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More on Instructor Certification Non-Discrimination

Following up on the post from Friday, about the State of Texas threatening to revoke certification of a Texas man who ran a radio ad stating he won’t teach muslims, I have some additional thoughts for folks who are troubled by this. Let me state up front that this whole issue is an example of why requiring training to exercise a right is problematic. If this guy were in Pennsylvania, where we do not require training, this would be largely a non-issue, because the man would be free to teach whoever the hell he wanted, and not much would be implicated in terms of the right to bear arms. He is still free to teach or not teach who he wants in Texas, but the question at hand is whether it’s appropriate for the State of Texas to prohibit discrimination as a condition of holding a certification to teach their required concealed carry course.

My position is that it’s not inappropriate for the state to mandate this. By the state issuing instructor credentials, and requiring anyone wishing to carry a firearm to take instruction from a certified instructor, it makes those instructors an instrument of the state, and an instrument of state policy. In this instance, I believe the state may instruct the people carrying out its public policy that they may not discriminate. In fact, I believe that’s what’s morally required, given the exercise of a right is at stake.

I’ll put this in different terms, since prejudice against muslims is more prevalent today, and not as widely condemned. I’ll take it back 80 years or so, to the Jim Crow era. Texas has the same policy, except they allow discrimination by certified instructors. You’re a black man, and want to get a permit. You can’t find any white instructor who will teach you, and there aren’t any black instructors in your area because getting the certification is difficult and expensive, and there are only a handful of black instructors in the whole state. For the most part, this hypothetical black man has been disenfranchised out of his right to bear arms. If I were a fair minded federal judge, and this case came before me, I’d toss the training requirement, and make it clear to the State of Texas that it either needed to fix the discrimination problem, or go without training.

I don’t like training being a condition of accessing a right, because the cost alone puts its exercise out of reach of many. In my opinion, if the state is going to require training to access a right, it had damned well do its best to make sure the required training is widely available and affordable, and part of that can be an anti-discrimination policy that applies to instructors that are certified by the state under its training program.

Many states solve this problem by either not requiring training, or accepting privately certified instruction, and perhaps Texas should as well. That would largely remove the state from the equation in regards to this guy in Texas, though I would still argue if he were NRA certified, he should lose that certification too because I just flatly don’t agree with the kind of discrimination he’s practicing on general principle, and NRA, as a private entity, is perfectly free to set non-discrimination policies for the instructors it certifies.

28 Responses to “More on Instructor Certification Non-Discrimination”

  1. Sage Thrasher says:

    Well reasoned & well stated. Couldn’t agree more: training should not be required in order to carry, but where the government does require training said training must be equally accessible to all. Also, just because you have the right to be a complete a-hole, doesn’t make it political correctness for people to call you on it and not patronize your establishment. Ditto for private organizations: I wouldn’t belong to a gun club that discriminated on the basis of race or religion, or a gun rights organization that did either.

    • Sebastian says:

      Thanks. I should also point out that I view a difference between someone speaking against Islam and someone actively discriminating against a muslim. I don’t personally think very highly of Islam as a religion, but I believe in taking people as they come. If someone comes up to me and starts preaching jihad, that’s one thing — I don’t have any problem with viewpoint discrimination — if someone then says that all muslims are jihadists, and on that basis I can discriminate against them, that’s quite another.

  2. Murdoc says:

    With you on this one. My initial reaction was “he can train whoever he wants and is free to be a total jackass if he so desires.” But people gotta have access to training because it’s a state requirement. Good post.

  3. mobo says:

    If the state requires training to excercise a right, then the state should supply the training free of charge – to anybody who desires it and in a timely manner. Simply requiring that all comers are served by by trainers licensed by the state is not enough. What if there are only a few licensed trainers in the whole state? What if the state won’t issue enough licenses to meet demand? Of course the real solution is not to require any training at all….

    • Sebastian says:

      Actually, I had a bit in a first draft of this post that said essentially that the state should pay for it, if it’s going to demand training… but I took it out because it was wandering off topic. But I agree that cost burdens on the right the state demands to satisfy a state interest ought to borne by the state.

