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Right to Bear Arms in Kansas, Iowa, and Minnesota:

Forty-four of the fifty state constitutions secure a right to keep and bear arms, and thirty-nine of them clearly secure an individual right -- either their text makes it clear, or the state courts have so held (quite plausibly, I think, since it would be strange to have the state constitution define in its bill of rights a right of the state itself, or of the state-run militia). So independently of one's thoughts about the Second Amendment, those state constitutions provide some constraint on state gun bans, though there have been hot debates in those states about just which gun controls are permissible notwithstanding the state provision and which aren't.

Interestingly, though, some of the states that lack a right to bear arms provision (California, Iowa, Maryland, Minnesota, New Jersey, and New York), that have right to bear arms provisions that aren't clearly individual (Hawaii, South Carolina, and Virginia), or that have right to bear arms provisions that have been interpreted as not securing an individual right (Kansas, though there's a bit of ambiguity on that, and Massachusetts) are states that one think of as pro-gun-rights. Hence my question: Do readers know of any activity in Iowa or Minnesota to add a right to bear arms provision to the state constitution, in Kansas to make clear that the right is individual, or (less likely) in South Carolina and Virginia to do the same?

I recognize, of course, that precisely because those states are mostly pro-gun, many gun rights enthusiasts might not worry too much about the legislature trying to ban guns. (They may worry about lesser controls, but generally speaking state courts have interpreted state right-to-bear-arms provisions as being relatively deferential, at least where relatively modest gun controls are concerned.) Yet I'd think that it wouldn't be that expensive to get a right to bear arms added to the state constitution in those states, and that some legislators would see such proposals as both good policy and good politics. What's more, the more state constitutions clearly support an individual right to bear arms, the more likely, I think, it is that the Supreme Court will interpret the Second Amendment the same way. (One can certainly argue that recent trends in state constitutional provisions shouldn't influence the Court's interpretation; but I suspect that they nonetheless might influence the Court.)

So what can our readers tell me about this? Any move afoot in those states to secure the individual right to bear arms in the state constitution? Any chance of helping stimulate such a move?

By the way, here's a list of state right to bear arms provisions sorted by date, which shows that some of the provisions have indeed been enacted or strengthened in the last four decades. The most recent was the brand new provision in the Wisconsin Constitution, added in 1998 by a 74 percent-26 percent vote: "The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose."

Third Party Beneficiary (mail):
"What's more, the more state constitutions clearly support an individual right to bear arms, the more likely, I think, it is that the Supreme Court will interpret the Second Amendment the same way."

I would think it would have the exact opposite effect: If a state has a 2nd Amendment analogue that is worded identically to the Federal 2nd Amendment, and then the state adds a clause that specifically says that the right is secured to the individual, doesn't that strongly imply that wording of the Federal 2nd Amendment does not confer an individual right?
9.25.2006 6:14pm
JohnEMack (mail):
Minnesota did recently pass a constitutional amendment guaranteeing the right to hunt. It is difficult to hunt ducks with a bow and arrow. The argument for an implied right to bear arms would seem to be strong.
9.25.2006 6:18pm
Third Party Beneficiary (mail):
Sorry for the double post: An analogy from contract law is where the parties have two very similar contracts on the same subject. The earlier contract has ambiguous language on some issue. The later contract has very clear, precise language on that same issue. All other things being equal, a court called on to interpret the earlier contract will typically conclude that the earlier contract's ambiguous language should not be interpreted in the same manner as the later contract's more specific language because the assumption is that parties normally add language to work a change, not merely to re-emphasize an existing point.
9.25.2006 6:23pm
Anon Y. Mous:

Interestingly, though, some of the states that lack a right to bear arms provision (California ...), ... are states that one think of as pro-gun-rights.


California is a pro-gun state? I know you live and work in California, but, so do I. It has been my impression that California has been at the forefront of limitations on gun-ownership; in both the type of weapons that are banned, as well as being difficult, if not impossible, for most residents to get a carry permit.

