Wednesday, July 22, 2009

Thune Vitter amendment, the 14th amendment, and state's rights

I had a very interesting conversation today that made me think about state's rights and the 14th amendment. It started when I urged a friend to call his senators and ask them to support the Thune-Vitter amendment which I previously posted about. He replied by asserting such an amendment would violate state rights and as our conversation progressed he asserted that the 14th amendment to the US constitution infringed on state rights.

Well, I'm a big fan of state's rights, so the thought that a pro-gun law would violate state's rights got me thinking. I actually zoned out of the conversation completely at that point, and I'm hoping he didn't think that I was mad or anything, but that is off topic.

The full text of the 14th amendment can be found here, though the portion that we are interested in for the purposes of this post is the first section's due process clause which states:

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This sounds great, and certainly it has been used for good purposes. The question I asked myself was, "how has the due process clause been used to infringe state rights for wrong reasons?" I'll get to that later, but let me expound on my view of state's rights first. Be aware that I am not a lawyer or an historian, so this is really more of what I think state's rights should be, not a legal or historical perspective of what they are or have been.

In my mind, the rights of the states end where the rights of the people start. For example, I think that it is wrong for a state to regulate free speech since that is a fundamental right of the people. Its important to note here that I think free speech is a fundamental right, not a right granted by the constitution. This is an important distinction to make. Immediately, if you do not believe in fundamental rights, that is, rights that are pre-existing and that are not granted by the government or any legal document, then my views are already invalid to you. The first amendment of the US constitution expressly says that the congress shall make no law that prohibits free speech, it says nothing about the states.

So, the first amendment doesn't apply to the states, just the federal government. This means that if there is no fundamental rights, the states needn't recognize any rights whatsoever, state's rights trump individual rights. Or perhaps more accurately, the federal government offers you rights, but the state governments need not offer the same rights, thus limiting your freedom.

Now, the fourteenth amendment was put in place to prevent states from doing this. There is no question about the fourteenth amendment restricting the rights of the states. The only question is whether or not the federal government should have the ability to restrict the rights of the states, and perhaps this makes me a moderate on the issue of state's rights, but I think it should. Certainly, the states have rights, but like I said, I think that the rights of the states end where the rights of the people begin. The Bill of Rights is a list of rights reserved by the people. They are not rights granted by the federal government, rather they are a list acknowledging certain pre-existing fundamental rights. I believe that no government, whether it be federal, state, or local, can infringe on the rights listed in the Bill of Rights.

So I think that the fourteenth amendment being used to incorporate rights against the states is a good thing. Certainly there is a danger there, because it could be used to force states to comply with federal laws that are not protections of fundamental rights. I think the chief example of this is Roe vs. Wade, which protects abortion under the so called right to privacy. However, I also believe that the state's should and do have the right to leave the union at any time for any reason. So there is at least one check and balance between the states and the fed. Also, I think that fundamental rights such as freedom of speech, press, religion, self-defense, etc, is important enough that they should be protected regardless of which state you live in. Perhaps the safer way to do this would have been to require a state's constitution to at least match if not exceed the rights guaranteed in the bill of rights before the state could enter the union, though obviously it is a little late for that.

I am always open to other opinions, especially in this case. I believe my position to be reasonably well thought out, however I am obviously not an expert on state's rights and would welcome the input of anyone who does know a lot about this subject.

Now, getting on to Thune-Vitter specifically, I am still in favour of the amendment for a number of reasons, which I think I'll just list below.

1) Thune-Vitter only establishes reciprocity, it does not pre-empt state laws. Simply put, if I have an Ohio CHL, and I want to travel through PA, I must obey PA's laws concerning concealed carry. Similarly, I cannot bring my carry weapon through a state that does not issue carry permits. Thune-Vitter doesn't force conceal carry on the two states that continue to deny that right to its citizens.

2) Thune-Vitter does not change who can get a permit. Like I said before, it doesn't pre-empt any state laws. Nor does it create a national carry permit. The state's still decide who to give permits to based on their own carry laws, they simple recognize each other's permits, just like with driver's licenses.

3) An individual's right to self defense does not stop at imaginary lines in the sand. Truck drivers could benefit a lot from this legislation, they are often targets of violent crime because it is difficult for them to obtain permits for every state they may have to drive through, also they sometimes have to park and rest in unsafe areas. Families on vacation who are often prey to criminals who know they are less likely to be armed and more likely to have a large amount of cash would benefit from this as well.

4) Permit holders, as a group, are among the most law-abiding citizens in the nation. They are not the type of people who go on shooting sprees or who let their tempers get the best of them. The media and anti-gun politicians seem to confuse law-abiding permit holders in lawful possession of firearms with violent criminals in illegal possession of firearms.

So that is it for tonight. If you want conceal carry reciprocity then CALL and EMAIL your senators RIGHT NOW! There is going to be a vote on it TODAY! And of course if you have a different view on state rights or what not, please leave a civil comment. I'd love to discuss it civily.

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