The Kansas House and Senate have just put on the November 2010 ballot a proposed Kansas right to bear arms constitutional amendment that would read,
A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.
The current text, "The people have the right to bear arms for their defense and security," has been read as not securing an individual right in City of Salina v. Blaksley, 83 P. 619 (Kan. 1905), which was adhered to by City of Junction City v. Lee, 532 P.2d 1292 (Kan. 1975). This strikes me as an especially inapt conclusion for a state bill of rights provision, since the right is obviously protected against the state — how then can it belong to some state-defined collective, such as a militia or some such? But that's what the Kansas Supreme Court said. (City of Junction City v. Mevis, 601 P.2d 1145, 1151 (Kan. 1979), struck down a gun control law, challenged by an individual citizen, on the grounds that the law was “unconstitutionally overbroad”; this might involve an implicit conclusion that the right does indeed belong to individual citizens, but the decision didn't rest on the right to bear arms provision, and didn't purport to overrule Blaksley and Lee.) Now it looks like the voters will probably change that.
The votes were 39-1 in the Senate and 116-9 in the House. I would expect a vote comparable to the 74%-26% on the last such state right to bear arms amendment, in Wisconsin in 1998. The text of the amendment, by the way, closely follows a modern trend, as exemplified by New Mexico (1971), Nevada (1982), North Dakota (1984), Utah (1984, slightly different), West Virginia (1986), Delaware (1987), Nebraska (1988), and Wisconsin (1998).
As I discuss in my state constitutional right to bear arms article, an individual right to bear arms to self-defense is expressly secured (either by the text or by court interpretation of the text) by the constitutions of 40 states. The matter is not resolved in two states, Hawaii and Virginia. The provisions in two states, Kansas (not for long now) Kansas and Massachusetts, have been interpreted as securing only a collective right, whatever that might mean under a state constitution. And six state constitutions, those of California, Iowa, Maryland, Minnesota, New Jersey, and New York, don't mention a right to bear arms. I'm a bit surprised that Iowa and Minnesota gun rights supporters haven't gotten similar provisions put on the ballots in those states, since I take it that they'd surely pass there. But I assume the explanation is that people in those states just aren't that worried about state and local governments enacting gun controls, and aren't that interested in sending a message to people or institutions outside their own state.
Thanks to KSC Blog for the pointer.
UPDATE: Added a link to a copy of City of Salina; thanks to Clayton Cramer for putting it up.
Iowa, maybe. Minnesota, no chance, at least not unless/until the red "outstate" somehow manages to secede from the Fremen-eyed (i.e. "blue within blue") Twin Cities metro.
Kevin
I'm no expert, but I live in Minneapolis, and I would guess that this is closer to the right explanation. Hunting might not be as popular as fishing, but it's right up there. At least from my vantage, I've never felt that guns were endangered in MN.
Wonder why "arms" isn't qualified? Arms can mean whatever the imagination can dream up.
That is arguable, especially when one throws in the state constitutional convention debates on the purpose of the words.
http://www.legislature.idaho.gov/legislation/2009/HJM003.htm
link
As well, you may be quite certain that, even in states without any significant drive to enact gun control, a fair proportion of the legislature favors it. They're just being quiet out of self-preservation. A push to get the right constitutionalized would be just the thing to flush them out of hiding.
For all its modesty in application, doesn't Heller render this whole point moot? SCOTUS has declared that the US Constitution, the supreme law of the land, guarantees an individual right to keep and bear arms.
As I understand it, there's a "federal floor" to rights. This is to say that no state constitution can limit you to fewer rights than you have at the federal level.
NY CVR Art. 2 §4. Right to keep and bear arms. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.
Of course, this has been interpreted by the courts in NY to mean that you can't disarm the militia.
One possible avenue of attack against New York States discriminatory handgun licensing might be to use this provision, compared to the Heller decision that contains similar language and that the Supreme Court has decided confers an individual right. That might remove any discretion the licensing authorities have in denying carry permits, or in requiring personal references for simple ownership, or even in denying a license if they don't like you.
No. Heller was a suit against DC, not a state. The SCOTUS only had to look at the 2d Amendment as it applies to the federal government, and not whether the 2d Amendment completely or partially is among the Bill of Rights subject to "selective incorporation" against the states via the 14th Amendment.
So, at this time, it is not clear that Congress could not include gun-control provisions as a part of the requirements for receiving federal money for state operated programs. If the 2d Amendment is incorporated via the 14th Amendment, then individuals could challenge the laws states enacted to receive the federal funds. If it isn't incorporated, then no challenge could be mounted using the argument of a violation of an individual right protected by the 2d Amendment against infringement by the states. See? Lots of wiggle room there for gun control proponents.
