According to a recent ruling by the High Court of American Samoa the Second Amendment of the US Constitution, the right to bear arms, does not apply to the territory of American Samoa.
The ruling stems from a suit filed by local resident and attorney Wiesner, against Attorney General Fainuulelei Falefatu Alailima-Utu over the AG’s denial of a license application by Wiesner to import unfinished firearm components from the United States for the manufacture of a privately made, 22 caliber semi automatic rifle in American Samoa.
On December 14, 2021, the plaintiff submitted an application for a license to import materials for the manufacture of an AR-15 style rifle with the Office of the Attorney General. On March 5, 2022 Deputy Attorney General Roy JD Hall Jr., informed him that his application did not conform with local law.
Wiesner submitted a new application to Hall on March 8, 2022, and in July of the same year, the AG denied both applications. On August 9, 2022 Wiesner filed an appeal with the Attorney General’s Office.
The appeal was denied on June 8. 2023, which denial was premised on the government’s finding that an AR-15 rifle is a non conforming weapon under local statute.
On December 18, last year, Wiesner filed suit against the AG asserting violations of his right to bear arms and due process rights under the US Constitution. Weisner, representing himself, sought declaratory and injunctive relief.
The Attorney General, represented by Deputy AG, Roy JD Hall Jr. filed a motion to dismiss the complaint on January 10, 2024.
In a ruling dated October 16, 2024, the High Court granted the defendant’s motion to dismiss.
It said that the Second Amendment of the US Constitution, the right to bear arms, does not apply to American Samoa.
In its ruling, the court refers to the Insular Cases, saying this collection of cases has been understood by later courts to have set out a new framework of incorporated and unincorporated territories. In incorporated territories or territories that are on the road to statehood, the constitution would apply in full force, just like it does in states.
In the latter category of unincorporated territories, those which are not on the path to statehood, the constitution does not apply in full and only fundamental constitutional rights would be guaranteed. American Samoa falls into this latter category as an unincorporated territory.
According to the court ruling of an October 16, though originally a fundamental rights test, the Supreme Court would later refine its test for determining the application of the constitution to unincorporated territories like American Samoa. Instead of asking which rights were fundamental, the Supreme court required that lower courts consider the application of the constitution in view of the “particular circumstance, the practical necessities and the possible alternatives which Congress had before it.”
“In sum, this bedrock precedent dictates that this court must ask whether the circumstances are such that recognition of the Second Amendment would prove impracticable and anomalous as applied to American Samoa.”
The ruling cites the decision in the US citizenship case, Tuaua vs the United States, where the court considered the wishes of the territory’s democratically elected representatives when declining to extend the citizenship clause to American Samoa.
It said notably absent from the Bill of Rights listing liberties considered inherent in a representative form of government in American Samoa is any mention of a right to bear arms or the US Constitution’s Second Amendment equivalent.
It said Congress implicitly acknowledged the territory’s constitution, one devoid of a right to bear arms, when it prohibited changes absent congressional approval in 1983.
The ruling points out that despite the omission of gun rights in the local constitution, the Fono has allowed certain arms in the territory within strict parameters. Only specific guns are licensable including 12, 16, 20 and 410 gauge shotguns and shotgun shells and 22 caliber rifles and their ammunitions.
The court said the people of American Samoa have not consented to the application of a right to bear arms as evidenced in the local constitution.
“Because the people of American Samoa have clearly expressed that gun rights in the territory are not constitutionally protected it would be impractical and anomalous to override the democratic prerogatives of the American Samoa people themselves.”
According to the court ruling, “A right to bear arms is not enumerated in the territory’ s Bill of Rights and American Samoa’s laws have been consistently crafted to limit firearms within its border.
“In light of this the matai of Tutuila, Aunuu, and Manua islands, who signed the Deeds of Cession, would surely agree that to thrust the Second Amendment on the territory would be contrary to the United States promise to promote the peace and welfare of the inhabitants of American Samoa. In addition, to construe a federal right to bear arms against the democratic consensus of the Samoan people would force the United States to break tis century old pledge of protection, a result that would truly be anomalous.”
The court said, “Where the people of American Samoa do not recognize a constitutional right to bear arms and the imposition of that right may negatively impact the federal government’s obligations to American Samoa as expressed in the Deeds of Cession, it would be impractical and anomalous to construe the US Second Amendment as applicable to the territory. Therefore the Second Amendment of the US Constitution does not apply in American Samoa.
The court ruled that the plaintiff has failed to state a cognizable claim on which relief may be granted, and the complaint is dismissed.
The ruling was signed by Acting Associate Justice Gwen Tauiliili-Langkilde and Associate Judges Faamausili Poumele and Muasau Tofili.
