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The Problem With Being "Reasonable" With Respect to
Rights
One of the recurring questions that comes with the meaning of the right to keep and bear arms is what are the limits of that right. Even judges that acknowledge that such a right exists, and is individual in nature, such as the dissent in U.S. v. Parker (10th Cir. 2004), usually hold that certain limitations on that right are reasonable, usually because the places where those limits apply are not too all encompassing. There are problems with this "reasonable regulation" approach, of which the biggest is the lack of a bright line that clearly separates "reasonable" from "unreasonable." Professor Volokh points to a Michigan Court of Appeals decision that upheld the authority of a public housing agency to bar tenants from having guns in their apartments. The defendant came to the attention of the police at least partly because she was emotionally disturbed, and perhaps suicidal. Someone concerned about her informed police that she had a gun in her home. This led to a search warrant, and eventually, to her eviction. The defendant's argument is that her right to keep and bear arms under the Second Amendment and the Michigan Constitution's guarantee has been violated. The Court of Appeals did acknowledge that the Michigan Constitution's guarantee is individual in nature, but argued that: This Court has determined that "the constitutionally guaranteed right to bear arms is subject to a reasonable exercise of the police power." Swint, supra at 363, citing Gasta, supra at 788. The state has a legitimate interest in limiting access to weapons. McFadden, supra at 540-543. Limiting access to weapons to whom? Just to tenants of public
housing? Can they prohibit gun ownership as a condition of receiving a driver's
license?
They might have been on stronger ground had they argued that there is a legitimate state interest in limiting emotionally disturbed or mentally ill people from having access to weapons, but that wasn't the basis on which the defendant was being evicted. She wsa evicted for having a gun, not being an emotionally disturbed tenant with a gun. Another part of the decision that I find disturbing is: Restrictions on the right to possess weapons in the environment and circumstances described by plaintiff are both in furtherance of a legitimate interest to protect its residents and a reasonable exercise of police power. If you assume that banning guns makes everyone safer, then this makes
sense--but this is merely an assumption, and one that seems pretty arguable to
me--especially in light of the violent crime problems (both with and without
guns) that are endemic in many public housing projects.
This is particularly true given defendant's failure to make any allegation she feels physically threatened or in danger as a resident of plaintiff?s complex necessitating her possession of a weapon to defend herself. She lives in public housing; does she really need to articulate that she
might need a gun to defend herself? Well I guess so. Leave nothing out,
including the color of the sky.
The Court of Appeals asserts that the Second Amendment is not incorporated through the due process clause of the Fourteenth Amendment--a statement that is accurate, because the Supreme Court has not done so. The rest of their reasoning, however, is why I can't take the selective incorporation method of the Supreme Court seriously: Substantive due process has been determined to safeguard against only the most arbitrary and conscience shocking intrusions by the government into personal matters. ATC Partnership v Town of Windham, 251 Conn 597, 606; 741 A2d 305 (1999). As such, even if applicable, plaintiff?s prohibition against weapons fails to "shock the conscience" or exceed the "decencies of civilized conduct." Co of Sacramento v Lewis, 523 US 833, 846; 118 S Ct 1708; 140 L Ed 2d 1043 (1998). This rather depends on whose conscience is being shocked, doesn't it? Rochin
v. California (1952) from which the term "shocks the
conscience" comes, involved police officers tried to pry a suspect's mouth open,
and then using an emetic to force him to vomit up the morphine pills. Yes, this
seems pretty shocking. But what is also shocking is to read Rochin, and
see Justice Hugo Black's concurring opinion, where he points out that the
majority was not prepared to incorporate the Fifth Amendment's protections
against the states, instead relying on "shocks the conscience," a principle
plucked out of thin air:
In the view of a majority of the Court, however, the Fifth Amendment imposes no restraint of any kind on the states. They nevertheless hold that California's use of this evidence violated the Due Process Clause of the Fourteenth Amendment. Since they hold as I do in this case, I regret my inability to accept their interpretation without protest. But I believe that faithful adherence to the specific guarantees in the Bill of Rights insures a more permanent protection of individual liberty than that which can be afforded by the nebulous standards stated by the majority. In brief, Justice Black's point was that the majority wasn't prepared to
engage in a principled position on this. They didn't like the result, but rather
than incorporate the Fifth Amendment against the states, or admit that the U.S.
Constitution contained no clause that clearly struck down this abhorrent
practice, they decided that they would just make this stuff up as they went
along. And that's exactly what the courts have been doing for decades: striking
down laws that they don't like, without any text to justify that action (such as
Lawrence), while refusing to strike down laws that they do like, but that
have clear conflicts with the actual text of the Constitution (such as the
federal assault weapons law).
Clayton E. Cramer
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