My concern exactly. A constitutional guarantee qualified by "for any lawful purpose" is nothing but a toy for the government.
That's because the Kansas Supreme Court is acting as a legislature instead of a court. But thankfully, amending the Kansas Constitution is easier than the federal one. Time to bitch-slap those Judges again.
From my limited experience of Maryland, the eastern shore would secede if they took away the right to use shotguns against waterfowl.
To use instead of the full auto arms and military munitions they get out of the back doors of Mexican government arms depots? Why would you bother?
The claim that Mexican drug lords are being armed out of American gun stores is just another gun controller lie. The illegal traffic across the US/Mexico border goes the other way.
(And I say this as one who would like to adopt a former student of mine so she could replace her Mexican passport for an American.)
A historian's view:
New York's 1777 Constitution had no separate bill of rights but did contain several protections for individual rights. These included a statement of no disenfranchisement or deprivation of any right or privilege unless by the law of the land or judgment of peers, right to counsel, freedom of religion, trial by jury, and protection against bills of attainder. [OSA, pp.764-765]
Similarly, New Jersey's 1776 Constitution had no bill of rights but did contain some individual right protections normally associated with a bill of rights. It contained protection for witnesses and counsel in criminal trials, freedom of religion, and jury trial. [OSA, p.749-750]
Maryland had an extensive declaration of rights that is still in effect as written in 1776. It contains one of the earliest predecessors of the Second Amendment's first clause:
“XXV. That a well-regulated militia is the proper and natural defence of a free government.” [OSA, p.758]
In Revolutionary era Maryland, the embodying of the people with their own arms for defense against government tyranny was referred to as formation of a well regulated militia.
The fact is that every new state Constitution from the Revolutionary era contained protections for individual rights with most having a separate declaration or bill of rights. There were a total of eight state declarations of rights among the original thirteen states and Vermont, which has one dating from 1777. Four of those indicated that the people have a right to bear arms for defense, while four others referred to a well regulated militia as the natural defense of a free form of government. Both were intended as protections for a defensively effective armed populace.
[A humorous side note: Every modern copy of Maryland's Constitution I have seen, including a 1972 copy obtained directly from the Secretary of State's office and the current copy on the state's website, has an obvious error in the date the state's Constitution was written. The 76 in 1776 is always reversed to 1767, which was well before the American Revolution, and the error appears even when the date is spelled out. How far back this transcription error goes is anyone's guess. This fact is a pretty certain indicator that almost no one today notices very important points about our history, such as extremely important years or the tremendous differences between how terms like "militia" and especially "well regulated militia" are thrown around today compared to what they actually meant back then.]
Perhaps they are aware of the history of gun control in the UK, despite the 1689 English Bill of Rights reading...
"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;"
Heh. "semi-automatic machine guns".
I'm surprised you omitted the "cop killer bazookas".
Read it again, the Maryland Constitution was adopted by Constitutional Convention in 1867.
Those words mean that in addition to the circumstances listed, the Kansas State Legislature may provide grounds upon which people may bear arms within Kansas.
Everyone else is on their own.
I'm sure that the Kansas Supreme Court will, when it suits them, decide that the Amendment means that there is only one person in the state ("a person") who has the right to keep and bear arms. The Court will then decide who that lucky person is.
Great minds think alike. And, sometimes, so do the less great.
"SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed."
When the police is named "Daley", that's a lot of subjection.
Sort of like saying, the sun rises in the east, except when it doesn't.
- - - - -
MN manages to reverse itself in terms of legislative makeup regularly. Right now, it's a strongly liberal legislature, and, if the issue came up as a proposed bill, "shall issue" wouldn't pass. Further, (because the state legislators really do drive state opinion and political ideology through good use of bully-pulpit techniques), neither would a RKBA amendment.
We got "shall issue" mostly because this is a state full of lakes and woods and the sports-oriented types who make use of them, but you can't forget that this is also the Land of Wellstone, Humphrey, and Mondale.
Redistributionists with guns. That's us.
You can go put your head back in the sand now. Or, alternatively, plug your ears and shout "la la la, I can't hear you!"
No problem, of course I trust the ATF. How could any government agency ever be wrong about evidence of crimes?
I stand corrected and did indeed misread the century. So much for rushing to make comments. I'll still stick with my comment about how the term militia is often used today compared to how it was used during the Founding era, though.
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