Wednesday, March 13, 2013

Gun Law - Initiative

In Colorado our constitution includes a keep and bear arms clause:
 Colorado: The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Art. II, § 13 (enacted 1876, art. II, § 13).

Looking at this carefully in the most obstructionist manner possible, it permits Coloradans to openly carry any firearm manufactured on or before 1876. This would include the Colt single action army and Navy models and certain Winchester lever action rifles. Others of course, but let’s leave it at that. Also included by inference are muzzle loading cannon and the Gatling gun. Today we are allowed all this and sometimes a bit more. Double action revolvers, self loading rifles and pistols for example, and with special permission, the cannons and machine guns.

Today this fairly expansive right is being nibbled away with demands that self loaders be limited to very small magazines and that the process of acquiring any firearm at all be only one small bill away from complete registration which history tells us is the necessary precursor to confiscation.

The question here is how exactly do we put an insurmountable barrier in the road to this kind of thing. The obvious answer would be a constitutional amendment. Our state has a deep and abiding dislike of the citizens making law on their own as the practice might cause people to think of legislators as self-aggrandizing oafs and not worthy of high adulation and large bribes. Every single year another measure is introduced to restrict the citizens ability to influence the law in Colorado. So far, all have foundered, but the effort is non stop. Before something succeeds, we need to get a measure out there that will protect our gun rights without seeming to be a “free guns for everybody” measure.

In Louisiana, the constitution was amended to add a requirement for the “highest scrutiny” of any law restricting the citizens’ gun rights:

The ballot question there read: "Do you support an amendment to the Constitution of the State of Louisiana to provide that the right to keep and bear arms is a fundamental right and any restriction of that right requires the highest standard of review by a court? "

The use of what is called “strict scrutiny” makes arbitrary gun laws much harder to pass.
Strict scrutiny: A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
Strict scrutiny is the most rigorous form of judicial review. The Supreme Court has identified the right to vote, the right to travel, and the right to privacy as fundamental rights worthy of protection by strict scrutiny. In addition, laws and policies that discriminate on the basis of race are categorized as suspect classifications that are presumptively impermissible and subject to strict scrutiny.
Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.

A fairly low standard is being assumed in Colorado where evidence of sloppy crafting, overt favoritism, and other practices more worthy of Chicago are used to craft this legislation.  At the Federal level, laws that touch on enumerated rights are supposedly automatically accorded the strict scrutiny status, unless the legislation has political favor, in which case the peasants are SOL.

A bill could be introduced in the legislature declaring that any legislation passed by the legislature and signed into law which impacts any enumerated right in either the Federal or the State constitutions is to be automatically accorded strict scrutiny status in any court in the state in which it might be challenged.This would be opposed by legislators with nefarious intent of course, and some effort on the part of the voters would need to be mustered to pass it, but it may well be doable.

Passing the same measure as a constitutional amendment would be easier as the pro arguments would sound like asking people to defend their rights, and the anti arguments would sound like "Mommy Knows Best".

This I believe would go a long ways toward limiting "feel good" legislation, passed with the fervor of a lynch mob convinced of its correctness.

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