Would you care to expand on why you would place California in that category?
9.25.2006 6:25pm
Anderson (mail) (www):
Can't say I have an opinion on the subject, but this isn't very persuasive:
quite plausibly, I think, since it would be strange to have the state constitution define in its bill of rights a right of the state itself, or of the state-run militia.
What is "strange" about the people framing a state constitution wanting to limit or define the powers of the state?
9.25.2006 6:32pm
Thomas Kamenick (mail):
Interestingly, despite the recent addition of a right-to-bear-arms ammendment, Wisconsin still has been unable to put a concealed carry bill into law. Governor Jim Doyle has vetoed the bill every time it has passed the legislature.
9.25.2006 6:34pm
Thomas Kamenick (mail):
Anderson, it's strange because a bill of rights defines the rights of the people, as opposed to the rest of the constitution which defines rights and responsibilities of the government itself.
9.25.2006 6:36pm
David M. Nieporent (www):
What is "strange" about the people framing a state constitution wanting to limit or define the powers of the state?
Nothing at all. But he wasn't talking about state constitutions as a whole; he was talking specifically about state Bills of Rights.

It would be rather strange to interpret a section of the state's Bill of Rights as creating a power of government -- that would normally be in the body of the document -- rather than stating a right of the people. It would be like interpreting the Second Amendment as guaranteeing the right of the federal government to have an army.
9.25.2006 6:43pm
PersonFromPorlock:

Interestingly, though, some of the states that lack a right to bear arms provision (California, Iowa, Maryland, Minnesota, New Jersey, and New York), that have right to bear arms provisions that aren't clearly individual (Hawaii, South Carolina, and Virginia), or that have right to bear arms provisions that have been interpreted as not securing an individual right (Kansas, though there's a bit of ambiguity on that, and Massachusetts) are states that one think of as pro-gun-rights.

Eugene, Good Lord!.
9.25.2006 6:48pm
Eugene Volokh (www):
Anon Y. Mous, PersonFromPorlock: That's why I wrote "some of the," and later specifically referred only to "Iowa or Minnesota ... Kansas ... South Carolina and Virginia."

Third Party Beneficiary: Rightly or wrongly, the majority of federal circuits now take the view that the Second Amendment doesn't secure an individual right. Moreover, the Supreme Court held in 1875 that the Fourteenth Amendment doesn't apply First and Second Amendment constraints to state governments; and while the Court has changed its view on this question as to the First Amendment and most of the other Bill of Rights provisions, it hasn't done so as to the Second Amendment.

Thus, today, the voters in (say) Iowa would reasonably understand that the Second Amendment -- again, rightly or wrongly -- offers them no protection against state gun bans. Their enacting a state constitutional right to bear arms provision thus in no way signals endorsement of the no-individual-right view of the Second Amendment, only an understanding that this view is out there. Nor does the "parties to a contract" view operate here; we don't have the Iowa voters implicitly clarifying what Iowa voters had earlier said -- we have Iowa voters reacting to something that federal courts have done.

So enacting a state right-to-bear-arms provision wouldn't weaken the case against an individual right reading of the Second Amendment; but it might strengthen it, to the extent that some judges believe that the evolving traditions of the American people -- which are often expressed through state constitutional provisions -- should be considered when interpreting the federal Constitution.
9.25.2006 6:56pm
bjv:
A recent law passed by the Minnesota legislature allowing the carrying of concealed weapons shows they certainly wish the Minnesota Constitution contained a Second Amendment equivalent. Minnesota Statutes section 624.714 subdiv. 22 states, in part, that the "The legislature of the State of Minnesota recognizes and declares that the second amendment of the United States Constitution guarantees the fundamental, individual right to keep and bear arms. The provisions of this section are declared to be necessary to accomplish the compelling state interests in regulation of those rights. The terms of this section must be construed according to the compelling state interest test." Hardly black letter law, but interesting nevertheless.
9.25.2006 7:29pm
Anderson (mail) (www):
It would be rather strange to interpret a section of the state's Bill of Rights as creating a power of government

Point taken, but the delineation of rights is also a delineation of state power ... I guess it's one of those "how you look at it" thinks, like the line drawing of the stack of cubes.
9.25.2006 7:51pm
Third Party Beneficiary (mail):
"Thus, today, the voters in (say) Iowa would reasonably understand that the Second Amendment -- again, rightly or wrongly -- offers them no protection against state gun bans. Their enacting a state constitutional right to bear arms provision thus in no way signals endorsement of the no-individual-right view of the Second Amendment, only an understanding that this view is out there. Nor does the 'parties to a contract' view operate here; we don't have the Iowa voters implicitly clarifying what Iowa voters had earlier said -- we have Iowa voters reacting to something that federal courts have done."

