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State Constitutional Right to Bear Arms Opinion:

The Kentucky Constitution states,

All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: ...

Seventh: The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons.

Kentucky courts have rightly read this as protecting people's rights to have guns for their own self-defense ("in defense of themselves") and not just for the common defense. Does this, though, apply to convicted felons? Last Thursday's Kentucky Supreme Court decision in Posey v. State answers "no," but in much more detail than all the other state court decisions that have likewise held that felons are implicitly excluded from state constitutional rights to bear arms. There's even one dissenter, who would hold that some felons (though probably not those convicted of the more serious felonies) do have a right to bear arms under the Kentucky Constitution. If you're interested in either the right to bear arms or the broader question of how courts should interpret Bill of Rights provisions, these opinions are much worth reading.

Cornellian (mail):
Given the two excerpts you've posted, I suppose one can say "so much for strict construction." I wonder whether it was a penumbra or an emanation in which the Court found that "all men" meant "all men except convicted felons."
2.27.2006 6:51pm
John Jenkins (mail):
Given that "all men" at the time didn't include convicted felons (and never has), the only interpretive method that would reach the conclusion that it did here is a very strict literalism that I don't know I've ever even heard anyone advocate.
2.27.2006 7:01pm
te (mail):
Aww, cmon. "Strict construction?"

Imprisoning somebody for murder would also deprive that person of being "free and equal" wouldn't it?

There is a difference between making up laws and not knowing your ass from your elbow.
2.27.2006 7:03pm
WB:
P. 27 of the file (dissenting opinion) says

Thus, all arguments to the contrary - our founders constructed the Bill of Rights using the word "men" in a generic sense, to mean, for want of a better word, humanity. The reason it was used was to exclude corporations.

(emphasis added)

The majority also seems to have glossed over the word "inalienable." That, too, is only focused on by the dissent. The dissent notes that felons can be deprived of voting rights, but that voting is not an "inalienable right" under the Ky. Constitution. (p. 29 of the file). He then says (at p. 54 of the file)

The argument that one could be excluded from an "inalienable and inherent" right without express exclusion, yet express exclusion was required to deprive one of a "privilege" (e.g., voting), is simply untenable in the science and use of language.


I wonder what the majority's reaction would be. I'd start with the idea that, although the Declaration of Independence characterized "life, liberty, and pursuit of happiness" as "inalienable rights," the Constitution either contradicted the Declaration of Independence, or it said that "inalienable" was more rhetorical than substantive and only means in substance that these rights cannot be taken away except by due process.

The first "inalienable right" in the Kentucky Constitution is "[t]he right of enjoying and defending their lives and liberties." Yet, it appears that Kentucky has the death penalty...
2.27.2006 7:07pm
Cornellian (mail):
Aww, cmon. "Strict construction?"

Imprisoning somebody for murder would also deprive that person of being "free and equal" wouldn't it?

There is a difference between making up laws and not knowing your ass from your elbow.


Read the excerpt from the state constitution that Prof. Volokh posted. It says the right to bear arms is "inalienable." It doesn't say that the right to be "free and equal" is inalienable. Heck, strictly speaking it doesn't say people even have a "right" to be free and equal.

"Inalienable" means "incapable of alienation." The word "alienation" means to deprive a person of something. The dissent has it exactly right. The majority didn't make up a law here, they made up an exception to a law, which is just as bad.
2.27.2006 7:44pm
Cornellian (mail):
Given that "all men" at the time didn't include convicted felons (and never has), the only interpretive method that would reach the conclusion that it did here is a very strict literalism that I don't know I've ever even heard anyone advocate.

I'm not sure where you're getting the assertion that "all men" at "the time" (presumably the time that language was written) meant "all men except convicted felons" but the concept that, where the language is clear, one need look no further is hardly a radical notion. There's a difference between being a convicted felon and being a prisoner. Even after a prisoner is released he remains a convicted felon for life (with a possible exception in the rare case of pardons). Are such people excluded from all rights under the Kentucky constitution? Free speech? Due process? Equal protection? Freedom of religion? (assuming there are such rights under the Ky constitution - I haven't read it). If not, why this particular right?
2.27.2006 7:49pm
Gordo:
In addition, I would assume that according to some of the 2nd amenmdnent absolutists who post here regularly, the second half of the Kentucky right to bear arms, limiting concealed weapons, violates the 2nd amendment to the United States Constitution.

Any arguments, folks?
2.27.2006 7:58pm
Brett Bellmore (mail):
Nah. The 2nd amendment protects the right to keep and bear, own and carry, weapons. Not the right to carry them hidden. At the time the 2nd amendment was ratified, concealing a weapon was considered to be the sort of thing only a highwayman or similar criminal would do, whereas honest men bore their weapons openly.