  4. mobo says:

    Well, it’s not really off topic at all. The issue here is access to the training required by the state. Whether supplied by state licensed private entities or directly by employees of the state, there are many sneaky ways to limit access to this training. The only solution to this conundrum is to place a time limit after which the state must issue the license with or without training, similar to the time limit on background checks.

    • Sebastian says:

      I’d probably be more inclined to focus efforts on just abolishing training. I’ve never been convinced that states that don’t require it have materially worse results than states that do. The number of people applying for a license to carry with no familiarity with firearms at all is relatively minimal.

      To me, the big benefit of training is making sure people understand the law.

  5. mobo says:

    Sorry to veer a bit off topic, but it’s all part of the same puzzle.

    • Sebastian says:

      I’m not concerned about comments being off topic, generally. I do worry about doing too much subject matter in one post, though. If you do too much it ends up reading like a post over at Common Gunsense, and just rambles on without getting to a point, or wandering off topic and making a different point, or never tying up the loose end.

  6. It doesn’t address the underlying problem: What the instructor did was unlawful under federal public accommodations law, and gun owners supporting law breaking members of our community, especially law breaking with bigoted overtones and exclusionary tactics, is a major black eye to all of us firearms owners, instructors, and so on.

    Even if there was no state requirement for state certified instructors teaching a state certified course to get a state issued license, it still does not change the fact that what he did was unlawful, and it would certainly be unlawful by a firearms instructor in Pennsylvania.

    Under federal law:

    (D) an auditorium, convention center, lecture hall, or other place of public gathering;

    Trying to be cute with definitions of “interstate commerce” & “place of public gathering” doesn’t change the fact that it’s a form of business transaction and therefor a public accommodation under Heart of Atlanta and McClung.

    Firearms used during the instruction, for example, crossed a state line (unless there’s a huge amount of Texas handgun manufacturers, which I don’t think there would be). Let’s also consider the fact that non-residents can and have flown into Texas to get a Texas CHL. That makes it interstate. Of course, any students from out of state to an lecture hall style instruction, say, an NRA Basic Pistol course, makes it interstate commerce as well.

    Some of you folks have a lot of real problems with the commerce clause uses against business entities like instructors. The way it’s being dealt on the purely gun front issue is MSSA v. Holder. Even if MSSA somehow succeeds at the Supreme Court, the court will narrowly address the issue of firearms in border. It will not address public accommodations at all.

    Unfortunately, the skepticism and defense of this instructor on forums and blog comment rolls feeds into the PR slander campaign that gun owners, especially gun owners who identify themselves in some form or fashion on the internet as gun owners, are misogynists, racists, and bigots (oh, and bloodthirsty murderers too, but that’s on a separate issue).

    Simply put, this instructor is not obeying the laws of our country, and arguing that the law is unconstitutional, despite clear rulings from 50 years ago that is in fact constitutional. Remember that the Brown plaintiffs did not achieve their victory by refusing to leave the school in Topeka and getting cited/arrested in order to challenge Plessy. They applied for admission and were denied, then they sued in federal court.

    I leave you with three points:

    1) If you think that the federal public accommodations law will be struck down by this instructor’s action, you have another thing coming. Federal courts, even SCOTUS, are not going to light the fuse on the powder keg by annihilating the Federal Civil Rights Act of 1964, when they can cite the doctrine of stare decisis to keep the status quo. The only time they have departed from that doctrine is to increased perceived civil liberty, not decrease it.

    2) The instructor broke the law. Gun owners should not in ANY way shape or form support law breaking, especially in this fashion. A private conversation over instant messenger with someone else questioning purely constitutionality is one thing, but when you post on the internet stupid things that you know nothing about in regards to interstate commerce, or even worse, make stupid comments about along the lines of “all terrorists are Muslims” that I saw in the previous thread, these gun owners are especially giving Ladd Everitt/CSGV, the VPC, the Brady Campaign, and MAIG all of the ammunition they need to attack all of us, and us protesting of “not all of us are like this” doesn’t work. That leads to the third point.