Prof. Volokh, perhaps my vision is clouded by living in Colorado. The Colorado state constitution has a "Freedom of Press/Speech" clause that is phrased differently from the Federal 1st Amendment. The Colorado Supreme Court has repeatedly stated that this difference means that Colorado citizens enjoy superior rights of expressive conduct to those merely guaranteed by the U.S. Constitution (see, e.g., Tattered Cover v. City of Thornton, 44 P.3d 1044, 1054 (Colo. 2002)).

From this, I would draw the lesson that if a state added additional language to its 2nd Amendment analogue, it would simply be setting out that its citizens enjoy superior rights in the realm of the right to bear arms compared to those guaranteed by the Federal 2nd Amendment. (Indeed, the Colorado Supreme Court implicitly suggested as much in Robertson v. City &County of Denver, 874 P.2d 325, 327-28 n.6 (Colo. 1994): "In guaranteeing the right to bear arms in self-defense, art. II, § 13 of the Colorado Constitution is broader than the constitutions of several states which have been construed merely to guarantee the collective or 'state's right' to bear arms for the maintenance of the militia").
9.25.2006 7:57pm
Sasha Volokh (mail) (www):

it would be strange to have the state constitution define in its bill of rights a right of the state itself

Anderson, Thomas Kamenick, David Nieporent: I think you're all misinterpreting Eugene's point. His point (I think) is the following: There's a view out there that the Second Amendment's mention of the right of the people to keep and bear arms doesn't refer to any individual right, but only to a right that states have against the federal government. Thus, it's a right that, say, Wisconsin has, that it would be able to invoke if the federal government wanted to disband its state militia or what have you.

This view may be right, it may be wrong. But regardless, suppose you have a state constitution with a provision that's worded exactly the same. This state provision is most plausibly a right of the people against the state, not a right of the state against the federal government -- because Wisconsin has no power to unilaterally define its own rights against the federal government in its own constitution. (Of course a state constitution can define the rights of a state against its people, but that's not what we're talking about when we put a "right to keep and bear arms" provision into the constitution.)

So it makes no difference whether this is in the body of the constitution or in the bill of rights. Heck, a constitution doesn't even need to have a bill of rights; this is just a matter of fancy labeling. Wherever a right to keep and bear arms provision occurs in a state constitution, it's natural to read it as an individual right against the state -- regardless whether you read the Second Amendment in the federal constitution to protect an individual or a state right.
9.25.2006 9:21pm
arbitraryaardvark (mail) (www):
BJV: Thanks. That's a great approach. It correctly focuses on the standard of review.
There are at least two factors to consider before investing in a state constitutional change. 1, How easy or difficult is it to make the change? Do you need to wait till the every twenty years convention, or does it take two votes of the legislature and a vote of the people, or is it a certain number of petition signatures? 2, what's the standard of review, in practice? Are the state bills of rights enforced, or moribund?
And 3, for the lawyers out there, can you get legal fees for enforcing the state bills of rights?
If you are planning to add a state RTKBA, consider adding something that would specify a strong standard of review.
And avoid weasel words like "other lawful purpose."
The idea of passing a bill of rights, or at least gun rights as legislation, is a useful one. Some politicians wouldn't want to be on record as opposing a bill of rights.

TPB: Tattered Cover is a great case, but usually the colorado constitution's free speech provisions parallel that of the first amendment, and a good state clause is not a reason to infer that the second amendment doesn't mean what it says.
9.25.2006 9:52pm
Randy R. (mail):
The right to bear arms? Nonsense. I think it would be much better if the we had the right arm bears.
I'd chuckle at the bloodbath that would ensue....
9.25.2006 10:11pm
liberty (mail) (www):
Sasha: "There's a view out there that the Second Amendment's mention of the right of the people to keep and bear arms doesn't refer to any individual right, but only to a right that states have against the federal government."

