A Good Win For The 2A In The Northern Mariana Islands

Strategic civil rights litigation involves building upon prior successes. This is how the NAACP Legal Defense Fund dismantled segregation and how the Second Amendment Foundation is going about winning back our Second Amendment rights. Wins in the Heller and McDonald cases were the predicates to winning in other cases like Ezell v. Chicago and Moore v. Madigan.

Likewise, the win by David Sigale and SAF in Radich v. DeLeon Guerrero in the District Court for the Northern Mariana Islands is what allowed Paul Murphy to succeed in his case there. Radich overturned the ban on handguns and handgun ammo, the ban on issuing Weapons Identification Cards (WIC) to permanent resident aliens, and the implied prohibition on issuing WICs for self or family defense.

Paul Murphy is a former US Army Ranger who relocated to the Northern Mariana Islands in 2007 after serving in Iraq and Afghanistan. He brought with him certain firearms including a WASR 63 and a Glock 19 which were confiscated upon his arrival along other ammo. The Northern Mariana Islands also had a prohibition against any center-fire rifles in a caliber greater than .223.

Mr. Murphy, acting as his own attorney or pro se, challenged a number of firearms regulations of the Northern Mariana Islands in a case brought in December 2014. He was allowed to amend his complaint after the Radich win. In particular, Mr. Murphy challenged the following:

(1) the requirement that he obtain a license and register his
weapons; (2) the restrictions on how he may store his weapons at home; (3) the ban on large
capacity magazines (“LCMs”); (4) the ban on rifles in calibers above .223; (5) the ban on “assault
weapons”; (6) the ban on transporting operable firearms; and (7) the $1,000 excise tax imposed on

The $1000 excise tax was enacted by the CNMI legislature after the loss in the Radich case. Their aim was to make it exceedingly expensive to own a handgun.

Mr. Murphy and the Northern Mariana Islands filed cross motions for summary judgment. This can be done when the facts are not in dispute and the only dispute is over the law itself.

In her decision released on September 28th, Chief Judge Ramona V. Manglona each of these challenges and used a two-part test to see whether they were valid. The first part was to see if the requirement impacted the Second Amendment and the second part was did the government have either a substantial or compelling interest in the requirement. For the most part, her 55-page opinion relied upon intermediate scrutiny.

In the end, both sides won something but overall Mr. Murphy won more.

Based on the foregoing, Murphy’s motion for summary judgment and the
Commonwealth’s cross-motion for summary judgment are granted in part and denied in part. In
particular, judgment is entered in favor of the Commonwealth and against Murphy on the
following issues:

a. Licensing individuals who seek to possess firearms under 6 CMC § 2204;
b. Storage restrictions on firearms in the home under 6 CMC § 10204(a); and
c. The ban on large capacity magazines under 6 CMC § 10207(b).

On the other hand, judgment is entered in favor of Murphy and against the Commonwealth on the
following issues:

a. The registration of firearms;
b. The ban on long gun caliber restrictions above .223;
c. The ban on the following “assault weapon” attachments to semiautomatic rifles:

i. a pistol grip under the action of the weapon;
ii. a thumbhole stock;
iii. a folding or telescoping stock;
iv. a flare launcher;
v. a flash suppressor; and
vi. a forward pistol grip;

d. The ban on carrying a handgun in public, as implemented in the transportation
regulations; and

e. The $1,000 excise tax on pistols

With regard to handgun carry in public, Mr. Murphy (other others) will be allowed to exercise open carry outside the home. Concealed carry is still banned given the 9th Circuit’s en banc decision in Peruta where they said there was no Second Amendment right to carry concealed. Likewise, the safe storage requirement follows another 9th Circuit ruling on a case from San Francisco (Jackson v, San Francisco)

As reported in the local paper, Marianas Variety, Mr. Murphy will have his weapons and ammunition returned as soon as he properly renews his gun license. They also reported that the CNMI Attorney General’s Office is preparing legislation to comply with the court’s findings which they will ask the CNMI legislature to approve.

