The Brady Center to Prevent Gun Violence brief was put online today, and can be read here. Joe Huffman already notes a serious contradiction within its fundamental argument. There are a few things that stood out to me as well. Note that my criticisms here are a layman’s criticism, and can’t be taken as a serious view of the brief’s legal merit. But I will have a go. From the Brady Center brief:
Such firearms regulations are paradigmatic examples of the exercise of state “police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” Gonzales v. Oregon, 546 U.S. 243, 270 (2006) (internal quotation marks omitted). Because of the gravity of the states’ responsibility to protect public safety and welfare, they are generally afforded “great latitude” in exercising those police powers. Id. Firearm regulations are clearly an appropriate exercise of those powers, for the “promotion of safety of persons and property is unquestionably at the core of the State’s police power.” Kelley v. Johnson, 425 U.S. 238, 247 (1976).
Gonzalez v. Oregon was a case that involved the applicability of the Controlled Substances Act to Oregon’s “Death with Dignity” law. The context of the case had nothing to do with fundamental rights, and everything to do with the powers delegated to the Attorney General under the CSA vs. the state police power. Additionally, Kelley v. Johnson is a case from 1976 that had to do with whether a police officer had a fourteenth amendment right not to cut his hair per the regulations of his department. Forgive me if these cases don’t seem to shed any light over what kind of deference the state police power ought to be given when it comes to Second Amendment rights under the 14th Amendment.
The forceful governmental interests in protecting public safety and welfare that justify the states’ exer- cise of their police powers can also justify limitations on the exercise of constitutional rights. This is particu- larly true when the exercise of the right at issue in- volves conduct that affects the welfare of the commu- nity. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303-304, 308 (1940) (Although the First Amendment’s Free Exercise Clause protects both the “freedom to believe and freedom to act,” “[t]he first is absolute but … the second cannot be.”)
Cantwell was the case that incorporated the First Amendment’s free exercise of religion under the Fourteenth Amendment. But what’s really amusing is that the statute at question was whether the State of Connecticut could require a license for those soliciting for religious or charitable purposes. Get that? Whether they could license a fundamental right, and the answer was no. The Brady’s are even cherry picking the quote. The full quote from the ruling is:
The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection. In every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.
Emphasis mine. Give a bit of a clearer picture as to what the court was saying? So clearly, applicable to the Second Amendment, one doesn’t have the right to rob, brandish, or threaten with a firearm, just because one has a right to keep and bear. But the power to regulate this “freedom to act” must not “unduly infringe on the protected freedom.” The Cantwell Court goes further to say:
Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The state is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience. But to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.
That contrasts sharply with the Brady claim that regulations “such as licensing for gun dealers and owners” are among the types that should be upheld by the Courts in their quest to establish how we are to protect this important fundamental and enumerated right. This is just one brief aspect of the brief, but there is no doubt much more that could be picked apart. I will leave that for others who are more skilled an qualified on legal matters than I am.