Friday, August 21, 2015

Missouri Gets It Wrong On Rights

In Missouri the state's supreme court has decided that the prohibition on felons possessing firearms is not constitutionally problematic. (h/t Sayuncle) Let's examine the situation, shall we?

The Missouri constitution's Article 1, Section 23 is worded thusly:

"That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those duly adjudged mentally infirm by a court of competent jurisdiction."

It was approved in August of 2014 with a little more than 60% of the vote.  The NRA as well as a state group (Missourians Protecting The 2nd Amendment) were supporters of this alteration of Missouri's constitution. Oddly enough, among the expected anti-gunowner groups that opposed this amendment, the Constitution Party of Missouri was agin it, due to some inconsistencies with the language (though they approved of the intent).

First of all, if a Right is unalienable (or inalienable for that matter), then no imposition of said Right is legitimate. So any a restriction on an unalienable Right is by default illegitimate and in this case unconstitutional. Therefore "strict scrutiny" should be unnecessary as the presumption should be that any law interfering with an unalienable right is void. Strict scrutiny would be appropriate in regard to any law that may touch that unalienable Right, but a law that directly and obviously attempts to restrict that Right should be tossed out without requiring more than a cursory examination.

But the real problem is the last sentence;

"Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those duly adjudged mentally infirm by a court of competent jurisdiction."

If a Right is unalienable, then there cannot be exceptions to it, not even for categories of people that a majority thinks should not enjoy said Right. I'm guessing that the phrase "violent felons" was used in an effort to appease the masses while offering some protection for non-violent felons, but the deficiency still remains - an unalienable Right cannot be legitimately alienated.

This notion of creating classes of people that are not afforded the protection of law concerning an unalianable Right conflicts with the Missouri constitution's Article 1, section 2;

"That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design"

If a person may be denied an unalienable Right then that diminishes that person's security and creates an inequality under the law, thus causes government to fail in its chief design according to its own constitution.

The courts opinion (.pdf) neglected such examination of the new amendment, partly because it felt it was obliged to use the older version of Section 23 (though still claimed strict scrutiny was applicable to the old version since Heller and McDonald), and because the defendant didn't bring up such issues, concentrating on the overbreadth of the law (which would mean it is not narrowly tailored to achieve a compelling government interest and thus would fail strict scrutiny based examination).

What the court did conclude was that even under strict scrutiny a ban on felons possession of firearms is narrowly tailored and achieves a compelling government interest. The court cites other cases where statistics, consensus and "common sense" make the case that convicted felons are more likely to commit violent crimes and/or misuse firearms.

The logic is flawed.

To start with the obvious, the court quotes a 7th circuit case (u.S. v. Yancey) from 2010 regarding the premise of disarming felons:

"...someone with a felony conviction on his record is more likely than a nonfelon to engage in illegal and violent gun use."

That is true. But it's true because it's currently illegal for any felon to possess firearms, thus a felon is more likely to illegally possess a firearm than a nonfelon for whom it is not illegal to possess a firearm. This is exactly the same manner of logic that Bugs Bunny used so effectively on Elmer Fudd and Yosemite Same for all those years, but it should not be persuasive to any non-cartoon character.

A felon that is otherwise free to roam about without direct, immediate supervision may, according to some compilation of statistics, be more inclined to commit violent acts. If that is true in a particular case, then the solution is not to ban otherwise free people from possessing arms, but to reform the judicial system so that unjustifiably dangerous individuals aren't walking about amongst us.

But if we are to go on statistics to determine when it's acceptable to limit or deny an unalienable Right, then wouldn't it be acceptable to use race?

"For 2013, Fox calculated that black men were about seven times more likely than white men to be arrested for murder. That would be a rate of 33 murders for every 100,000 black men, compared to 4.7 for every 100,000 whites."

So, a state law barring firearms ownership by black men would be narrowly tailored and achieve a compelling government interests according to the Missouri supreme court's logic, wouldn't it?

Let that sink in for a minute - the same rationale, including the citation of statistics for certain groups (in this case felons) could be used as effectively to restrict or negate an unalienable Right for another group (in this case black men).

You really want the government to have such power and discretion?

I disagree with the use of statistics in general, even moreso when it involves the Rights of an individual.After all, if 99 out of 100 felons committed a violent crime that wouldn't justify throwing that 1 felon back into prison until he committed a crime. Similarly, if 99 black men out of 100 committed a violent crime, that wouldn't justify imprisoning the 1 that didn't. So obviously I'm not in favor of disarming 99,967 black men because 33 out of 100,000 were arrested for murder. Nor am I in favor of disarming any felon because some other felon committed a crime again.

The rationale used by the Missouri supreme court (and the 7th circuit for that matter) would punish otherwise innocent felons by denying them their unalienable Right to own and carry weapons on the basis of some mathematical probability, and that same math could readily be applied to disarming black men.

Compelling interest. That's mentioned a lot in these types of cases. It's almost a magical phrase that excuses any government imposition, even when constitutional enumerated Rights are concerned. But there's a serious disconnect between the use of the phrase and enumerated Rights:

Rights are written down in constitutions to protect them from a government's compelling interest.

