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FOR PUBLICATION SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) ) Plaintiff, ) ) VS. ) CASE NO. ST-IO-CR-179 ) JODY A. PENN, ) ) Defendant. ) ) MICHAEL MOTYLINSKI, ESQUIRE Assistant Attorneys General Department ofJustice 34-34 Kronsprindsens Gade GERS Building, 2nd Floor St. Thomas, U.S. Virgin Islands 00802 Attorney for Plaintiff J. RUSSEL B. PATE, ESQUIRE The Pate Law Firm Royal Dane Mall, 2nd Fl. P.O. Box 890, St. Thomas, U.S. Virgin Islands 00804 Attorney for Defendant DUNSTON, Judge MEMORAND1!!'10PINION (Filed: July.l:f-, 2010) Defendant movesl to dismiss Count Eight of the Information, asserting that 14 V.I.C. § 2253(b)2 is unconstitutional based on District o/Columbia v. Blller, _U,S'-' I Defendant filed a Motion to Dismiss on May 31,2010, and the People ofthe Virgin Islands filed an Opposition on June 4, 2010. People ofthe Virgin Islands v. Jody Penn, Case No. ST-10-CR-179 Memorandum Opinion, July 14,2010 Page 2 of4 128 S.Ct. 2783 (2008).3 Defendant also asserts the statute violates "the Fourteenth Amendment, the equal protection clause, the due process clause, and the RJvised Organic Act." The People of the Virgin Islands oppose Defendant's motion ba.$ed on U.S. v. Lewis, 2008 WL 5412013, at *6 (D.V.I. 2008), in which a Second Amenruhent challenge I to 14 V.I.C. § 2253(a) under Heller was foreclosed because the "Second Amendment of I I the Constitution does not constrain purely territorial action by the rirgin Islands authorities." The Lewis court reasoned that although the Revised Organic fAct makes the Second Amendment applicable to the Virgin Islands, 4 the effect of the Second I Amendment upon Virgin Islands law is "nil" because the Second Ameridment has not been incorporated through the Fourteenth Amendment. Id., at *4. In McDonald v. City ofChicago, _U.S._, 2010 WL 2555188, at * 28 (2010), however, the Supreme Court indicated that if a Bill of Rights provilion protects a fundamental American right, the provision is applicable to both the fedeL government I and the States. Accordingly, the Supreme Court concluded that ''the Due ,process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in '. , ' I 2 14 V.I.C. § 2253(b) states: "whoever, unless authorized by law, has, possesses, bears, ttansports, or carries either openly or concealed on or about his person, or under his control in any vehicle of any description any machine gun or sawed-off shotgun ... may be arrested without warrant, and shall be sentenced to imprisonment ofnot less than two years nor more than five years..." I 3 In Heller, the Supreme Court determined that a gun control statute in the District of Co~umbia violated the Second Amendment. . I 4 The Revised Organic Act provides that the first to ninth amendments ofthe U.S. Constitution, IS well as section one ofthe Fourteenth Amendment, have the same force and effect in the Virgin Islands as in any state ofthe United States. 48 U.S.C. § 1561; ,see also Lewis, 8IlJ1ra, at *4 (citing United Stote" v. Hyde, Crim. No.1993-65, 1993 U.s. Din LEXIS 20047, at *10, 1993 WL 733094 (D.V.I. Oct. 21, 1993) rev'd on other grounds, 37 F.3d 116 (1994». Section one ofthe Fourteenth Amendment providesJ in pertinent part: "no state shall make or enforce any law which shall abridge the privileges or immunities' ofcitizens ofthe United States; nor shall any state deprive any person ofUCe, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws!' 2 People ofthe Virgin Islands v. Jody Penn, Case No. ST-I0-CR-179 Memorandum Opinion, July 14,2010 Page 3 of4 Heller." Id. Notwithstanding, the Supreme Court emphasized that the right to bear arms under the Second Amendment is not "a right to keep and carry any weapon}whatsoever in any manner whatsoever and for wbatever purpose." McDonald, supra, 1.25 (quoting Heller, supra, at 2816). In addition, the Supreme Court indicated that its opinion did not cast into doubt longstanding "prohibitions on the possession offirearms by'felons and the mentally . ill, or laws forbidding the carrying of firearms in sensitive Jlaces such as I schools and government buildings, or laws imposing conditions and qualiij.cations on the commercial sale of arms." McDonald, supra, at ·25 (quoting Heller, sLpra, at 2816, 2817). The Second Amendment is also limited by prohibitions on thi "carrying of , 'dangerous and unusual weapons'" such as "M-16 rifles and the like." Heller, supra, at 2817. Considering Heller and McDonald, the Court fmds that the Fourteenth Amendment makes the Second Amendment applicable to laws formulatek in the Virgin Islands. However, given that McDonald recognizes that the law may limiJ the possession of firearms, the language in 14 V.I.C. § 2253(b} prohibiting the possessiol of a machine I gun or sawed-off shotgun "unless authorized by law" is not a condition that violates the Second Amendment. Similarly, the statute's limitation on the Second Jendment right to bear arms is constitutional because a machine gun or sawed-off shltgun could be . .. I . categorized as a "dangerous and unusual weapon." As a consequence, the statute does not .. , violate Defendant's rights under the Second Amendment, the due process clause of the Fourteenth Amendment, nor the Revised Organic Act. With respect to Defendant's claim that the statute violates his equal protection rights under the Fourteenth Amendment, Defendant has provided no ar~ent or case 3 An Order consistent with this Memorandum Opinion wi~ll_~,-- HON. People ofthe Virgin Islands v. Jody Penn, Case No. ST-10-CR-179 Memorandum Opinion, July 14,2010 Page 4 of4 law that would suggest there is no legitimate governmental interest to support the statute or that the statute purposefully discriminates against Defendant. See B1ac~v. Barnes, 776 F. SUpp. 1000, 1011 (M.D. Pa. 1991). As a result, Defendant's constitutional rights have I not been violated, and his motion to dismiss will be denied. Dated: July d 2010 ON ,;.~~-. ATTEST: Venetia H. Velazquez, Esq. JUDGE OF THE SUPERIOR COURt ,'II Clerk ofCourt __1__1__ OF THE VIRGIN ISLANDS J, , -" ,', ~&'~ R Salie Griffith Court Clerk Supervisor 2.JJ5j~ 4 SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN PEOPLE OF THE VIRGIN ISLANDS, ) ) Plaintiff, ) ) JODY A. PENN, VS. Defendant ) CASE NO. ST-IO-CR-179 ) ) ) ) ) ORDER UPON CONSIDERATION ofthe premises, it is hereby ORDERED that Defendant Jody A. Penn's motion to dismiss is DENIED; and it is ORDERED that a copy of this Order be directed to Defendant an4 to counsel of record. Dated: July 1"/,2010 -- ~I ........ HON. MICHAE0DUNSTON ATTEST: VenetiaH. Velazquez, Esq. JUDGE OF THE SUPERIOR,COURT' OF THE VIRGIN ISLANDS , ' Clji1- 1 -. ~ :c;C' by: c:::::::t'!..",,,,,,,", Ros Griffith : JA Court Clerk Supervisor :1.-; 101J!L