Earlier this month, the Georgia Supreme Court issued an opinion that restricted the right of Georgians to keep and bear arms under the Second Amendment.
In Georgia, a person cannot possess a firearm if he or she is a convicted felon. Further, a person cannot obtain a “weapons carry license” if that person has been convicted of a felony.
In 1994, a man named James Hertz pleaded nolo contendere, or “no contest”, to five felony charges in Florida when he was 18 years old. The Florida court withheld judgment on the charges and sentenced Mr. Hertz to three years’ probation, which he successfully completed. In other words, Mr. Hertz entered a plea on his case, but was never convicted of any crime. This scenario is similar to how Georgia’s First Offender Statute operates.
In 2012, he applied for a “weapons carry license” in the probate court of Quitman County, GA. The court denied his application because of the no contest plea in Florida. Georgia law considers a no contest plea as a conviction.
Hertz appealed the probate court’s decision to the Georgia Supreme Court arguing that the Florida judge’s withholding of a judgment is equal to a no contest plea in Georgia when the defendant is sentenced as a first offender. Georgia law specifically provides that a person who completes a first offender sentence is eligible for a weapons carry license as long as no other exceptions apply.
Hertz also correctly argued that the probate court’s decision violated his constitutional right to keep and bear arms. Unfortunately, the high court did not agree with either of his arguments.
Justice Hunstein wrote, “because Hertz’s nolo contendere plea makes him ineligible for a weapons carry license under Georgia law, and the statute as applied to him does not violate the United States or Georgia Constitutions, we affirm the lower court’s decision.” Justice Hunstein added “The law being challenged in this case doesn’t involve the constitutional right to own a gun. Hertz has the right to possess a handgun inside his home, motor vehicle, or place of business without a weapons carry license.”
There are two problems with this decision. First, as mentioned above, the Florida court never entered a conviction in his case. It was the intent of the Florida court for Mr. Hertz to walk away from his criminal matter not being a convicted felon. While Georgia does treat a nolo contendere plea as a conviction, the scenario in Florida was much more like a first offender sentence even though the word “nolo contendere” was used in the sentence. It is important to understand that each state defines terms used in criminal procedure differently.
Second, this decision did involve the constitutional right to keep and bear arms. While Mr. Hertz can keep a gun in the places listed by the court, he cannot carry a firearm pursuant to the weapons carry license statute. This clearly infringes upon his freedom to “bear arms” because he is restricted from taking a firearm into otherwise lawful areas.
I don’t know if there will be any further appeals in the federal courts. However, for now, the important information to understand is that entering a nolo contendere, or no contest plea, to certain criminal offenses in Georgia or any other state will adversely affect your rights under the Second Amendment in the state of Georgia.