NH case on standard of review

"The petitioner argues that because the state constitutional right to bear arms is a fundamental right, we must review the constitutionality of RSA 159:6-b under strict scrutiny. The respondent and amicus counter that the right at issue is the right to carry a concealed weapon, which is not a fundamental right, and that, therefore, we may review the statute's constitutionality under rational basis.

We agree with the petitioner that the respondent and amicus define the right at issue too narrowly. We define the question before us as whether revoking the petitioner's license to carry a concealed weapon for just cause impermissibly infringed upon his state constitutional right to bear arms. We assume, without deciding, that the state constitutional right to bear arms is a fundamental right. Because of this assumption, we need not address the petitioner's alternative argument that requiring him to carry a loaded weapon in plain view subjected him to "stigma" and thus deprived him of a constitutionally protected liberty interest. See Short v. School Admin. Unit 16, 136 N.H. 76, 83-84 (1992); Board of Regents v. Roth, 408 U.S. 564, 572-74 (1972).

We reject the petitioner's assertion, however, that if the state constitutional right to bear arms is fundamental, we must apply strict scrutiny to our review of RSA 159:6-b. While "generally, when governmental action impinges upon a fundamental right, such matters are entitled to review under strict judicial scrutiny," Akins v. Sec'y of State, 154 N.H. 67, 71 (2006), "[n]ot every restriction of a right classified as fundamental incurs 'strict' scrutiny." Fallon, Some Confusions About Due Process, Judicial Review, and Constitutional Remedies, 93 Colum. L. Rev. 309, 315 (1993); cf. Estate of Cargill v. City of Rochester, 119 N.H. 661, 666-67 (1979) (citing cases and noting that merely because statute touches upon a right that may be fundamental for some purposes does not mean that it must be evaluated under strict scrutiny for equal protection purposes), appeal dismissed, 445 U.S. 921 (1980). "For example," in the federal arena, "the fundamental right to marry has always tolerated reasonable or de minimis burdens." Fallon, supra at 315. The United States Supreme Court also has engaged in an "ad hoc balancing" of the individual's liberty interest against the "demands of an organized society" in cases involving the fundamental right to travel, for instance. Id. at 317 (quotation omitted).

Additionally, the United States Supreme Court has explained the need to apply a test other than strict scrutiny in the context of an election law challenge as follows: "[T]o subject every voting regulation to strict scrutiny and to require that the regulation be narrowly tailored to advance a compelling state interest . . . would tie the hands of States seeking to assure that elections are operated equitably and efficiently." Burdick v. Takushi, 504 U.S. 428, 433 (1992). Thus, even though certain voting rights "are fundamental, not all restrictions imposed by the States . . . impose constitutionally suspect burdens on voters' rights . . . ." Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). Therefore, the United States Supreme Court applies a balancing test that "weigh[s] the character and magnitude of the asserted injury to the rights . . . that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration the extent to which those interests make it necessary to burden the plaintiff's rights." Burdick, 504 U.S. at 434 (quotations omitted). Under this test, "when the election law at issue subjects the plaintiff's rights to severe restrictions, the regulation must withstand strict scrutiny to be constitutional. When the election law imposes only reasonable, nondiscriminatory restrictions upon the plaintiff's rights, then the State's important regulatory interests are generally sufficient to justify the restrictions." Akins, 154 N.H. at 72 (quotations and citation omitted).

We adopted this balancing test in Akins, 154 N.H. at 72, and Libertarian Party New Hampshire v. State, 154 N.H. 376, 381 (2006). In those cases, we balanced the legislature's right to regulate elections pursuant to Article I, Section 4, Clause 1 of the Federal Constitution with the citizens' right to vote and be elected. We explained: "Simply because the [rights] under Part I, Article 11 [are] fundamental does not mean that any impingement upon [them] triggers strict scrutiny." Akins, 154 N.H. at 71.

We have also declined to apply strict scrutiny in the context of other fundamental rights. In the zoning context, for instance, we have explained that "[a]lthough property ownership rights are fundamental, zoning ordinances regulating the use of property do not receive strict scrutiny analysis, because [they] regulate property for the public good and balance the use and enjoyment of property of some residents against the use and enjoyment of other residents." Asselin v. Town of Conway, 135 N.H. 576, 578 (1992) (quotation omitted); see Boulders at Strafford v. Town of Strafford, 153 N.H. 633, 636 (2006) (applying rational basis review to substantive due process challenge to zoning ordinance).

