OH CA…Steven Lieberman
Chief Justice John Marshall was often fond of stating that “hard cases make bad law”. This is surely the case, as no one wants to see inherent injustice held as acceptable by a court because the Legislature has acted, or failed to act to provide adequate protections.
Yet, what is considered “adequate protections”?
The commercial and social interactions between people often involves a contractual principal. Both parties gain as a result of the transaction. Sometimes… oftentimes… the bargaining position between the parties is unequal. The protections of the legal system is to ensure that the forum for these interactions are knowable, and predictable. Both parties are rest assured that if their disputes need to be resolved by an impartial third party, that party will be bound by rules of conduct that prevent either of the combatants from gaining an unfair advantage.
Yet what of the State?
At our founding, we were deeply concerned about the tyranny that comes from a State granted limitless powers. We formulated a concept of limited government by ensuring that the State was only allowed to operate with specified enumerated powers. Beyond those specific “things” there is really nothing much that the State can do.
We often hear people claim that their “free speech” right is being threatened by their employers. Yet, this claim is inherently without merit. The individual is always allowed to speak. It’s just that their speech is not without contractual implications. You can say whatever you want… but your employer is also free to terminate you because of your speech.
At least to a point.
The Constitution, and more specifically the Bill of Rights, were constructed to ensure that the State could not abrogate “Fundamental Rights”. (The evolution of Fundamental Rights not with standing). Yet, we altered that meaning to the present state to say that the State can abrogate fundamental rights as long as they pass certain tests. When the rights in question affect a class of people that are defined by certain criteria, then the test in question (Compelling State Interest / No Less Restrictive Alternatives) becomes so difficult for the State to withstand, that the law the State created is typically overturned as being unconstitutional.
When your friend tells you not to say something,… and you do… they are completely allowed to distance themselves from you as their friend. They cannot be “compelled” to maintain your friendship as somehow the penalty of loss of friendship is tantamount to a violation of your First Amendment rights. The protects of the Amendments were not intended to limit the conduct of individuals amongst themselves… they were intended as protections that individuals had against the tyranny of the government.
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This brings us to California’s AB 785. Essentially, this law only makes sense if we stop thinking of ourselves as individuals, and instead view ourselves as property of the State… specifically, The State of California. Barring this philosophical shift… AB 785 is a complete abrogation of our most basic principals of limited government and individual freedom.
In a nutshell, AB 785 seeks to make the ownership of a firearm by someone convicted of a misdemeanor: that has been classified as a “hate crime”… illegal for ten years.
That seems reasonable… yes?
Unfortunately, no it does not.
The argument that the proponents of AB 785 put forth is that someone that has threatened someone else with the exercise of one of their civil rights because of the victims race, religion, national origin, gender identification, or sexual orientation is guilty of a “hate crime”.
This is by necessity a fact specific analysis.
If, I am single and begin to chat up the woman in line in front of me at the polling place… taking so long to woo her with my elegant prose… that she misses the deadline to cast her ballot, have I interfered with her civil right of voting? Since I identified her as a member of a specific class (female), have I interfered with her civil rights because of her gender? If she were to argue that I clearly had the intent to prevent her from voting because of her gender.. then yes.
Once this law has been triggered, then an automatic weapons prohibition follows.
Here is the problem: I am not, nor have I ever been, the subject of Constitutional limitations. The Constitution is intended to limit the powers of the State… not me.
Worse, the penalty for violating this law is the loss of a Constitutionally protected right… your right to keep and bear arms.
This literally makes no sense.
When the doctor tells me that as a I diabetic, I cannot eat cake… he is speaking of a knowable reality. When I tell my family to chastise me if I eat cake, I am taking steps to ensure that I remain healthy. When I further state to my family… that if I eat cake, I should be made to do push ups… I am setting up a rationale based punishment to ensure compliance with my doctor’s order. When my non-diabetic children each police each other, making each other do push ups for eating cake, it might be cute… but, it is not rational. They should not be held to the same rules for diabetics since they don’t suffer from my disease.
To punish the State for an abrogation of civil rights is wholly appropriate.
To punish an individual for an abrogation of civil rights just simply does not make sense.
Philosophy has ramifications. Since misdemeanors that are based on legislation that legislators are not empowered to regulate can be used as a means of preventing someone from exercising a fundamental right then where do we stop?
Why does AB 785 stop solely at the Second Amendment?
Why not also abrogate the Fourth and the Sixth?
It is far easier for the State to dispense with probable cause when dealing with the public.
Fourth Amendment be damned! Make life easy for law enforcement and allow them to search anyone at anytime! There is no expectation of privacy for those that have ran afoul of the law!
Hey… if they have committed a “hate crime” misdemeanor then why should they have a gun?..… and why the hell should they have access to a lawyer?!
Make everyone guilty of “something” and suddenly we have new and exciting opportunities to “fight crime”.
We can have fun with this! (Just think how safe we will all be!)