    3) “This is the face of the gun owner: Bigoted, racist, wife beating murderers” is what they will drum beat. They’ll ignore the fact that more gay people are arming themselves, more African-Americans are embracing responsible gun ownership (thank you, Otis McDonald). We are winning the battle in the courts, which is helping us win the battle of public opinion as well. However, that doesn’t mean that certain segments of gun owners have the ability now to screw it all up for us by making racist and/or bigoted statements. The commentary you make could make it onto the front page of New York Times or LA Times, which is the rule I generally prescribe to when making public commentary about issues such as this.

    • Sebastian says:

      I’m not entirely certain a private firearms instructor would be considered a public accommodation under the Civil Rights Act of 1964. But this guy pretty unambiguously does, because he has a business, and his services are part of that.

      • Which is why I made the comment on my blog in regards to “missing the point”. Crockett is breaking the law. All of this gnashing of teeth about this situation and “getting rid of training” misses the obvious point.

        • Sebastian says:

          If I recall, the CRA ’64 makes discrimination a civil matter. If someone were a muslim, and wanted to deal with this, they could file a suit against him in federal court and ask for an injunction. Ironically, by doing what he did, he could be forced by the courts to train the muslim that decided to sue him.

          Also, this would be completely independent of whether or not he keep his TX certification or not. He can’t discriminate like this just because he’s in a business that serves the general public, and his business is going to be considered a public accommodation by the courts.

          The reason I didn’t cover the CRA ’64 aspects of this particular act of discrimination, is because there are legitimate libertarian objections to how the act applies to private actors. I believe those aspects of CRA ’64 were necessary, but I don’t really want to get into an argument about aspects of the Civil Rights Act that I’m uncomfortable with, even if I think it was necessary. Revoking this guys certification I think can be more easily defended, even from a libertarian viewpoint.

          Generally speaking I don’t believe in the government meddling in private relationships, so it’s not something I can passionately defend. Ultimately it was a choice of evils, and in my opinion, letting segregation continue under private instead of state sanction is a greater evil than the government telling businesses they can’t discriminate.

  7. Overthetop says:

    Maybe it is the libertarian streak in me, but I don’t buy your argument. I don’t want the state dictating who a private individual does business with. The Jim Crow analogy just fails. The whole problem with that era is that it was the State dictating the favored and disfavored groups. Unless this guy is being paid with tax dollars or given a State granted monopoly in his area, he is hardly an extension of the State. That certification is merely stating he met a training threshold. I think the market will easily take care of him. Refusing to teach half the voting public and airing racist views ensures that somebody else will be more than happy to be his competition. Let the market get rid of him, not the State.

    • Sebastian says:

      Jim Crow was a combination of public and private discrimination. After it passed, businesses sued on the grounds that it exceeded the federal government’s authority, and lost.

      I tend to agree, however, that one guy isn’t likely to have much of an impact on muslims being able to get training. But many laws deal in aggregate effects, rather than individual effects. For instance, it could be argued that redirecting my sewer outlet directly isn’t the local creek won’t have much effect on the water quality of the Delaware River, but it’s still illegal because of aggregate effects.

      You do bring up a good point about if he were paid with tax dollars, where most people would agree he can’t discriminate. But he does possess a sanction from the state that provides him with value. There’s demand for CHL training in Texas, and you need the state sanction to provide it. I’m not sure that’s really materially different than if the state opted to just hire instructors directly.

  8. mobo says:

    @Gray Peterson:

    The public accomodations point is moot as soon as the state removes the training requirement. Almost nobody will pay for training if it’s not required. In reality, most people become proficient with the use of firearms through their interactions with other shooters at the range. Most will ask for help at the counter if they’re new shooters, and there is almost always somebody willing to help.

    • The public accomodations point is moot as soon as the state removes the training requirement. Almost nobody will pay for training if it’s not required.

      That’s not the point. If Levy offered courses of instruction such an NRA-certified personal protection or basic pistol course to the public at large, he would be in violation of federal law based on religion and national origin. He’s discrimination against national origin because he will apparently teach non-christian non-Arabs (what about Jewish converts of Arab descent?), and against religion (again, requiring Arab’s to be christian, and no Muslims at all).

      He’s breaking federal law. The federal statutes takes considerations of race and religion out of the question for him when he educates the public at large as part of his business. These laws have been ruled to be constitutional on a repeated basis for decades.