Any government has a compelling interest to disarm folks that it does not want to be armed (dissenters, the Scots-Irish, vets, 3rd party supporters, constitutionalists, rednecks, etc). It also has a compelling interest to prohibit certain forms of religion (Islam, Presbyterianism, Rastafari, Voodoo, etc) and in outlawing certain forms of speech (jury nullification advocates, 3rd party advocates, various conspiracy theorists, the Austrian School of Economics, etc). It has a compelling interest to enter any home at will and search for any items of contrabnd or evidence of a crime against the state. It has a compelling interest to do all sorts of things that it can't (in theory at least) do. It cannot do those things (again, in theory) because a constitution or two has said that goivernment must abstain from pursuing those compelling interests.

So to say that a compelling state interest is an exception to a constitutionally enumerated Right is to say that the constitution has no effect.

The court got it wrong, very wrong in its reasoning.

Sadly many courts have gotten it wrong in much the same manner. The Missouri supreme court even mentioned that consensus (in a quote from another court, ironically enough) was part of the justification to ban felons from firearm possession. Consensus is law or in science or in anything shy of a popularity contest is meaningless compared with sound logic and facts.

But sound logic is apparently lacking on the bench in the Show Me state. Here's another example wherein they discuss how the underlying felon in possession statute is not overboard:

"And it does not prevent self-defense - just possessing firearms"

 Au contraire.

I'm not in the fighting trim I was in my early 20's, but I'm still fairly capable. If someone broke into my abode and I had no firearm handy (or was just feeling mean) I could likely adequately repel him with a sword or spear or machete or tomahawk or perhaps even with just my hands and feet. If said fictional intruder has a gun then I would be effectively defenseless without one of my own.

While physically I'm still in fair enough shape to handle most unarmed threats, I don't know many women who are capable of using unarmed defense against a male aggressor effectively. I know of none that are capable of using unarmed defenses against a firearm wielding assailant.

So by denying the most effective means of self defense available in many cases the statute in question does prevent any meaningful self defense.I would much rather have a convicted felon capable of repelling boarders with a firearm than read an obituary about some woman whose 1992 conviction for writing bad checks meant she could only acquit herself well with the camp axe when the three home invaders decided it was her turn.

Claiming that denial of firearm possession doe snot inhibit self defense is delusional; it expresses ignorance of not only the law but of the practicalities of firearms and offensive and defensive violence.

Again, on that compelling interest:

"The felon-in-possession law, which bans felons from possessing firearms, with no exceptions other than possessing an antique firearm, is sufficiently narrowly tailored to achieve the  compelling interest of protecting the public from firearm-related crime. 
Therefore, it passes strict scrutiny."

In all my years of reading and writing about firearms law and politics, I have never seen any meaningful evidence that felon-in-possession laws do anything to protect the public from firearm-related crime. Apparently neither has Joe Huffman.

If we use the "common sense" that was also cited by the Missouri supreme court then we'll see that the felon-in-possession law only effectively disarms felons that intend to abide by the law. In other words, the gang banger who just got out of prison and wants to murder someone isn't going to be held back by the law. He'll either find another method to commit murder or he'll acquire a firearm through the black market. Meanwhile some other convicted felon who has been on the straight and narrow since he was released is effectively defenseless against attack in his own home by a firearm (or perhaps other weapon) wielding intruder.

Does causing a minor inconvenience (e.g. going through the black market instead of a gun store) constitute protecting the public? And does not the felon who does not intend any harm, but merely wishes to protect his or her self merit inclusion in "the public"? Therefore how is disarming him or her not contrary to the public's protection?

The main difference betwixt the progressive culture and the Gun Culture (or Scots-Irish culture, or Gun Culture 2.0 if you must) is in the former's emphasis on the collective to the diminishment of the individual. As long as it benefits the public as a whole, then the effects on an individual, or even a sizable number of individuals, is irrelevant. That seems to be the premise which this judge is using to make such unfounded declarations.

So no, this felon-in-possession law does not make the public safer, and in fact makes the public less safe as it renders effective self defense impossible for many individuals caught in its net.

As I noted in the beginning of this post, the newly enacted amendment is flawed and self contradictory. The inclusion of an exception for violent felons was a mistake, as was implying that any unalienable Right could have restrictions placed upon it depending upon a judge's analysis. The reason the violent felons exception was written in was in no doubt an attempt to assuage the concerns of folks who think that's a reasonable exception to an unalienable Right. A better move would have been to educate those folks on just how dangerous it is to allow the government to impose upon any Right. To further that end I'll once again link to an old post of mine on the subject, entitled The Wrong People.

The court in Missouri used the old version of Section 23 to reach its conclusion so it's questionable whether a non-violent felony is still grounds for denial of an unalienable Right in the Missouri court system. But it is not questionable here - no government has any legitimacy in denying any individual an inherent, pre-existing, inalienable Right. The Right to own and carry weapons is one such Right, and the government of Missouri  is wrong to impose upon it.

1 comment:

Paul Bonneau said...

I agree with your reasoning here, but come to a different conclusion: rights are a fantasy.