I think in some respects fighting for concealed carry reform, instead of fighting to prevent the prosecution of open carry as "brandishing", was a mistake. Open carry at least has the advantage of getting people used to seeing guns again, which goes a long way toward extinguishing the phobias the gun control movement works to encourage.
2.27.2006 9:13pm
Clayton E. Cramer (mail) (www):
Gordo writes:

In addition, I would assume that according to some of the 2nd amenmdnent absolutists who post here regularly, the second half of the Kentucky right to bear arms, limiting concealed weapons, violates the 2nd amendment to the United States Constitution.

Any arguments, folks?
The reason that the second part of the Ky. Const. provision specifies this is that in Bliss v. Commonwealth (Ky. 1822), the 1813 statute prohibiting concealed carry was struck down for violating the right of the people to keep and bear arms. There's a detailed discussion of this, and the 1850 Constitution's revision, in my book Concealed Weapon Laws of the Early Republic.

Brett Bellmore writes:


Nah. The 2nd amendment protects the right to keep and bear, own and carry, weapons. Not the right to carry them hidden. At the time the 2nd amendment was ratified, concealing a weapon was considered to be the sort of thing only a highwayman or similar criminal would do, whereas honest men bore their weapons openly.
Uh, no. The first laws against concealed carry (which were always full of weird exemptions that rendered them hard to enforce with any regularity) were the last phase of an attempt to stop dueling. My book (mentioned above) has a detailed history of the motivations and legislative and judicial history in the eight states that adopted such laws before 1840. The evidence is very clear for Kentucky, and somewhat less clear for the other states, that the sequence was:

1. Ban dueling. Juries won't convict.

2. Require elected officials, judges, militia officers, and sometimes, lawyers, to swear an oath affirming that they had not participated in a duel, after a particular date.

3. In response, instead of the elaborate sequence of challenging another man to a duel, which sometimes led to reconciliation without bloodshed, when insulted or otherwise provoked, men of political ambitions would simply draw a knife or a pistol and kill the other party. People were, it seems, prepared to kill each over insults, but not to perjure themselves about it. (Bizarre.)

4. Okay, so we'll ban concealed carry. This prevents anyone from taking advantage of another person who doesn't know that you are armed. Also, it takes away the excuse, "I had to shoot him because I thought he might be armed."

I think in some respects fighting for concealed carry reform, instead of fighting to prevent the prosecution of open carry as "brandishing", was a mistake. Open carry at least has the advantage of getting people used to seeing guns again, which goes a long way toward extinguishing the phobias the gun control movement works to encourage.
The fact is that bans on concealed carry are relatively modern (in most of the U.S.), and the courts have not even consistently refused to recognize concealed carry as constitutionally protected.

Concealed carry creates uncertainty as to whether an adult (or adult-looking teenager) is armed, and thus deters criminal attack for everyone. Open carry (where concealed carry is prohibited) deters criminal attack only for the person who is armed.
2.28.2006 12:24am
Thief (mail) (www):

Concealed carry creates uncertainty as to whether an adult (or adult-looking teenager) is armed, and thus deters criminal attack for everyone. Open carry (where concealed carry is prohibited) deters criminal attack only for the person who is armed.


Not quite sure I understand this. If anything, open carry would be a more effective deterrent. If I'm a mugger with a gun looking for an easy mark, if I see someone nearby with an openly carried gun, does it really make sense to me to either try to mug the person with the gun, or an victim without a gun? The person with the gun could decide to intervene in case of an attack on my, which would be very bad. Mugging the guy with an openly carried gun... well, that's just suicidal.
2.28.2006 2:15am
dwildman (mail) (www):

If anything, open carry would be a more effective deterrent.


Not at all. A criminal will look for an easy mark. Open carry warns a criminal of potential resistance. Anyone that doesn't have a firearm on the hip is an easy mark.

Concealed carry means that any person could be equal or superior to the attacker in ability to use force.
2.28.2006 4:22am
Pete the Streak (mail):
Carrying openly can also make you a target; instead of simply attempting to rob/mug/assault you, the truly violent will merely shoot you first (and probably in the back), then rifle your pockets and steal your gun. Concealed carry does indeed create uncertainty in the criminal mind as to who may be a safe target in the risk/reward sense.
2.28.2006 6:29am
Brett Bellmore (mail):
I'm certain concealed carry has advantages, but the one advantage it doesn't have is the political/psychiatric one of making people understand that carrying a gun isn't a weird, unusual thing, that all sorts of people who are respectable and peaceful do it. And that's a BIG advantage in the long term.
2.28.2006 7:04am
Swen Swenson (mail) (www):
Re convicted felons being denied the right to bear arms: Note that we are rapidly approaching the point where everything not mandatory is a "felony". As an example, it's a 4th degree* felony "To knowingly ... sell, serve, or give alcoholic beverages to a minor ..." in the State of New Mexico. I don't think I'd care to have my right to bear arms subject to some prosecutor's contention that, as an experienced bartender, "I should have known that guy was under 21".