With respect to substantive due process challenges to gun control legislation, such as RSA 159:6-b, "[n]o state's judiciary applies a heightened level of scrutiny, much less strict scrutiny." Winkler, The Reasonable Right to Bear Arms, 17 Stan. L. & Pol'y Rev. 597, 600 (2006). "[S]tate courts universally reject strict scrutiny or any heightened level of review in favor of a standard that requires weapons laws to be only 'reasonable regulations' on the [right to bear arms]." Id. at 599; see State v. Cole, 665 N.W.2d 328, 336-37 (Wis. 2003) (citing cases); see also Monks, The End of Gun Control or Protection Against Tyranny?: The Impact of the New Wisconsin Constitutional Right to Bear Arms on State Gun Control Laws, 2001 Wis. L. Rev. 249, 259 ("When a court reviews a gun control statute, the test is almost always whether the gun restriction is a 'reasonable regulation' under the state's police power."). "Even courts that have found [the right to bear arms] to be fundamental have used a reasonableness standard." Cole, 665 N.W.2d at 337; see also Robertson v. City and County of Denver, 874 P.2d 325, 329-30 (Colo. 1994) (citing cases).

We agree with every other state court that has considered the issue: strict scrutiny is not the proper test to apply when evaluating whether gun control legislation, such as RSA 159:6-b, violates substantive due process. Winkler, supra at 600. "Strict scrutiny, with its presumption of unconstitutionality, is a standard of review traditionally used in areas where courts deem any burdensome legislation to be 'immediately suspect.'" Id. at 599. Gun control legislation, by contrast, "with its legislative motivation of public safety . . . is not inherently suspicious." Id. "[T]here has been a long history of weapons regulations," which suggests that "such laws are not inherently invidious." Id. at 600.

Moreover, as numerous courts in other states have recognized with respect to their state constitutional right to bear arms, see id. at 602-03, the New Hampshire state constitutional right to bear arms "is not absolute and may be subject to restriction and regulation." State v. Smith, 132 N.H. 756, 758 (1990); see Arnold v. Cleveland, 616 N.E.2d 163, 172 (Ohio 1993). "[S]ome regulation of firearms is necessary" because of the "obvious public dangers of guns." Winkler, supra at 600. Such regulation is a proper subject of the legislature's police power. See Soucy v. State, 127 N.H. 451, 454 (1985); see also State v. White, 64 N.H. 48, 50 (1886); Carter v. Craig, 77 N.H. 200, 205 (1914) (general court's power to make "reasonable and wholesome laws" gives it the power to impose "reasonable and wholesome restrictions" on the rights of individuals).

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

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

RSA 159:6-b does not prohibit carrying weapons; it merely regulates the manner of carrying them. See Cole, 665 N.W.2d at 343; see also Klein v. Leis, 795 N.E.2d 633, 638 (Ohio 2003). Moreover, "[t]he statute has a reasonable purpose -- it protects the public by preventing an individual from having on hand a [loaded] deadly weapon of which the public is unaware." Dano v. Collins, 802 P.2d 1021, 1023 (Ariz. Ct. App. 1990), rev. dismissed, 809 P.2d 960 (Ariz. 1991). Additionally, the statute uses a reasonable means to achieve this purpose. Even without a license, individuals retain the ability to keep weapons in their homes or businesses, and to carry weapons in plain view. See RSA 159:4. While it "might be argued that [RSA 159:6-b] impede[s] the . . . self-defense [aspect of the constitutional right to bear arms], [t]his argument is countered by two considerations: the danger of [the] widespread presence of [concealed] weapons in public places and police protection against attack in these places." Cole, 665 N.W.2d at 344 (quotation omitted). In view of the benefit to public safety and in light of the lack of restriction on possession of loaded weapons in one's home or business, we conclude that RSA 159:6-b does not "subvert unduly" the self-defense aspect of the state constitutional right to bear arms. Id. (quotation omitted); see also Dano, 802 P.2d at 1022 ("The right to bear arms in self-defense is not impaired by requiring individuals to carry weapons openly.").

Therefore, we hold that, given the compelling state interest in public safety, RSA 159:6-b is a reasonable regulation of the time, place and manner in which the state constitutional right to bear arms may be exercised. See Cole, 665 N.W.2d at 339."