This view is frightening. The idea that "the people" could mean a defined collective such as a state, without at least additionally meaning the individuals within the state, is a radically collectivist notion. The founding fathers did not understand it this way, and this interpretation of the constitution would turn the sense of the constitution inside out.

I know that some people understand the 2nd amendment this way - but not constitutional scholars or judges, right? A similar interpretation of the 1st amendment would imply that states retain this right to protected political speech within congress as a balance of power against the federal government but individual people have no right to protection of speech. According to that interpretation congress could pass a law banning anti-government speech and criminalizing newspapers that are insulting to the administration and it would be perfectly constitutional.
9.25.2006 10:32pm
Sasha Volokh (mail) (www):
liberty: I know that some people understand the 2nd amendment this way - but not constitutional scholars or judges, right?

Alas, wishful thinking! The Fifth Circuit's decision in Emerson is fun reading, and it's available here. Just read the facts section and then search for "Second Amendment" until you find the title heading of section V. Money quote (footnotes omitted, paragraph breaks added):

In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia.

This "states' rights" or "collective rights" interpretation of the Second Amendment has been embraced by several of our sister circuits.

The government commended the states' rights view of
the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens.

Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly "individual" right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. The "individual" right
to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. At present, virtually the only such organized and actively functioning militia is the National Guard, and this has been the case for many years. Currently, the federal government provides the necessary implements of warfare, including firearms, to the National Guard, and this likewise has long been the case. Thus, under this model, the Second Amendment poses no obstacle to the
wholesale disarmament of the American people. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model.

On appeal the government has abandoned the states' rights model and now advocates the sophisticated collective rights model.

The third model is simply that the Second Amendment
recognizes the right of individuals to keep and bear arms. This is the view advanced by Emerson and adopted by the district court. None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.

Bottom line: The Fifth Circuit adopted the individual rights view in this case, and I'm not aware of any circuit that has followed it since 2001 (but then again I haven't been paying attention). So that means that some non-individual-rights view (either "collective rights" or "sophisticated collective rights" ) is the majority view among federal courts.

On the other hand, note the reference to "considerable academic endorsement" (here the court cites Eugene among others) and calling the individual rights view the "standard model." So: Judges go one way, scholars another.
9.25.2006 11:21pm
liberty (mail) (www):
I like the passage later which describes the obviously correct interpretation:


The states rights model requires the word "people" to be read as though it were "States" or "States respectively." This would also require a corresponding change in the balance of the text to something like "to provide for the militia to keep and bear arms." That is not only far removed from the actual wording of the Second Amendment, but also would be in substantial tension with Art. 1, § 8, Cl. 16 (Congress has the power "To provide for . . . arming . . . the militia. . ."). For the sophisticated collective rights model to be viable, the word "people" must be read as the words "members of a select militia".(23) The individual rights model, of course, does not require that any special or unique meaning be attributed to the word "people." It gives the same meaning to the words "the people" as used in the Second Amendment phrase "the right of the people" as when used in the exact same phrase in the contemporaneously submitted and ratified First and Fourth Amendments.


There is no evidence in the text of the Second Amendment, or any other part of the Constitution, that the words "the people" have a different connotation within the Second Amendment than when employed elsewhere in the Constitution. In fact, the text of the Constitution, as a whole, strongly suggests that the words "the people" have precisely the same meaning within the Second Amendment as without. And, as used throughout the Constitution, "the people" have "rights" and "powers," but federal and state governments only have "powers" or "authority", never "rights."(24) Moreover, the Constitution's text likewise recognizes not only the difference between the "militia" and "the people" but also between the "militia" which has not been "call[ed] forth" and "the militia, when in actual service."


