Original Meaning and State Constitutional Rights to Keep and Bear Arms:
A very interesting exchange in an Alaska Court of Appeals decision, having to do with whether nonviolent felons have the right to bear arms under the Alaska Constitution's right to bear arms provision, which was most recently amended in 1994. Thanks to Steven Wells for the pointer.
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I found it interesting that no Court uses strict scrutiny to evaluate a firearms prohibition or regulation.
So, the courts misinterpreted the intent of the legislative debate, used that misinterpretation as a part of a decision, and is now refusing to do more than say "oh well, we screwed up, so sue us"?
So, not only did the court misinterpret the legislative debate, they used frickin campaign literature to inform them of the intent of the amendment?
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And here we quote one of the black robed fascists, letting us know where we stand, citizens:
And is also stupid enough to wipe it into his written opinion.
Unintended consequences indeed.
So, the dissent is correct. The tortured manner by which the majority refuses to give the Constitutional provision its plain meaning is sophism at its worst.
Are we to abandon statutes' and Constitutional provisions' plain meaning from their text - and hunt for their true meaning in pamphlets generated during legislative debates?
I hope not.
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That is an interesting proposition. I don't know if the below case is dispositive, in that perhaps different law overtook this decision.
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The Alaska Supreme Court has avoided saying what you just did. As it stands, the Court says that the legislature and the people had the same understanding as to the constitutional amendment. This assumption precludes addressing the approach to be used when the legislative and popular understandings differ.
Actually, I think that's wrong. The way it seems to work is: the legislature proposes an amendment, which the people can then either accept or reject. There's no ability for the people the modify the amdendment after it's been proposed.
(I'm not an expert on Alaskan constitutional procedures, but that's how it was presented in the dissent, and I didn't notice any disputes.)
Although the dissent does raise some interesting questions about the standard of review that will eventually also have to be hashed out in the Second Amendment context. Then again, my favorite professor in law school (a well-known liberal Constitutional criminal procedure expert) once remarked, only half in jest, that "real men don't read dissents!"
You'll notice that the dissent isn't claiming that the law should be overturned, only arguing that a different standard of review is required.
I think this within the ambit of the rebriefing proposed in the dissent. Felons lose the franchise both during and following the actual service of some sentence of punishment or probation.
Whether the loss of such rights, essentially as punishment or deterrence, is constitutional is an interesting question, but certianly not precluded by the dissent argument.
As to Heller's dicta regarding its disaffect on felon in possession laws, I think these provisions were likely loosely presumed to represent the very kind of provision that would pass strict scutiny, but without briefing and focus on the narrow question it certainly can't be construed as having been decided - or even significantly portended by Heller.
Rather it does seem that the court took pains to suggest that it wasn't implying a result on the application of the individual right it found to the substance of provisions other than the complete ban at issue (or for that matter to the question of incorporation against the states).
Still, seeing how this dicta has been read a more circumspect or subtle approach seems to have been merited. One wonders whether this was loose lips sinking ships or the judicial equivalent of the Alaska phamplet designed to invite other votes (i.e. the swing vote) in Heller.
Finally, the narrow application of original meaning in Gibson seems particularly annoying. I think it fair to say that a degree of weight can be afforded to the authority of the proponent statement in terms of public understanding, but to act as if it is definitive upon its own seems the worst kind of convenience. If the contention equates to dissents logical argument that many people voted for the amendment because they thought the proponent statement was wrong, the only remaining arguments is that the proponent statement (in the context of other significant public discourse which seems all but ignored) swayed the swing votes or quite possibly did so.
But there is no reason to assume that voters disinclined to displace existing law and thus worried about how the amendment would be interpreted would not read the opponents statement that directly contradicted it. It seems that voters would have had to reconcile these conflicting views in voting and could not rely on the ballot statement as authoritative. So the sense that there was some dispositive portion of the electorate that imagined "reasonable" regulation of firearms to be protected under the amendment does not seem particularly plausible.
One other area of historical inquiry might be to track the legislative history, ballot language, and public discourse of other constitutional amendments to garner the reliance interests.
I do think the question of the adopting authority is open and interesting. Although the legislative debate is a significant context, the public meaning seems to carry the force of intent. So the question of what a citizen might have thought the amendment meant is relevant, but that Gibson court gave short shrift to that question even while effectively saying it was controlling. I think where a provision is voted up or down by the citizenry, they are the adopting authority, vs. the adoption of US constitutional amendments that are ratified by super majority of the states.
Brian
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