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Baker withdraws gun-free zoning proposal
Josey1
Member Posts: 9,598 ✭✭
Baker withdraws gun-free zoning proposal
By JOHN KOZIOL
Staff Writer
LACONIA - Citing the city's doubts about whether it has authority to pass such a measure, Police Chief William Baker has withdrawn a controversial proposal to create a gun-free zone during Bike Week.
Baker, in a prepared statement Friday, said that while both he and City Attorney Walter Mitchell agreed that the ordinance "would pass constitutional muster," Mitchell had raised other concerns that prompted him to not press on with the proposal.
A public hearing on what was formally known as "An Ordinance Amending Chapter 139 Emergencies and Chapter 145 Firearms," had been scheduled for next Wednesday at which time the City Council was expected to give it a first reading. Councils were expected to return the following day for the second, final reading.
The ordinance would have created a zone demarcated by Elm Street and points north and Parade Road and points east where the carrying, possession and transportation of firearms - whether open or concealed, licensed or unlicensed - by anyone other than law enforcement personnel would be prohibited.
The intent of the ordinance had been to "deter gun-related violence during Motorcycle Week," according to the draft language.
The prohibition would have extended to private property operating under a temporary Motorcycle Week license issued by the state or the city. Violators would have their firearms confiscated for the duration of the gun-free zone and also would have faced a fine up to $1,000.
An attorney himself, Baker in the prepared statement said he expects his clients to follow his advice and therefore expects Mitchell's clients - the city - to likewise follow the advice of their attorney.
The chief implied, however, that he did not necessarily agree with Mitchell's interpretation.
"If Mr. Mitchell does not feel that he can mount a vigorous and successful defense of this proposal then I would expect the (City) Manager, Mayor and (City) Council to follow his advice," Baker said. "This is a time for unity, not divisiveness if we want to deal effectively with Bike Week. It is in that spirit that I will withdraw the proposal."
Baker pledged to work after Bike Week for a legislative solution that will "create statutory authority for an ordinance of this type."
The proposal was legal, he said, "and I believe as a matter of public policy that municipalities should have the right to place reasonable restrictions on fundamental rights in the interest of protecting people and property."
Mitchell, in his letter Friday to City Manager Eileen Cabanel, said there were three legal questions that had to be answered about the gun-free zone ordinance: did it violate the state or federal constitutions; could the city authorize confiscation of guns "legally being carried;" and would the ordinance be preempted because "such a regulation may expressly contradict state law or run counter to the legislative intent of a statewide statutory scheme or regulation."
The proposed ordinance would withstand a challenge under the U.S. Constitution and even the New Hampshire Constitution, Mitchell wrote, but a court would strike it down on grounds that the city does not have authority to enact such legislation or that it was preempted.
New Hampshire municipalities, as "political subdivision of the state," said Mitchell, have "only the authority that is specifically granted to them by the state legislature, or that which is necessarily implied or incidental to granted authority."
The practical effect of New Hampshire not being a "home-rule" state is that the "so-called police powers of towns and cities" are significantly limited."
Therefore, Mitchell said, "our conclusion must be that if this ordinance is adopted and challenged in court, the court would rule that the city does not have the necessary authority to adopt it generally or specifically to authorize the confiscation of otherwise legal firearms."
Mitchell said even if there was authority to adopt a gun-free zone ordinance, the ordinance "could not actually be validly adopted because this area of regulation has been preempted by state law."
There is a New Hampshire law for licensing handguns and any municipal legislation "that directly interferes with the rights of individuals granted licenses under that statute would expressly contradict state law, and run counter to the legislative intent..." which is why, said Mitchell, "that preemption is a second basis on which the court would strike down the proposed ordinance."
http://www.fosters.com/citizen/news2002/June/01/lac0601b.htm
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878
By JOHN KOZIOL
Staff Writer
LACONIA - Citing the city's doubts about whether it has authority to pass such a measure, Police Chief William Baker has withdrawn a controversial proposal to create a gun-free zone during Bike Week.
Baker, in a prepared statement Friday, said that while both he and City Attorney Walter Mitchell agreed that the ordinance "would pass constitutional muster," Mitchell had raised other concerns that prompted him to not press on with the proposal.
A public hearing on what was formally known as "An Ordinance Amending Chapter 139 Emergencies and Chapter 145 Firearms," had been scheduled for next Wednesday at which time the City Council was expected to give it a first reading. Councils were expected to return the following day for the second, final reading.
The ordinance would have created a zone demarcated by Elm Street and points north and Parade Road and points east where the carrying, possession and transportation of firearms - whether open or concealed, licensed or unlicensed - by anyone other than law enforcement personnel would be prohibited.
The intent of the ordinance had been to "deter gun-related violence during Motorcycle Week," according to the draft language.
The prohibition would have extended to private property operating under a temporary Motorcycle Week license issued by the state or the city. Violators would have their firearms confiscated for the duration of the gun-free zone and also would have faced a fine up to $1,000.
An attorney himself, Baker in the prepared statement said he expects his clients to follow his advice and therefore expects Mitchell's clients - the city - to likewise follow the advice of their attorney.
The chief implied, however, that he did not necessarily agree with Mitchell's interpretation.
"If Mr. Mitchell does not feel that he can mount a vigorous and successful defense of this proposal then I would expect the (City) Manager, Mayor and (City) Council to follow his advice," Baker said. "This is a time for unity, not divisiveness if we want to deal effectively with Bike Week. It is in that spirit that I will withdraw the proposal."
Baker pledged to work after Bike Week for a legislative solution that will "create statutory authority for an ordinance of this type."
The proposal was legal, he said, "and I believe as a matter of public policy that municipalities should have the right to place reasonable restrictions on fundamental rights in the interest of protecting people and property."
Mitchell, in his letter Friday to City Manager Eileen Cabanel, said there were three legal questions that had to be answered about the gun-free zone ordinance: did it violate the state or federal constitutions; could the city authorize confiscation of guns "legally being carried;" and would the ordinance be preempted because "such a regulation may expressly contradict state law or run counter to the legislative intent of a statewide statutory scheme or regulation."
The proposed ordinance would withstand a challenge under the U.S. Constitution and even the New Hampshire Constitution, Mitchell wrote, but a court would strike it down on grounds that the city does not have authority to enact such legislation or that it was preempted.
New Hampshire municipalities, as "political subdivision of the state," said Mitchell, have "only the authority that is specifically granted to them by the state legislature, or that which is necessarily implied or incidental to granted authority."
The practical effect of New Hampshire not being a "home-rule" state is that the "so-called police powers of towns and cities" are significantly limited."
Therefore, Mitchell said, "our conclusion must be that if this ordinance is adopted and challenged in court, the court would rule that the city does not have the necessary authority to adopt it generally or specifically to authorize the confiscation of otherwise legal firearms."
Mitchell said even if there was authority to adopt a gun-free zone ordinance, the ordinance "could not actually be validly adopted because this area of regulation has been preempted by state law."
There is a New Hampshire law for licensing handguns and any municipal legislation "that directly interferes with the rights of individuals granted licenses under that statute would expressly contradict state law, and run counter to the legislative intent..." which is why, said Mitchell, "that preemption is a second basis on which the court would strike down the proposed ordinance."
http://www.fosters.com/citizen/news2002/June/01/lac0601b.htm
"If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege." - Arkansas Supreme Court, 1878