Mike Reitz at EFF gives a good writeup of the Supreme Court of Washington's decision in State v. Sieyes, which -- in essence -- says that our federal Constitution (through the due process clause of the Fourteenth Amendment) guarantees an individual right to keep and bear arms, but not necessarily for minors.
The court did not actually rule that minors do not have such rights, but basically asserted that they weren't convinced they did. Civil libertarian Justice Richard Sanders wrote for the majority, saying, "we keep our powder dry on this issue for another day."
The current doctrine of selective incorporation -- which I've many times discussed -- was a travesty designed to prevent the plain language, and explicitly stated intent of the authors of, the Fourteenth Amendment from taking effect. Indeed, the sponsor of the Fourteenth Amendment in the Senate said at the amendment's introduction that "[t]he great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees," which include "the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner," and so on.
Applying the Second Amendment to the States was part of the stated purpose of the Fourteenth Amendment. And the language is clear.
Sanders didn't write about this century-old travesty, but instead applied existing federal standards for incorporation, and demonstrated quite clearly and convincingly that the Second Amendment meets those standards.
New Chief Justice Barbara Madsen agreed with the decision in "result only," while Justice Debra Stephens wrote a concurring opinion claiming that she too agreed with the result -- that minors are not found to have gun rights -- but asserted that the decision to incorporate the Second Amendment was not warranted by the case, particularly in light of this summer's pending decision in the federal Court, because "I do not believe this is an instance where there is anything to be accomplished" by doing so. This could betray biases on both sides: perhaps Sanders wishes to contribute to the discussion the federal Court will be having, and Stephens does not.
Conservative Justice James Johnson dissented with the decision, for though he agreed with the incorporation part of the decision, he -- perhaps giving weight to Stephens' complaint of lack of restraint -- disagreed with the part of the decision regarding minors.
The main point here is what level of scrutiny to apply to our right to keep and bear arms. Johnson argued for strict scrutiny, the notion that in order to override someone's Constitutional rights, there must be in order to serve a compelling state interest, the law must be narrowly tailored to serve that interest, and it must use the least restrictive means to serve that interest. Under strict scrutiny, surely the case would have been found in favor of gun rights for minors; however, the question I have is whether minors should get strict scrutiny applied to them. Johnson is right, however, that the Washington Court does apply strict scrutiny to minors, so it seems in violation of precedent to not do so here.
Sanders responded that the Supreme Court itself refused to define a level of scrutiny for Second Amendment matters. It's curious, though, that Sanders punts on scrutiny because of an explicit lack of federal Court guidance, but forges ahead with incorporation despite the same lack of guidance, especially in light of the coming decision later this year. This makes me think even more that Sanders wants to, if he can, contribute to the federal Court's decision to incorporate.
Cross-posted on <pudge/*>.
Posted by pudge at February 18, 2010 01:05 PM | Email ThisDo you believe that there is a fundamental travesty taking place every time someone isn't indicted by a grand jury? Or by a jury smaller than 12 peers?
Posted by: "Steve" Jensen on February 18, 2010 02:27 PMNo, it doesn't. It says, rather, that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." So it is broader than the Bill of Rights. I am not talking about the due process clause at all.
If you have a right, as a U.S. citizen, to keep and bear arms, the state cannot make or enforce any law which shall abridge that right. Period, end of story. This is what the 14th Amendment clearly states, and it is what its sponsors explicitly said they meant, and it is what Justice Black recognized when he wrote, I suggest that any reading of "privileges or immunities of citizens of the United States" which excludes the Bill of Rights' safeguards renders the words of this section of the Fourteenth Amendment meaningless.
As Sanders added in a footnote: "As the Court incorporated additional provisions the justices debated whether the Bill of Rights should apply en banc. Justice Black argued the Fourteenth Amendment incorporated all provisions in the Bill of Rights and applied them to the states. ... But Justice Frankfurter argued selective incorporation included only rights necessary to assure a scheme of ordered liberty. ... The debate continued for decades."
Frankfurter was, as usual, on the side of the statists, saying we should only give people the rights we think they need, instead of the rights the Constitution says they have.
Do you believe that there is a fundamental travesty taking place every time someone isn't indicted by a grand jury?
Yes, those are among the remaining wrongs left to right.
I don't think it's necessarily appropriate for a state justice to weigh in on a decision that is in front of the SOTUS, but worse things have happened.
Posted by: "Steve" Jensen on February 18, 2010 02:51 PMNo, we don't trust kids under 21 to drink alchohol. We don't trust kids under 16 to drive. And we sure as hell shouldn't trust kids under 18 to own and operate firearms without parental supervision!
Posted by: proteus on February 18, 2010 03:15 PMI don't think what Sanders did is INappropriate, but ... it doesn't make for neat and clear caselaw. I mean come on ... we have one, maybe two, justices who voted in favor of this decision, but are against incorporation (by this Court, anyway). We have another judge who is in favor of incorporation, but dissented.
That is not Good Law, in my opinion, as much as I am in favor of incorporating the Second Amendment (or eliminating incorporation altogether). But as you say, worse things have happened.
