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Washington Sup. Court on right to arms
From the Volokh Conspiracy comes a note of yesterday's Washington Supreme Court ruling touching upn the right to arms.
At issue was, in a prosecution for an overly short-barrelled shotgun (in popular parlance, a sawed-off shotgun), the State must prove the defendant *knew* the barrel was too short, or whether it's absolute strict liability. In reasoning that the offense wasn't strict liability, the court said:
"[W]e are ... concerned that possessing a firearm can be innocent conduct. Citizens have a constitutional right to bear arms under both the federal and state constitutions. U.S. Const. amend. II; Wash. Const. art. I, ยง 24. A person may lawfully own a shotgun so long as the barrel length is more than 18 inches in length and has an overall length of less than 26 inches. RCW 9.41.190 precludes possession of a short-barreled shotgun. Moreover, the statute also criminalizes possession of a short-barreled rifle and a machine gun. The factor concerned with innocent conduct is particularly important in the case of a machine gun, which can be altered in ways not easily observable. If strict liability is imposed, a person could innocently come into the possession of a shotgun, rifle, or weapon meeting the definition of a machine gun but then be subject to imprisonment, despite ignorance of the gun's characteristics, if the barrel turns out to be shorter than allowed by law or the weapon has been altered, making it a machine gun. The legislature likely did not intend to imprison persons for such seemingly innocent conduct."
The court concluded that the State had to prove that the person knew or had reason to know that the shotgun's barrel was under 18", but it need not prove that the person knew that was the legal limit. Since the barrel here was 13" long, the court ruled it was harmless error, since any person would have known that something that size was under 18", and upheld the conviction.
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"A person may lawfully own a shotgun so long as the barrel length is more than 18 inches in length and has an overall length of less than 26 inches
Reheheheeeally? A shotgun is legal with barrel greater than 18" and OAL less than 26"? That's an interesting change-by-typo.
Seems more than a bit circular to me. That it is common knowledge that 13" is less than 18" I'll agree; however, it completely ignores the question of whether the victim knew that there was any legal limit on the length of the shotgun (or shotgun barrel), whatever the particular length requirement might be. It also assumes that the victim understands the legal method of measuring the length of a shotgun and shotgun barrel.
Piffle. Ho-hum.
Does this do anything for the Second? Maybe, only maybe. The WA Supremes seemed to recognize an individual right to keep and bear here, but that's about all.
The ruling DOES seem to establish some affirmative defenses (without saying so, so even that's doubtful) to various Second-limiting weapons charges, but it doesn't go all the way to give anyone caught up in these charges an out based on lack of prior knowledge of them.
Pro-Second score: Piffle. (Piffle is a legal analyst's term, isn't it?)
The legal maxim that "Ignorance of the Law is no excuse" has lost support as the law (and what consititues a criminal offense) has become more and more technical and obscure.
Regardless of what one thinks of the regulations, the plain fact is that any gun owner in today's environment is on clear notice that: guns are subject to fairly strict regulations; and, characteristics affecting concealability (such as barrel length) are likely to be regulated.
With this fairly clear notice, and in consideration of the fact that shotgun barrel length has been regulated for so long a time, no reasonable person can expect to effectively defend against a charge of possession of s sawed-off shotgun by claiming reasonable and innocent ignorance of the regulation.
If I were the Governor, I'd issue him a full pardon. I knew of "sawed off" shotguns since I was a kid, but I had no idea they were restricted or illegal until I was older and I started looking at the legal issues involved when I started my own collection. This guy didn't purchase the shotgun or saw the barrel himself, he came into innocent possession of it while moving his grandmother.