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Article United States: Puerto Rico's Supreme Tribunal Upholds Constitutionality of Requiring a License to Use or Carry Firearms

On October 28, 2022, the Puerto Rico Supreme Tribunal issued a decision upholding the constitutionality of article 5.04 of Law No. 404 of 2000 (English translation), known as the “Puerto Rico Weapons Act,” which requires a license to possess and a permit to carry firearms in Puerto Rico. (El Pueblo de P.R. v. Rodríguez López, No. AC-2017-0103 (PRSC Oct. 28, 2022.) Article 5.04 was challenged under the Second Amendment to the United States Constitution, which provides for the right to keep and bear arms.

Background to the Case

In December 2015 and January 2016, the Public Ministry filed charges of violating the Weapons Act against three individuals (the defendants). The defendants moved for dismissal of the charges, arguing that the articles of the Weapons Act under which they were charged were unconstitutional because they restricted their constitutional right to keep and bear arms under the Second Amendment to the United States Constitution. The Court of First Instance denied the defendants’ motion, concluding that the right to keep and bear arms recognized in the Second Amendment was neither absolute nor unlimited, and that the Weapons Act was not a substantial burden on the right.

The defendants appealed to the Court of Appeals through a writ of certiorari. They averred that the Court of First Instance erred by not determining that the application of the relevant articles of the Weapons Law violated the Second Amendment. In their view, the Weapons Act, as applied to them, served as an absolute prohibition on their right to keep and bear arms, which exposed them to imprisonment for having exercised their constitutional right. At oral argument, the attorney general argued that the government may legitimately establish limits and regulations for possessing and carrying weapons. After the hearing, a panel of appellate judges ruled that because the right to keep and bear arms is a fundamental right, any restrictions on it are subject to strict scrutiny. The panel determined that the Weapons Act restriction on the carrying and use of firearms without a license or permit (article 5.04) was unconstitutional on its face and in its application, since it amounted to an absolute prohibition on the right to keep and bear arms. The attorney general appealed this decision to the Supreme Tribunal.

Holding of the Supreme Tribunal

First, the tribunal reviewed the text of article 5.04 and concluded that the legislature intended to ensure compliance with the licensing and permit scheme established in the law, and specified the criminal consequences of failure to do so. Hence, the crime of illegal carrying and use of a firearm entails doing so without the required license or permit.

The court then addressed the constitutionality of article 5.04. It confirmed that the right to keep and bear arms in the Second Amendment is a fundamental right that has been extended to Puerto Rico. Citing recent U.S. Supreme Court case law, the Puerto Rico Supreme Tribunal set forth that when the state government regulates conduct protected by the Second Amendment, it must demonstrate that the regulation or limitation of that constitutionally protected conduct is consistent with the historical tradition regarding the regulation of firearms in the nation in order for the regulation to be justified.

In this case, the court concluded that article 5.04 is consistent with the historical traditions regarding the regulation of firearms in the nation. Similar to license requirements in other U.S. jurisdictions, Puerto Rico’s regulation establishes a public policy of zero tolerance against crime, enables law enforcement agencies to be more effective in addressing crime, and promotes greater security and welfare for the people. The court referred to North Carolina, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Nebraska, New Jersey, and Rhode Island as examples of other U.S. jurisdictions with firearms license requirements similar to those of Puerto Rico. Accordingly, the Supreme Tribunal revoked the appellate court’s determination that article 5.04 was unconstitutional.

Prepared by Jesús Colón Rosado, Law Library intern, under the supervision of Gustavo Guerra, Senior Foreign Law Specialist, and Elizabeth Osborne, Chief, Public Services Division

Law Library of Congress, January 30, 2023

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Chicago citation style:

Guerra, Gustavo. United States: Puerto Rico's Supreme Tribunal Upholds Constitutionality of Requiring a License to Use or Carry Firearms. 2023. Web Page. https://www.loc.gov/item/global-legal-monitor/2023-01-29/united-states-puerto-ricos-supreme-tribunal-upholds-constitutionality-of-requiring-a-license-to-use-or-carry-firearms/.

APA citation style:

Guerra, G. (2023) United States: Puerto Rico's Supreme Tribunal Upholds Constitutionality of Requiring a License to Use or Carry Firearms. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2023-01-29/united-states-puerto-ricos-supreme-tribunal-upholds-constitutionality-of-requiring-a-license-to-use-or-carry-firearms/.

MLA citation style:

Guerra, Gustavo. United States: Puerto Rico's Supreme Tribunal Upholds Constitutionality of Requiring a License to Use or Carry Firearms. 2023. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2023-01-29/united-states-puerto-ricos-supreme-tribunal-upholds-constitutionality-of-requiring-a-license-to-use-or-carry-firearms/>.