Proteus: it's not about what YOU think is common sense. Your common sense also denies my property rights, but thankfully, your common sense doesn't count. Also note that our law does not allow a (blanket) exception for "parental supervision." For example, I can have a gun at home or at a gravel pit that allows shooting if I am under parental supervision, but I cannot carry one down the street, like adults can, even if under parental supervision. I am not decided on what the law should be, though.
Your right to use your land is limited. Why? because your land connects to everyone elses. Actions taken on YOUR land can, and do affect everyone elses land.
Same with guns. If your kids are playing with guns at home..thats your problem. If your kids are on a public street with a gun, you are putting MY kids at risk. And thus, it becomes OUR problem.
Simple, no?
Posted by: Proteus on February 18, 2010 05:54 PMBut the WA Constitution is much more explicit than the 2nd Amendment: "The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired . . . ." I have not researched the WA S.Ct.'s case law interpreting this provision (not an amendment), but it is clear to me that our State Constitution grants those of us who are lawful gun owners MORE protection than the US Constitution. Therefore, while I agree with Justice Sanders, as usual, I don't know if I disagree with Justice Stephen's argument regarding the lack of consequence of incorporation.
Posted by: srogers on February 18, 2010 06:20 PMThat's an assumption, not a fact. By the same logic, MY carrying a gun, as an adult, CAN put your kids at risk, and therefore you could ban MY carrying a gun. We could say the same about speech, too: my speech could put anyone at risk.
The line about "the right to swing my fist ends where your nose begins" is about actually swinging your fist, not merely clenching your fingers. Carrying a gun is not "swinging your fist."
Again, I am undecided on the issue ... but I am convinced that you make a lousy argument. :-)
But our Consitution can change, and our Court can interpret it independently of how the federal Court interprets the Second Amendment. Our Court can, for example, find that our state Constitution has a lower level of scrutiny, or that its words are interpreted more weakly ... but they are essentially bound to respect the federal Court's interpretation of the Second Amendment, regardless of how they may repeal or reinterpret our state Constitution.
As a practical example, our Court could easily find that concealed carry is not protected by the state Constitution, while our federal Court might find it is protected by the Second Amendment.
Further, incorporation is an issue larger than just the Second Amendment, so there's that. I tend to think, as I mentioned earlier, that Sanders probably has some ulterior motives here, beyond just protecting the immediate gun rights of Washingtonians.
WA reviews gender discrimination with strict scrutiny (but not the US, as above). Takings are reviewed more strictly by WA than the US, and the burden of proof is opposite (on the State in WA, on the land owner in Federal Court). There are many more provisions of the WA Constitution that expressly provide greater protection than the US Constitution (Religious freedom (absolute right to freedom of conscience) and time, place and manner restrictions on political speech in traditional public forums), and WA courts give people standing to raise constitutional claims against state action in circumstances where the Fed courts would not.
Finally, I wonder why you think its easier to change our State Constitution than it is to change the Federal Constitution. I can't state the exact method for amending each one, but the hurdles are high in both instances; that's the whole point of having a Constitution rather than simply a body of precedent with no statement of overarching principles. Perhaps you are right, due to the requirement of ratification by the states; I just don't know off hand this late in the day.
Posted by: srogers on February 18, 2010 10:34 PMI was just pointing out that IF our gun rights are lost in WA, it'd be nice to be able to fall back on a reasonable interpretation of the Second Amendment. Simply saying the WA Constitution protects us is little comfort.
Finally, I wonder why you think its easier to change our State Constitution than it is to change the Federal Constitution.
Because it is. :-) To amend the state Constitution, you need two-thirds of both houses, and then a majority vote of the people. It's happened 83 times in 120 years.
To amend the federal Constitution, you also need two-thirds of both houses, and then approval by three-fourths of the states (either legislatures, or state conventions). It's happened 27 times in 220 years. (Alternatively, instead of two-thirds of both houses, you could also have two-thirds of state legislatures request a Constitutional convention, which could propose amendments for ratification by the states.)
It is at least slightly harder, usually, to get two-thirds of the federal legislative bodies to agree on something, because of the broader spectrum of interests represented (and larger number of members); it is much harder to get three-fourths of states to agree on something, however, than it is to get a majority vote of Washington's electorate.
Also, it's much easier to get a single state inflamed with a certain passion resulting in the push for amending the Constitution than it is to do so across the entire nation.
Additionally, because our state constitutional amendments happen with much greater frequency, people are more likely to support them than federally, where people are more inclined to just leave the Constitution alone and not tinker with it.
Finally, it's not difficult to see liberals controlling two-thirds of the legislatures at some point, and they, with a majority of the people, supporting elimination of gun rights. I doubt it would happen any time soon, but it is not remotely beyond the range of possibility. But that ain't definitely gonna happen any time soon with the Second Amendment.
All that said ... the point is really not that it's easier, but that it CAN happen, and if it does, it's nice to be able to rely on the Second Amendment to back us up; hence, incorporation. You make some good points about scrutiny, but that only enhances my point: our state could apply only rational basis for gun rights, whereas the federal Court could apply something much stronger. I am not arguing we should replace our reliance on our state Constitution ... just saying the Second Amendment, if nothing else, can serve as a backup.