Pago Pago, AMERICAN SAMOA — According to a recent Order Granting Defendant’s Motion to Dismiss 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 David Wiesner, against Attorney General Fainuulelei Falefatu Alailima-Utu over the AG’s denial of license applications 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.

Samoa News reached out to Mr. Wiesner for a comment on the ruling, and he replied via email.

Wiesner said that “the purpose of the Second Amendment is to provide all people in the United States with means of protection and self-defense.

“As of October 16, 2024 when this decision was issued, the High Court for the first time opined that your Second Amendment right to own a firearm for self-defense, which is protected in every other state and territory, is not protected in American Samoa.

“American Samoans, a high number of whom have honorably served this country in the military, are just as capable of responsible firearm ownership as the rest of the people in the U.S.

“ASG takes the opposite position, arguing they should be able to restrict American Samoans from owning firearms in the same manner as foreign governments restrict their citizens from doing so. I find this to be a patronizing and dangerous attitude.”

THE ORDER

According to the Order Granting Defendant’s Motion to Dismiss, “since November 2022, plaintiff has sought to obtain unfinished firearm components…” It notes that plaintiff’s purchased materials are currently in West Virginia, and he is seeking to ship and receive the components in the territory and “to complete the manufacture of the parts into a working AR-15 style rifle.”

An application was submitted by Wiesner on Dec. 14, 2021 to import the materials with the Office of the Attorney General, and on March 5, 2022, “Deputy Attorney General Roy J.D. Hall informed Plaintiff that his application did not conform with local law.”

Wiesner then submitted a new application on March 8, 2022, and on July 8, 2022, the Attorney General denied both of his applications. In turn, Wiesner filed an appeal with the AG’s office, which was denied on June 8, 2023 on the premise of 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, invoking Second Amendment, Fourth and Fourteenth Amendments rights. Weisner, represented himself, and sought declaratory and injunctive relief.

The Attorney General, represented by Deputy AG, 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.

In discussion, according to the High Court, the plaintiff seeks to have this Court set aside American Samoa’s gun control laws to the extent that those laws violate the Second Amendment of the US Constitution.” It points out that the “threshold to that question is whether the Second Amendment applies to the Territory… it does not.”

The High Court in answering this question says it also includes the Fourth and Fourteenth Amendments, with the plaintiff’s allegations of due process and takings violations “rooted in” Wiesner’s “federal constitutional challenge to American Samoa’s gun control laws.”

Pointing to the US Supreme Court’s decisions at the turn of the 20th Century, known as Insular Cases, which have “been understood by later courts to have set out a new framework of incorporated and unincorporated territories.”

It explains that “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.”

The High Court states that “American Samoa falls into this latter category as an unincorporated territory.”

It also pointed a “fundamental rights” test that the Supreme Court “would later refine… for deterring 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’.”

The High Court notes that “this understanding was adopted ‘with an eye toward preserving Congress’ ability to accommodate the unique social and cultural conditions and values of the particular territory’.”

“In sum, this bedrock precedent dictates that this court must ask whether the circumstances are such that recognition of the Second Amendment ‘would prove impractical and anomalous as applied to contemporary American Samoa’.”

The ruling goes on to explain its findings of “impractical and anomalous” in regard to its recognition of the Second Amendment.

Of interest, it states that 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 continues that “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 further 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,” and ”only specific guns are licensable, including… their ammunitions.” It also notes that a “background investigation is required on any license applicants.

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.”

And, “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.”

In addition, the court states that “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 High Court states that the “Plaintiff has failed to state cognizable claim on which relief may be granted, and complaint is dismissed…”

The ruling is signed by Acting Associate Justice Gwen Tauiliili-Langkilde and Associate Judges Faamausili Poumele and Muasau Tofili. It is dated October 16, 2024.