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Concord Man Hopes to Bring Gun Case to
U.S. Supreme Court As Early Victim of New Gun Law

By Curt Lovelace
October 2002 Print Edition

Alec Costerus knows about gun battles. He's been involved in a legal battle with the Town of Concord over his personal gun ownership for quite some time. He's hoping to take his case to the top court in the land.

Costerus applied to be heard by the U.S. Supreme Court, but as he put it, "I submitted my Petition for Writ of Certiorari to the U.S. Supreme Court in July. The Court sent it back as my format did not comply in 100% of the requirements. I am reprinting the 40 copies (at 115 pages per copy) right now that I will be sending to Washington by Sept. 9. Meanwhile, back at the USDC in Boston, we are still progressing through discovery, for which I had to seek and obtained an Order to Compel their compliance to my several discovery events."

According to Costerus, "The Fifth Circuit Court of Appeals in U.S. v. Emerson dealt a major blow to gun control advocates. The three justices declared that the constitutional right to bear arms is an individual right, not simply a right of the states. While the decision serves as binding precedent in only those states encompassed by the Fifth Circuit (Texas, Louisiana, and Mississippi), it put the first nail in the "collective rights" theory of the Second Amendment coffin." Costerus may help to broaden its impact.

In early 1999, former state shooting champion Alec S. Costerus, held a valid firearms permit. After local police officers conducted a search of his home without a search warrant and, he contends, illegally confiscated his competitive firearms, Costerus filed a civil rights action in federal district court claiming the officers violated his Fourth Amendment protections from illegal searches and seizures. Costerus also claimed that Massachusetts' new gun control law, Chapter 180 of the Acts of 1998, violated the Second, Fifth and Fourteenth Amendments.

In March, 2001, the U.S. District Court approved the Commonwealth's Motion to Dismiss Costerus' complaint that the Second Amendment does not create an individual right to keep and bear arms. Costerus filed an appeal to the First Circuit Court of Appeals in May, 2001.

The Fifth Circuit's decision bolsters Costerus' contention that states with discretionary statutes - such as Massachusetts' - are unconstitutional as these states have standardless statutes that result in arbitrary denial of citizens' Second Amendment right to keep and bear arms and provide unequal treatment under the law, a Fifth Amendment principle.

The first shot "heard 'round the world" was fired in Concord, Costerus says. With the vast body of scholarly research, legal precedence, and the principles behind individual liberties on which this great country is founded, he told the MassNews, "It's rather ironic that Concord is the infamous stage for this Constitutional fight for our rights especially given that local farmers are the ones who took up their own arms to defend against British aggression some 225 years ago. Massachusetts even goes so far as to display the famous firearm in the State Capitol."

Costerus, who is not a lawyer, has been representing himself in court. "It's natural," he says, "because, after all, this is a fight about individual liberty." The town and its officers are represented by the insurance company's attorneys, with the state represented by Attorney General Tom Reilly.

In addition to the First Circuit's jurisdiction, encompassing Maine, New Hampshire, Rhode Island, Puerto Rico, as well as Massachusetts, a Costerus victory may also impact eleven other states with discretionary statutes plus another seven states that have no permit system, statutorily depriving its citizens of their Second Amendment rights. "It's one thing to have laws with the purpose of preventing deadly weapons from getting into the hands of evildoers and convicted violent felons; it's another thing altogether to deprive citizens of their natural and Constitutional rights to protect themselves and their family. That does not make you a criminal," he explained. "Rather," he says, "that makes you patriotic."

Costerus adds, "It's about time that the onerous laws in Massachusetts are repealed and state court decisions, such as Commonwealth v. Davis, are overturned."

Costerus, who remains upbeat, will not give up the fight he has carried on for three years. He maintains, "The exercise of a federal Constitutional right should not be subject to which state you live in," he says, adding, "The right of the People to keep and bear Arms shall not be infringed. That means 'all of the people.'"

Attorney Robert Forrest of the Massachusetts Arms Legal Association said that "We don't have any idea if [the Supreme Court] will take a case like this right now," he cautioned, but added, "The Emerson decision shows just how muddled the gun rights situation is today."

Costerus says, "For all our sakes, we can only hope that my case extends the Emerson ruling to Massachusetts and beyond."