*Apparently a 4th degree felony is something considered really naughty. At this rate there will soon be 7th degree felonies, defined as "any social faux pas that offends anyone remotely politically connected". [Please note: I'm not arguing that giving liquor to minors is a good thing, so don't get MADD.]
2.28.2006 7:43am
Cornellian (mail):
Personally, I see no problem with serving alcohol to someone under 21, but over 18. Legal prohibitions on doing so are, in my opinion, purely malum prohibitum. Someone legally adult in every other respect should be free to consume alcohol on the same footing as any other adult.
2.28.2006 8:25am
tom wright (mail) (www):
If someone can not be trusted with the full range of rights, they should not be released to society.

If you would not trust them to carry a gun, leave them in jail.

Caught with a joint or drunk and disorderly in public? Not a problem. These are crimes that did not involve aggression towards others.

Caught for murder, armed robbery and such? Now THERES your problem. You can argue whether second chances should be allowed in some cases, but in general, if you have been willing to use aggression and weapons in a crime once, you have shown yourself dangerous so far as I am concerned.

And the end of the problem, if you leave them in jail until they are no longer a threat. For life in most cases I suspect.

So I think I agree more with the dissent than with the majority so far as philosophy goes. If you have paid your debt, you should be released with full rights. If not, you should not.

However, the way the majority reads the clause, in context of how similar clauses have been read historically, they were correct, I think.

But, thank Darwin, I am not a lawyer.
2.28.2006 9:51am
Clayton E. Cramer (mail) (www):
Pete the Streak writes:


Carrying openly can also make you a target; instead of simply attempting to rob/mug/assault you, the truly violent will merely shoot you first (and probably in the back), then rifle your pockets and steal your gun. Concealed carry does indeed create uncertainty in the criminal mind as to who may be a safe target in the risk/reward sense.
Shooting a potential victim might make sense in order to steal his gun or prevent him from using it--but shooting people is rather noisy, and tends to cause people that live nearby to call 911. Robbers generally prefer to get what they want more quietly.
2.28.2006 11:14am
Clayton E. Cramer (mail) (www):
I tend to agree that if a person is so dangerous that you don't trust them with bullets or ballots, they should probably be still in prison. But there are a number of widely accepted circumstances under which it is permissible to disarm someone before conviction. As much as I find the reasoning in State v. Buzzard (Ark. 1842) absurd, there is a valid point made in it:
Suppose the constitutional existence of such immunity in favor of the right to keep and bear arms as is urged by the appellee be admitted. By what legal right can a person accused of crime be disarmed? Does the simple accusation, while the law regards the accused as innocent, operate as a forfeiture of the right? If so, what law attaches to it this consequence? Persons accused of crime, upon their arrest, have constantly been divested of their arms, without the legality of the act having ever been questioned.
Of course, Buzzard then uses this exception to swallow the right whole. This is the only nineteenth century decision that I can find, by the way, that denies that the "right to keep and bear arms" is an individual right. All the rest either accept it whole-heartedly, or equivocate and hedge about the limits of it.

By the way, the decision Bliss v. Commonwealth (Ky. 1822) that I mentioned previously is here.
2.28.2006 11:26am
Gordo:
Well, I guess Kentucky's ban on concealed carry doesn't violate the 2nd amendment to the United States Constitution, so perhaps there are some limits to its scope, even for gun rights absolutists.

As for the numerous POLICY arguments raised, maybe I'll just be a Pollyanna and suggest that NEITHER concealed or open carry of firearms in public is appropriate. My gut instinct tells me that a random citizen without a gun on his or her person in public is safer than a random citizen with EITHER a concealed or an open firearm on his or her person.

As for the "mayhem in the streets" arguments that are inevitably proffered, the career of almost every armed robber tends to be very short. The key is to prevent recidivism, and the longer and longer jail sentences society metes out to armed robbers seems to do the trick on that front.