Mr. Murphy and every other current and future gun owner in the Northern Mariana Islands are very lucky. I say this because pro se cases usually turn out bad for the Second Amendment. Witness the problems caused by Leonard Embody in the 6th Circuit.

A Gun Rights Case From The Fringes Of America

The United States of America includes more than just the 50 states. It also includes three unincorporated organized territories and two commonwealths. The territories are the US Virgin Islands,  Guam, and American Samoa while the commonwealths are Puerto Rico and the Northern Mariana Islands. It also includes nine uninhabited territories administered by the Department of the Interior. These includes two islands famous for their battles during WWII: Wake and Midway.

Thus, when a Second Amendment case comes up involving the Commonwealth of the Northern Mariana Islands, it is of interest. Making it even more interesting is that it is a case jointly supported by the Second Amendment Foundation and the NRA Civil Rights Legal Defense Fund. The case is Radich et al v. Deleon Guerrero and it is being heard in the US District Court for the Commonwealth of the Northern Mariana Islands.

Before I get into the case, a little reminder as to geography. The Northern Mariana Islands are located in the Pacific Ocean northeast of the Philippines and are much closer to the Asian continental mainland than they are to the continental United States. Students of WWII will recognize the island chain for the important battles fought for two of its more important islands – Saipan and Tinian. Moreover, the Enola Gay took off for Hiroshima from Tinian.

Like Puerto Rico, the Northern Mariana Islands enjoys commonwealth status with the United States as a result of the approval in 1976 by Congress of a Covenant to establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America. This covenant was fully ratified in 1986 when qualified residents were granted US citizenship. The covenant also applies United States law, in general, to the CNMI and a US District Court was established there by Act of Congress in 1977. The District Court is part of the 9th Circuit.

Radich v. Delon Guerrero is a challenge to the Commonwealth’s restriction on handgun possession and carry. It seeks both a preliminary and permanent injunction against the Commonwealth’s enforcement of their Weapons Control Act as well as a finding that the Act violates the Second and Fourteenth Amendments on both their face and as applied to the plaintiffs. These laws include:

(a) the prohibitions on virtually all
CNMI residents from obtaining handguns for self-defense purposes; (b) the
prohibition on obtaining a WIC and possessing a firearm for self-defense purposes;
and (c) the good cause requirement for obtaining a WIC,

The plaintiffs are David and Li-Rong Radich who are residents of Saipan, CNMI. Mr. Radich is a US citizen born in California and a Navy veteran working as an environmental consultant. His wife, Li-Rong, is a Chinese citizen with permanent legal resident status. They have been married since 2009. In 2010, while Mr. Radich was out of town on business, Mrs. Radich was the victim of a home invasion and suffered broken ribs, facial contusions, and a suspected orbital fracture.

In 2013, the plaintiffs applied to the CNMI Department of Public Safety for a Weapons Identification Card so as to provide for their self-defense. Despite the requirement that a decision be made within 60 days, the plaintiffs are still waiting for an answer from the Department of Public Safety in violation of the law.

With the Supreme Court’s decisions in the Heller and McDonald cases as well as the 9th Circuit’s decision in Peruta v. San Diego, it would seem that this case bodes well for the plaintiffs. Guam has already changed their laws to bring themselves into compliance with Peruta.

Alan Gottlieb of the Second Amendment Foundation notes:

“The Second Amendment does not just apply to the continental United States and Hawaii,” noted SAF founder and Executive Vice President Alan M. Gottlieb. “It also applies to territories under U.S. jurisdiction. The issue is a fundamental civil right, not only to possess a handgun, but also to use firearms for self-defense purposes, which is currently banned in the Northern Marianas.”

It is a fundamental civil right and one that the District Court in the North Mariana Islands ought to recognize. Too bad that the Commonwealth’s government didn’t recognize this right.

UPDATE: Professor Eugene Volokh of UCLA provides a note on the Volokh Conspiracy blog about this case. He points out that the CNMI Covenant expressly states that Amendments 1 through 9 inclusive are applicable in the Northern Mariana Islands.