[1994/oagheade.htm]

OAG 94-14

March 3, 1994

Mr. Vic Hellard, Director

Legislative Research Commission

State Capitol

Frankfort, Kentucky 40601

Dear Mr. Hellard:

You recently requested this office to "determine whether House Bill 359 restricting possession of handguns by minors is constitutional or unconstitutional under the Second Amendment to the Constitution of the United States or Section 1, Seventh, under the Constitution of Kentucky." The bill (HB 359) is constitutional under both of these constitutional provisions.

HB 359 prohibits the possession of a handgun by a minor. The bill also makes it unlawful to provide a handgun to a minor. The application of these prohibitions is narrowed by several exceptions and limitations set forth in the bill.

The Second Amendment does not guarantee an individual right to keep and bear arms. Stevens v. U.S., 440 F.2d 144 (6th Cir. 1971). Moreover, the Second Amendment serves as a limitation on Congress, not the states. Miller v. Texas, 153 U.S. 535, 14 S.Ct. 874, 38 L.Ed. 812 (1894); United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). Thus, the Second Amendment to the United States Constitution has been held not to operate as a bar to a municipal handgun ban. Quilici v. Village of Morton Grove, 695 F.2d 261 (7th Cir. 1982), certiorari denied 464 U.S. 863, 104 S.Ct. 194, 78 L.Ed.2d 170.

The Kentucky Constitution recognizes a right to bear arms as follows:

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned:

* * *

Seventh: The right to bear arms in defense of themselves and of the state, subject to the power of the general assembly [sic] to enact laws to prevent persons from carrying concealed weapons.

The Kentucky Supreme Court has yet to address squarely in a published opinion the question of whether this right extends to minors.

When the present Kentucky Constitution was ratified in 1891, the public policy of the Commonwealth as expressed through its statutes was to restrict the access of minors to deadly weapons. In fact, for over a century, from the early 1870's until the adoption of the modern Penal Code in the mid 1970's, Kentucky law prohibited the sale of most deadly weapons to minors.

In Holland v. Commonwealth, Ky., 294 S.W.2d 893 (1956), the Commonwealth's highest court recognized the constitutionality of KRS 435.230, since repealed, which contained a prohibition against selling deadly weapons to minors. The Holland court stated that "the Legislature has exercised the power granted it by enacting KRS 435.230," and then quoted the statute verbatim with approval. Holland v. Commonwealth, 294 S.W.2d at 85.

Given the Commonwealth's history of restricting the access of minors to deadly weapons, it is not unreasonable to conclude that the Kentucky constitutional provision recognizing a right to bear arms has no application to minors. With respect to state constitutional provisions recognizing a right to bear arms, "felons, persons of tender years, idiots and lunatics are classes that have almost universally been excluded from the arms guarantee." Dowlut and Knoop, State Constitutions and the Right to Keep and Bear Arms. 7 Oklahoma City University Law Review 191 (1982).

If the right to bear arms does extend to minors, it likely is a more limited right than that possessed by adults. The United States Supreme Court has long recognized the common sense proposition that some rights of minors, even constitutional ones, may be more restricted than those assured to adults. See, e.g., Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968).

Even the right of adults to bear arms is not absolute. The right is subject to the Kentucky General Assembly's reasonable exercise of the police power generally, as well as to the power specifically granted the General Assembly in Section 1 of the Kentucky Constitution.

Section 1 of the Kentucky Constitution expressly grants the General Assembly the power to prevent persons from carrying concealed weapons. Thus, while the seventh paragraph of Section 1 of the Kentucky Constitution recognizes a right to bear arms, it also, like the Florida Constitution, "was designed to protect the people . . . from the bearing of weapons by the unskilled, the irresponsible, and the lawless." Davis v. State, Fla., 146 So.2d 892, 894 (1962).

The case of Bliss v. Commonwealth, 12 Ky. 90 (1822) led to the addition of language in the 1850 Kentucky Constitution which expressly permits the General Assembly to enact laws to prevent the carrying of concealed weapons. This language was retained when the present Kentucky Constitution was ratified.

The Bliss opinion does not state the law under the present Constitution. Moreover, Kentucky courts have long recognized that the Bliss court's characterization of Kentucky's constitutional provisions as mandatory is subject to qualification. See, e.g., Gaines v. O'Connell, Ky., 204 S.W.2d 425, 427 (1947).

In Eary v. Commonwealth, Ky., 659 S.W.2d 198 (1983), the Kentucky Supreme Court held that the right to bear arms is subject to the state's reasonable exercise of its inherent police powers to protect the public health and safety. The Eary court concluded that KRS 527.040, which prohibits a class of persons (convicted felons) from carrying handguns, does not violate the right to bear arms recognized in the Kentucky Constitution. The Eary view is in accord with the majority of state courts. (See, generally, Annot., 86 ALR 4th 921, 938-939.)

Assuming, for the sake of argument only, that the Kentucky constitutional provision recognizing a right to bear arms extends to minors, HB 359 nevertheless represents both a reasonable exercise of the Commonwealth's police power and a reasonable exercise of the Kentucky General Assembly's power to prevent persons from carrying concealed weapons. Kentucky has "a policy of special protection of minors from injury." Pike v. George, Ky., 434 S.W.2d 626, 629 (1968). That policy is furthered by keeping handguns, which may be concealed easily and retrieved readily, out of the hands of minors.

A majority of states which have considered the question of whether a ban on the possession of handguns by all persons in the state is a reasonable exercise of the police power have concluded that it is. (See, e.g., Annot., 86 ALR 4th 921 at 939, 950-954.) HB 359 is much more limited, restricting only the possession of handguns by minors.

HB 359 does permit a minor to possess a handgun in several situations. A minor is not guilty of possession of a handgun when he or she is:

(a) In attendance at a hunter's safety course or a firearm safety course;

(b) Engaging in practice in the use of a firearm, or target shooting at an established firing range, or any other area where the discharge of a firearm is not prohibited;

(c) Engaging in an organized competition involving the use of a firearm, or participating in or practicing for a performance by a group organized under Section 501(c)(3) of the Internal Revenue Code or any successor thereto which uses firearms as a part of the performance;

(d) Hunting or trapping pursuant to a valid license issued to him or her pursuant to the statutes or administrative regulations of this Commonwealth;

(e) Traveling to or from any activity described in paragraphs (a) to (d) with any unloaded handgun in his possession;

(f) On real property which is under the control of an adult and has the permission of that adult and his or her parent or legal guardian to possess a handgun; or

(g) At his or her residence and with the permission of his or her parent or legal guardian possesses a handgun and is justified under the principles of justification set forth in KRS Chapter 503 in using physical force or deadly physical force.

HB 359 represents a reasonable balancing of competing concerns. On the one hand, the bill addresses concern over the perceived increase in violent crime perpetrated by and against the youth of this Commonwealth, particularly crimes of violence involving handguns. On the other hand, it addressses concern that minors be permitted to retain the ability to use handguns responsibly for legitimate purposes.

HB 359 does not unconstitutionally infringe on any right under the Second Amendment to the United States Constitution. Nor does HB 359 unconstitutionally infringe on the right to bear arms recognized in Section 1 of the Kentucky Constitution.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Kent T. Young

Assistant Attorney General