So how about we let law enforcement take care of such criminals? New York's crime rate has fallen through the floor, and I have yet to hear any plausible arguments that the reason for this is a proliferation of Bernard Goetz wannabes.
2.28.2006 2:31pm
TDPerkins (mail):
This may be found relevant. The Psycology of Self Defense.

Yours, TDP, ml, msl, &pfpp
2.28.2006 2:38pm
farmer56 (mail):
Ok

The Kentucky Constitution is just as plainly worded as the US Constitution. If the problem with concealed carry is at issue. Than, The general Assembly can do as the voters wish. By electing those to office that favor a concealed carry permit.

As to the Kentucky and the US veiw on guns. It is plain to see that what the constitutions of both, do not, allow the government to take guns.

The government does not grant me the right to own a gun. If the government granted me that right, the government could take it away.

What the US Constutution sets up in the Bill Of Rights, is a series of things that the government is forbidden to do. They cant keep me from speaking. they cant keep me from praying. They cant force me to pray. They cant take my gun. They cant take my land.(oops my bad on that one). The cant force me to testify against myself.

You got my point? After the 1 st 10, it turns into the stuff the people wanted.

The 1st 10 are about what the government is banned from doing
2.28.2006 3:35pm
Clayton E. Cramer (mail) (www):
Gordo writes:


Well, I guess Kentucky's ban on concealed carry doesn't violate the 2nd amendment to the United States Constitution, so perhaps there are some limits to its scope, even for gun rights absolutists.
This is by no means certain. If the Second Amendment applies to the states through the 14th Amendment, then the lack of laws regulating concealed carry in 1789, and the rarity of such laws in 1868, might argue that concealed carry is constitutionally protected. There are decisions by state courts into the 1950s that still recognized or implied that concealed carry laws needed to be narrowly tailored for use against criminals, not against the law-abiding.


As for the numerous POLICY arguments raised, maybe I'll just be a Pollyanna and suggest that NEITHER concealed or open carry of firearms in public is appropriate. My gut instinct tells me that a random citizen without a gun on his or her person in public is safer than a random citizen with EITHER a concealed or an open firearm on his or her person.
There's no need to rely on gut instinct. We have plenty of real world experience now, with many states approaching more than 15 years of experience with non-discretionary concealed weapon permit issuance. In addition, we have two states with no regulation or prohibition on concealed carry (Vermont and Alaska). There a few states in the middle, like Idaho, that require a license in cities and on public roads, but nowhere else.


As for the "mayhem in the streets" arguments that are inevitably proffered, the career of almost every armed robber tends to be very short.
Armed robbery isn't the only crime that armed victims solve. They solve problems like attempted rape, too. You might want to read the Civilian Gun Self-Defense blog. Most of these news clippings are in people's homes--where concealed carry isn't much of an issue--but you can find enough examples of victims who are alive today because of thugs who needed shooting, and their victim was carrying concealed.

The key is to prevent recidivism, and the longer and longer jail sentences society metes out to armed robbers seems to do the trick on that front.
It is certainly a good idea. But this isn't an either-or situation. It turns out that licensed concealed carry has turned out to be a non-problem--as even many of the initial opponents of these laws have now admitted.


So how about we let law enforcement take care of such criminals? New York's crime rate has fallen through the floor, and I have yet to hear any plausible arguments that the reason for this is a proliferation of Bernard Goetz wannabes.
Crime rates throughout the U.S. fell dramatically in the 1990s. John Lott's book More Guns, Less Crime argues that the proliferation of non-discretionary concealed carry permit laws played some part in it. I would argue that there were other causes, including longer sentences, a substantial cultural change in inner cities (where much of the improvement took place), and some graying of the population (young people are grossly overrepresented among violent criminals).
2.28.2006 3:44pm
Cornellian (mail):
Armed robbery isn't the only crime that armed victims solve. They solve problems like attempted rape, too.

It would be an interesting social experiment to observe the crime patterns of a city in which every woman carried a concealed firearm, but no man did.
2.28.2006 11:05pm
Clayton E. Cramer (mail) (www):

It would be an interesting social experiment to observe the crime patterns of a city in which every woman carried a concealed firearm, but no man did.
1. There's no way to conduct such an experiment. Criminals carry guns, regardless of the law.

2. Rapes are usually not committed by criminals armed with guns. For the most part, rapists have enough of a strength and brutality advantage over their victims to get what they want unarmed.
3.1.2006 3:07pm
Cornellian (mail):
2. Rapes are usually not committed by criminals armed with guns. For the most part, rapists have enough of a strength and brutality advantage over their victims to get what they want unarmed.

Quite true, hence my curiousity about how those encounters would turn out if the woman were armed, but the man was not.
3.1.2006 5:48pm