THE BATTLE over guns in the House of Representatives is most likely headed to court.
A group of Republican representatives announced their plans to sue Speaker Steve Shurtleff on Thursday morning, just before the House’s first voting session of the year was about to get underway.
The group’s attorney, former Merrimack Republican Rep. Dan Hynes, on Friday provided a copy of the lawsuit that he said is ready to file in Merrimack County Superior Court immediately after the next voting session of the House, unless representatives vote to revoke or significantly modify the recent rule banning firearms in the chamber and anterooms.
Hynes, who ran unsuccessfully for the District 9 Senate seat won by Democratic Sen. Jeanne Dietsch, said he wants to give the House leadership a chance to reconsider.
We usually don’t report on people threatening to sue, preferring to wait until an actual lawsuit has been filed. But this is an unusual case, where the stage is set for the suit to be filed and the draft has been made available.
Shurtleff said on Friday that the rule will not be on the agenda when the House next meets on Feb. 14, and no change is anticipated.
“I think the House did the right thing with this vote, and the right of the body to make rules is covered in the state constitution, as well as the decision of the U.S. Supreme Court in District of Columbia v. Heller,” said Shurtleff, referring to the 2008 decision in which the justices ruled the Second Amendment establishes an individual right to bear arms, but not an unrestricted right.
Hynes believes he has a sound legal argument, and if he doesn’t prevail in Superior Court will most likely appeal to the state Supreme Court.
“The flat-out ban goes beyond what courts will recognize,” he said. “I saw Shurtleff’s response that under Heller the Legislature can ban guns and I agree with his assessment on that. We are not arguing it under the Second Amendment to the U.S. Constitution. We are hoping our state courts will give more weight to the New Hampshire state Constitution.”
The New Hampshire Constitution specifically refers to the right of self-defense in its provision protecting the right to bear arms. That’s where Hynes hopes to make his case.
“We hope the courts agree that any limit has to be narrowly tailored, just like it would be on voting restrictions or restrictions on someone’s First Amendment rights,” he said.
Hynes will also argue that the Legislature lacks the authority to set this kind of rule. The state’s constitution empowers the House to set its own rules on procedural matters. “Our position is that this isn’t a procedural rule,” he said.
“The newly adopted rule has the effect of forcing law-abiding people from choosing to protect themselves, as is their constitutional right, or to risk being arrested,” according to the draft of the lawsuit. “Reps also face the potential consequences of being disciplined, which could include expulsion from the State House.”
Hynes argues that the net effect of the rule is that “a partisan majority of the State House has essentially made it so that they can go against the will of the voters and remove from office or arrest one of the many state reps who choose to exercise their constitutional right to self-defense as well as their right to carry under New Hampshire law.”
In addition to Shurtleff, the lawsuit names Sergeant at Arms Walter Sword as a defendant in his official capacity.
The plaintiffs include seven incumbent Republican state reps: John Burt of Goffstown, Kevin Craig of Lancaster, Terry Roy of Deerfield, Jess Edwards of Auburn, Alicia Lekas of Hudson, Tony Lekas of Hudson and Hershel Nunez of Pelham.
Non-rep plaintiffs are Brandon Phinney of Rochester, a former rep; J.R. Hoell of Dunbarton, also a former rep; and Christopher Maidment of Peterborough.
In the lawsuit, plaintiffs outline the reasons they want to bear arms in Representatives’ Hall. Burt says he has received five death threats since being elected; Craig is a retired prison guard; Lekas also claims to have been threatened.
Nunez outlines his concern: “Sometimes there are early mornings and late nights walking to and from the Storrs Garage. There are congregations of people in these areas, some folks who live in the area, some who are transient and others. We do not know what the intentions of these folks are.”