It is shocking that the courts have ever found in favor of either of those first two interpretations.
9.26.2006 12:21am
Brooks Lyman (mail):
Just a comment on Massachusetts: I believe that the Massachusetts' Constitution is quite explicit on the right to keep and bear arms, but sometime about 30-odd years ago, the Supreme Judicial Court (yes, their "independence" isn't anything new) came out with a ruling that the state could legally require that one be licensed in order to own a gun. At about the same time, they came out with a ruling that a homeowner confronted by a home invader had to retreat, even if it meant leaving the house! The legislature shot down the latter ruling, but not the former. I don't have the case or the Constitutional language in front of me, so no details, but that's how I recall the situation....
9.26.2006 12:43am
Randy R. (mail):
Perhaps I'm dense, but how is licensing a gun an infringement upon a right to bear arms?
And, if I have the right to bear arms, do I have the right to bear any sort of arms, such as artillery, bombs, and so on?
9.26.2006 12:55am
liberty (mail) (www):
Randy: "Perhaps I'm dense, but how is licensing a gun an infringement upon a right to bear arms? "

What if some of your least favorite congresspeople suggested that we should require licensing for the printing of pamphlets, weblogs and political gatherings; and in addition any speech that does not fall within a certain respectable range may be outlawed on a state by state basis?

Yes, some speech must be banned - the usual exceptions such as "fire" in a theatre and extreme cases where the intent and outcome is of a riot or revolution. Similary, there may be extreme cases whereby arms could be regulated such as bombs. But regulation on regular ownership of guns and regular use of speech shall not be infringed.
9.26.2006 1:05am
liberty (mail) (www):
er-
regulation shall not be used as they would infringe. You know what I mean. Its late.
9.26.2006 1:06am
whit:
of course, licensing CAN be an infringement, in the same way that having a 6 day waiting period before you are able to use the right to free speech would be an infringement.

even more specific. you are a domestic violence stalking victim. you want a gun NOW. is it an infringement to go through a licensing process vs. being able to buy it right now (issues of instant criminal background checks obviously apply).
9.26.2006 3:57am
Brett Bellmore:
Licencing is always an infringement, unless so freely done as to be rendered meaningless. A right is what you can do without the government's permission, and a license is the government's permission to do something. As the bumper sticker says, the 2nd amendment is my gun license.
9.26.2006 8:05am
liberty (mail) (www):
"the 2nd amendment is my gun license"

Ooh, nice one. I gotta buy one of those. If nothing else, It'll probably keep a few teenagers from stealing my cd player.
9.26.2006 9:29am
Raymond B. (mail):
Having lived in Iowa for a number of years, I can attest to what various people told me when I arrived: "It's much less conservative than you think."

To be sure, hunting is popular, but Iowa has the same cultural divide that you can see in the nation generally. The people who like guns handle them as a part of daily life, and the people who don't most often have never handled one at all.

And, from what I could tell, the two groups don't interact all that much. As a conservative college student, I had friends on either side, who inevitably did not know each other; as a result, stereotypes were pretty common on both sides. More than once, people were shocked to find that I approved of something as barbarous as gun rights. I seemed like such a nice guy!

Anyway, a quick review of Iowa's handgun laws is informative. To purchase a handgun, you need a license which lasts only one year. A concealed carry license also lasts one year, and they don't recognize permits from any other state. They're a may-issue carry state, and, from what I understand, the county policies range from rubber stamping just about any request to blanket refusal except for exceptional individuals... so it's not exactly the acme of gun rights in the first place. Moving to a shall-issue policy is a matter of active debate, so at least things are more likely to move in the right direction than the reverse.

As for a constitutional amendment... it's possible. Amendments are ratified by a simple majority in a plebiscite, so the bar is actually set relatively low. In order to reach that point, a proposed amendment must either be approved by both houses of the general assembly, or a by the delegates of a constitutional convention.

The state senate is split 25/25, and the Republicans have a 51/49 lead in the house. I'm guessing, here, but I'm thinking you'd be more likely to find some anti-gun Republicans ready to scuttle such an initiative than some pro-gun Democrats to help it along. Hence, I suspect that to take it that route, you'd want to wait and see if the composition of the assembly changed... but don't put too much weight on my opinion, as I'm no longer in the loop.

The constitutional convention angle is more interesting. Every 10th year, the people of Iowa vote on whether a constitutional convention should be held. I don't clearly understand the details of the process, but if the vote is affirmative, the assembly chooses the delegates, who in turn write proposals for amendments, which are then either rejected or ratified by the people.

