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July 11th, 2010

Too Little, (Almost) Too Late

By Nathan Tucker

On Wednesday, Iowa federal district judge Mark Bennett ruled that Osceola County Sheriff Douglas Weber unconstitutionally denied Paul Dorr a permit to carry a concealed firearm. In doing so, however, the court did not take the opportunity to hold that Iowa’s current “may issue” regime itself is unconstitutional under the Second Amendment.

Instead, the court ruled that in “denying [Dorr] a concealed carry permit, Sheriff Weber single-handedly hijacked the First Amendment and nullified its freedoms and protections.” How? Because the court found that “Paul [Dorr] was denied a permit precisely because Sheriff Weber believed that his free speech rights offended the majority of voters in Osceola County…”

Under current Iowa law, sheriffs have complete and total discretion over whether to issue an applicant a permit to carry a concealed weapon. Dorr had been issued a carry permit in the late 1990s to 2006, including two by Sheriff Weber himself in 2005 and 2006. But when Dorr went to renew his permit in July of 2007, Weber rejected his application with the words “Concern from Public. Don’t trust him.”

Dorr appears to have a rather low reputation in Osceola County, where “Sheriff Weber has heard people refer to [him] as a whacko, delusional, a nut job, a spook, and narcissist. Regardless of the adjective used to describe [Dorr], however, Sheriff Weber stated that Paul’s ‘lousy’ reputation was due to his political activities in writing letters to the editor and distributing flyers.”

Despite this “lousy” reputation, Weber issued Dorr carry permits in both 2005 and 2006. What changed in 2007, the year Weber denied the permit, was Dorr’s involvement with the Osceola County Taxpayer’s Association (OCTA), “a group that was challenging the county budget, believed the county was spending too much, was seeking information specifically in relation to the sheriff’s office, and wanted the sheriff’s office to reduce its spending and salaries.”

The court held that Weber’s denial of Dorr’s concealed weapon application due to his political activities violated the First Amendment because of its chilling effect on political speech. The court found that an applicant “would reasonably be deterred from exercising their First Amendment rights if it led to a denial of the permit.”

The court concluded that this “is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views…”

The court also found that “Sheriff Weber’s dramatic and stunning failure to appreciate, and to protect and defend, [Dorr’s] basic First Amendment rights, compels remedial relief…Weber…must complete [a class that]…must provide college level instruction on the United States Constitution, including—at least in part—a discussion on the First Amendment.”

While the court’s ruling is correct, it comes nearly too late to have any practical effect in the state. Beginning January 1, 2011, Iowa will become a “shall issue” state in which county sheriffs must issue carry permits if the applicant satisfies certain criteria laid out by statute. Because sheriffs will no longer have any discretion in the issuance of permits, this issue will be moot the first of the year.

Additionally, by basing its decision on the First Amendment rather than the Second, the court’s ruling skirted the larger issue of the constitutionality of Iowa’s current carry permit regime. Though in this case the sheriff managed to violate both Dorr’s First and Second Amendment rights, it is much more common that only the later will be violated by a sheriff’s abuse of discretion.

For instance, under the current system a sheriff may deny a carry permit because he doesn’t like you, the car you drive, where you went to school, your favorite sports team, your favorite color, or for an undisclosed reason. None of these rationales necessarily violates the First Amendment, yet clearly they would arbitrarily and capriciously deprive an applicant of the right to provide for his “own safety, or the safety of others…” protected by the Second Amendment.

The court should have taken this opportunity to hold that such unfettered discretion by sheriffs under Iowa’s current law violated Dorr’s Second Amendment rights to carry a weapon to protect himself and others. While we may take refuge in the fact that this issue will be moot in less than six months when Iowa becomes a “shall issue” state, it does not mean the current unconstitutional statutory regime should have been allowed to ride off into the sunset undisturbed.

Though the court may have gotten this particular case right, it was far too little, and almost too late, to do any good.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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