accepted usage.” may be read in the context of related statutes, prior decisions, or generally

453, 467 (1 p. 9 991) (because “First Amendment freedoms are not infringed by [the right. See MacElman, 154 N.H. at 307; cf. Chapman v. United States, 500 U.S. a facial challenge to RSA 159:6-b because it does not implicate a fundamental English words and phrases there lurk uncertainties.” The respondent and the amicus assert that the petitioner may not bring precision. Many statutes will have some inherent vagueness, for in most a criminal statute, is at issue. argued that our analysis should be different when a licensing statute, and not while the analysis is different under state and federal law, neither party has

In re Justin D., 144 N.H. 450, 453-54 (1 p. 9 999). We note that,

“need not be contained in the statute itself, but rather, the statute in question Porelle, 14 p. 9 9 N.H. at 423. Moreover, the specificity required by due process certainty required. Grayned v. City of Rockford, 408 U.S. 104, 110 (1972); see 48, 49-50 (1975) (quotation and brackets omitted). Nor is mathematical

statute which a reviewing court believes could have been drafted with greater The “prohibition against excessive vagueness does not invalidate every proscribed by the statute.” p. 10 gave him a “reasonable opportunity to know that [his] particular conduct was

whether a statute is vague as applied to the petitioner, we examine whether it

and could result in the revocation of his license to carry a concealed weapon. place to tell a story about organized crime threats was not a proper purpose had a reasonable opportunity to know that using a loaded weapon in a public knew the proper procedure for handling a loaded weapon and failed to follow it,

revocation of his or her license to carry loaded weapons concealed. notice to a person of ordinary intelligence of the conduct that may result in the We next address the petitioner’s as-applied challenge. To determine

face. Accordingly, we hold that RSA 159:6-b is not unconstitutionally vague on its F. Supp. 2d 1035, 1037 (D. Minn.), aff’d, 74 Fed. Appx. 676 (8th Cir. 2003). is acceptable.” MacElman, 154 N.H. at 309; see Iverson v. City of St. Paul, 240 “provides such minimal guidelines . . . that the degree of judgment [it requires] of the term “suitable person,” discussed above, we conclude that RSA 159:6-b statutory limitations on the phrase “proper purpose” and the judicial narrowing MacElman, 154 N.H. at 308; Lillios, 735 F. Supp. at 47. In light of the

purpose of the ordinance, which was to establish provisions for the orderly and provisions in the same statutory scheme, as well as our prior decisions, gives “good cause and sufficient reason.” We interpreted this phrase in light of the The plain language of RSA 159:6-b, read in conjunction with other

track ordinance). selectmen will exercise their discretion consistent with the purpose of the race selectmen in assessing a request for a race track permit; it is implied that the [a permitting authority] will make its decision.” vagueness because it does not specify the exact standards required by the Effingham, 148 N.H. 121, 132-33 (2002) (race track ordinance is not void for circumstances that furthered those goals. Id.; see also Dow v. Town of context, therefore, we held that “good cause and sufficient reason” meant any

upheld a dump ordinance that permitted town selectmen to issue a license for Gravel, Inc. v. Town of Londonderry, 121 N.H. 501, 505 (1981), for instance, we 146 N.H. 430, 435 (2001) (quotations and brackets omitted). In Derry Sand &

because it does not precisely apprise [an individual] of the standards by which Contrary to the petitioner’s assertions, “[a] law is not necessarily vague

Justices of the New Hampshire Dist. Court, 735 F. Supp. 43, 47 (D.N.H. 1990). improper purposes or are unsuitable to have such licenses. See Lillios v. licensees that their licenses may be revoked if they use their weapons for and our prior decisions, therefore, the phrase “just cause” adequately warns 683 (2004). In conjunction with other provisions in the same statutory scheme unexplained arrest history.” Silverstein v. Town of Alexandria, 150 N.H. 679, p. 11 11

invitation to declare RSA 159:6-b unconstitutional.

under the State Constitution.

than does the State Constitution under these circumstances,

DUGGAN, GALWAY and HICKS, JJ., concurred.

For all of the above reasons, therefore, we decline the petitioner’s

N.H. at 423, we reach the same result under the Federal Constitution as we do

As the Federal Constitution offers the petitioner no greater protection

to the petitioner. We hold, therefore, that RSA 159:6-b was not impermissibly vague as applied