The indirect nature of the assembly's involvement would, I think, make it a safer way for politicians to get behind such an amendment; and getting just over half the electorate to support such an amendment is definitely realistic. The next vote on holding a constitutional convention will take place in 2010, which is fortuitous: it's in the reasonably near future, but with enough time to rally people to the cause. This is good, because it'll be a very tough fight.

I hope that helped; if I hear anything interesting from my Iowegian friends, I'll pass it along. Good luck.
9.26.2006 12:09pm
Clayton E. Cramer (mail) (www):
1. The reason that Iowa's Constitution has no RKBA provision is the same reason that California's doesn't--Iowans were greatly overrepresented in the California Constitutional Convention of 1849 held at Monterey, and many parts of the 1849 Constitution reflect the Iowa Constitution of 1846. (The 1844 Iowa Constitution was rejected by the voters--vague recollection was that it was because of some of the race provisions.)

2. The 1976 Massachusetts decision concerning the Mass. Const. RKBA provision argued that because that right was "for the common defence" the right was not individual. There's a legitimate argument about whether this phrase was intended to limit the right to militia duty or not, but even in that context, there's at least a plausible argument that the right was individual in nature. Other state supreme courts that have taken the position that the RKBA was for a collective purpose (because of the "for their common defence" clause), such as Aymette v. State (Tenn. 1840), have still recognized that the right was individual in nature. It was for the purpose that, "The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution."

3. If you want to know a lot more about the history of how the courts have dealt with both the Second Amendment and state RKBA provisions, read my book For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms (Praeger Press, 1994).
9.26.2006 1:11pm
Eugene Volokh (www):
I should note that one of the prominent supporters of the Wisconsin right to bear arms provision -- the one that was enacted by a 74%-26% vote in 1998, but that had been discussed for some years before -- was state legislator Russell Feingold. In many states, gun rights are a bipartisan matter; support for gun rights tends to be more closely correlated to geography than to party affiliation.
9.26.2006 1:21pm
whit:
WA state has a very clearly defined individual right in the State Constitution.

It reads:

SECTION 24 RIGHT TO BEAR ARMS.
The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this Section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

If not for the constitution of our state, I am 100% certain, the legislature (and especially city and county councils) would do everything possible to legislate away this right. I have been present at Seattle City Council meeting where city council members proposed BANNING handguns, banning concealed carry, etc. within city limits. But there's this pesky constitution.

Sure, conservative states may have legislatures loathe to pass such law, but all it takes is one incident for legislature to go into "save the children" kneejerk legislation mode and pass some bad law regarding firearms. Imo, those state without strong constitutional protection for individual carry, etc. should seriously consider passing a constitutional amendment when and if they have the political power to do so.
9.26.2006 1:58pm
Clayton E. Cramer (mail) (www):

"the 2nd amendment is my gun license"

Ooh, nice one. I gotta buy one of those. If nothing else, It'll probably keep a few teenagers from stealing my cd player.
You may think you are being cute, but the problem isn't the burglary of an unoccupied dwelling, but when someone breaks into a house with people in it. I know four different couples who have been the victims when criminals forced entry. The first case ended up with a gang rape; the second ended up with the husband stabbed seven times when he tried to stop them raping his wife; the third case just ended up with a bad beating; the fourth case, the husband was knocked unconscious.

Now, a lot of gun control advocates argue that the use of violence is never excusable, even to prevent murder or rape. I wish that they would make that argument more loudly. Everytime they do, people who have been through traumatic crimes, or have seen the aftermath, realize what raving lunatics gun control advocates are.
9.26.2006 5:04pm
liberty (mail) (www):
Clayton,

I was being "cute" but I wasn't kidding. I am 100% behind the right to carry, concealed, in vehicles and most certainly in homes!

I am astonished and disgusted by the loss of the Englishmen's right to defend himself and his family and for that reason (along with defense against a tyrannical government) I fully endorse the individual right to bear arms.

[see also my other comments above]
9.26.2006 7:05pm
crg (mail):
I've never heard of a proposed amendment to the Minnesota constitution that would provide a right to bear arms. The hunting and fishing one is vague enough that I wouldn't expect it to guarantee the right to own a gun - it just says "Hunting and fishing and the taking of game and fish are a valued part of our heritage that shall be forever preserved for the people and shall be managed by law and regulation for the public good.".
9.26.2006 7:09pm
Randy R. (mail):
But why does everyone assume the right to bear arms should be unrestricted?
Free speech isn't totally unrestricted, because you can't incite riot or yell fire in a theater. Why not? Because of public safety reasons. That type of speech may turn deadly. It might violate another person's right to life, in fact.

