Is a Gun Loaded If the Bullets Are Beside It?
Evan Bernick /
For proof that prosecutors will apply laws in ways that are at odds with societal expectations, look no further than the case of Oriol Dor. Dor came within an interlocutory appeal of being convicted of “knowingly carrying a loaded pistol” even though his gun had no bullets or magazine inside of it.
Yes, you read that correctly. Only the common sense of the New Hampshire Supreme Court saved Dor from being convicted of carrying a loaded gun that most reasonable English speakers would not consider “loaded.”
In May 2012, in Manchester, New Hampshire, police searched Dor’s vehicle and found a .40 caliber semi-automatic pistol adjacent to a magazine in the vehicle’s glove compartment. The pistol did not have a cartridge in the chamber or a magazine in the magazine well.
The fact that the cartridge was not inside Dor’s weapon did not stop the state from arguing that Dor should be convicted of carrying a loaded pistol. The relevant law provided that a “loaded pistol or revolver shall include any pistol or revolver with a magazine, cylinder, chamber or clip in which there are loaded cartridges.” Armed with an ambiguous with, the state contended that Dor’s pistol, being “near a cartridge,” was in fact “loaded” for statutory purposes because it was “with” that pistol.
Thankfully, the New Hampshire Supreme Court was having none of it.
The court began by announcing the interpretive premise that one should, “if possible, construe that language according to its plain and ordinary meaning.” Cracking open a contemporary dictionary, Associate Justice Robert Lynn, writing for the court, recited the definition of loaded:
“Loaded” is…the past participle of the verb “load,” which means “to put a load on or in a carrier, device, machine, or container; [specifically] to insert the charge or cartridge in the chamber of a firearm.”
Lacking any evidence that the legislature intended anything else by loaded, the court concluded that Dor’s weapon was not loaded.
In dismissing the state’s arguments, the court added that, if Dor’s gun were to be considered loaded, the law itself might be unconstitutionally vague. How “near” would a gun have to be to a loaded magazine in order to be considered “loaded”? Who knows? As the court said, criminal laws should not be written such that “men of ordinary intelligence must necessarily guess at its meaning and differ as to its application.”
The court reached the correct outcome because it started from the right premise—that words in statutes should be presumed to be consistent with the plain, ordinary meaning reasonable citizens would attribute to them. Prosecutors should not attempt to twist the words of a criminal statute in order to fit the conduct of an individual they seek to convict.
For most citizens, the “loaded” question over which New Hampshire courts puzzled probably wouldn’t be a question at all. But it almost resulted in Dor’s conviction. Here’s hoping that more judges unload on the prosecutorial overreach that so nearly branded him a criminal for life.
The Heritage Foundation’s project USA vs. YOU spotlights the flood of criminal laws threatening our liberties. Explore more stories of overcriminalization and find out what you can do to reverse this trend.