For the same reason, a gun can and should be required to be liscenced. A gun is by definiation a deadly instrument already, designed to kill or maim. A gun should not be allowed by a person who is psychotic or delusional. Why not? Because of public safety reasons. A gun in the hand of the psychotic may turn deadly. It might violate another person's right to life, in fact.

Furthermore, many crimes have been solved because of the liscencing requirement. Why is that a bad thing?

Sure, people are inconvenienced. The person who wants to stop the stalker is inconvenienced. But how often does that really happen? And how often has it stopped someone who just needs to kill his wife right now? When talking about deadly instruments, I think a little bit of balance is appropriate. None of our Bill of Rights have ever been interpreted as absolute (look at the way the courts have carved exceptions out of the 4th Amendment!) Why should the 2nd be any different?
9.26.2006 9:04pm
liberty (mail) (www):
Randy,

I addressed that above. The few limitations on free speech would be more similar to banning nuclear bombs than regulating all gun ownership. There is no waiting list for speech or need to license before you write an opinion on a weblog.

And it is not about convenience. Just as with speech it isn't about convenience.

A gun is a protection whereby the people are empowered against the potential tyranny of government, a license erodes that protection as government now has a list of all potential members of a citizen militia. A gun is also protection against criminal -- criminals will never license their guns but when limitations are put on those law abiding citizens who want to carry a gun late at night, when one must spend a waiting period in fear of an angry ex-boyfriend, these are real abridgements of the right of self-protection.

I suggest you take the time to read the decision that Sasha posted above and consider the 2nd amendment for a moment as you truly consider the 1st. I doubt that, if you gave it the same respect, you'd think that licensing laws are not a very serious abridgement of the right to keep and bear arms.
9.26.2006 9:20pm
Clayton E. Cramer (mail) (www):

For the same reason, a gun can and should be required to be liscenced. A gun is by definiation a deadly instrument already, designed to kill or maim. A gun should not be allowed by a person who is psychotic or delusional. Why not? Because of public safety reasons. A gun in the hand of the psychotic may turn deadly. It might violate another person's right to life, in fact.
Care to name a state where a person with a mental illness lockup history is allowed to own a gun? You might want to read the existing federal law on gun sales, too. I think you will be surprised.

Furthermore, many crimes have been solved because of the liscencing requirement. Why is that a bad thing?
Would you care to list some of those crimes? One study completed in 1968 asked 44 states with some form of gun registration to list crimes (other than gun control violations) solved with those records in the period 1958-67. There were fewer than a dozen crimes--over ten years, in 44 states! New York State could not find evidence that the records from the Sullivan Law, in effect from 1911, had ever been used to solve a crime, other than a gun control violation.

This is not a surprise: people that commit crimes with guns usually don't leave the gun at the scene of the crime, unless they are lying on the ground, waiting for the EMTs. Even worse, people that may not lawfully possess a gun (convicted felons, for example), tend to be the most common criminal users of guns. Why would you expect a person who can't lawfully own a gun to have it registered, much less licensed?

You do know the difference between registration and licensing, right? Or are you just talking out of your hat?

Oh, you are aware that convicted felons can't be convicted of failure to register a gun, aren't you? They have a specific exemption from such prosecution, because of the Fifth Amendment, as explained in Haynes v. U.S. (1968). Only people who may lawfully possess a firearm can be prosecuted for failure to register it.
9.27.2006 12:26am
markm (mail):
The 1976 Massachusetts decision concerning the Mass. Const. RKBA provision argued that because that right was "for the common defence" the right was not individual. There's a legitimate argument about whether this phrase was intended to limit the right to militia duty or not, but even in that context, there's at least a plausible argument that the right was individual in nature. This is interesting because, as I understand it, when Congress was debating the wording of the Bill of rights there was a proposed amendment to insert "for the common defense" after "to bear arms". It was voted down.
9.27.2006 6:12pm