      We would not be asking these questions if he told Otis McDonald he couldn’t take a class from him because he’s black, for a Texas CHL or just for an NRA Certified Pistol Course.

  9. Patrick says:

    If wide-spread, this type of discrimination can cause an institutional denial of right to an entire class of people.

    This trainer is at least honest about his views and his purpose, but civil rights history is replete with examples of only-slightly more subtle requirements: poll taxes; literacy requirements to vote; and the “Grandfather Clause”, where you do not need to pay a poll tax if your (white, pre-Emancipation) grandfather did not.

    Someone in Texas obviously gets the connection. Left unchecked, such examples could become commonplace and cause widespread denial of the right to a group. Even if restricted to smaller geographies, it would be a problem.

    Which is just one more really good reason why the government should get the hell out of the “training to practice a civil right” business, entirely. Looking at national crime and accident statistics, there is not even a minor (let alone compelling) argument for it, at all.

    Chalk this one up with “Good Moral Character” requirements to exercise a constitutional right that are adjudicated by single local officials: bad idea, bad practice and bad law.

  10. Patrick says:

    To the point about not wanting the state to meddle in private business affairs: I agree.

    But by providing a service as a state actor, this was not a private affair. It was a state certification. Public work, public effects.

    If this guy runs his own small training class with no governmental sanction, then he can omit anybody he does not like: Irish, Catholics, Gays, Amish…anyone.

    But as long as he takes money to provide a state-required service, his behavior must meet that higher standard. If he doesn’t like it, he can stop taking money from people for the state certification. I wonder if he’d stop paying his mortgage for his beliefs?

  11. mobo says:

    @Patrick:

    You are incorrect. What Gray is pointing out is this guy would be subject to federal public accomodations laws even if he were offering classes without state sanction. And I was trying to point out that there would be no market for his services in the first place if it weren’t for the training required by the state, making the whole argument pointless….

    • Bitter says:

      You keep saying there would be no market for training at all if there was no training requirement, but where is your evidence for this? I realize this is off on a tangent, but I think this is the second or third time I’ve seen you say this in the conversation, and I don’t think it can be backed up.

      Consider Pennsylvania which has no training requirement. I just did a quick search on NRA’s website of course listing. Over the next month, there are more than 150 classes being offered on just basic handgun safety and defensive handgun use. I didn’t search any of the rifle, shotgun, muzzleloading, or other classes. That only takes into account the instructors who are publicizing their NRA-certified classes, which I can promise you, is actually very few. Gun clubs run classes, commercial ranges run classes, and many other instructors keep enough income (side or primary) with their own methods of advertising. So why are there so many classes in a state where there is no training requirement if abolishing the training requirement will make a market disappear?

      • Alpheus says:

        I’ll second Bitter’s rebuttal, by resorting to anecdotal evidence (aka my own experience). I do not have a carry permit, I am highly interested in avoiding getting one, because I don’t like the idea of government “knowing” I have a gun–or even an interest in guns. Even so, I am highly interested in going to Gunsite in Arizona, or taking Massad Ayoob’s Lethal Force course, among other things. If I need to use a gun in an emergency–heck, if I just want to shoot black-powder pistols for fun–I would very much appreciate training needed to effectively use my pistol, and to make sure I’m well within the bounds of self-defense when I use it.

  12. mobo says:

    Bitter, I think I had in mind the sort of “training” you receive when the state requires it. An example of this would be the Florida CCW class, where you pay somebody to watch you fire two shots into a target three feet away. NOBODY would pay for this “service” if it were not required. Can we agree on this point?

  13. Rick says:

    Racism is stupid and is it’s own punishment. Anti-discrimination laws are just as stupid. A law that attempts to control thought is nothing less than evil. If this man chooses not to do business with a group of people, then he will suffer the consequences of losing that business. A competitor could then come and cater to this group and benefit from his stupidity. The net result is positive, since all free exchange benefits both parties. We all need our feelings hurt once in awhile, it’s the best way to learn how to be a decent person, not by government mandate.

    • Rick says:

      I’ll go ahead and pre-counter the idea that anti-discrimination laws have saved us from racism like ‘segregation’. Segregation was not just some racist guy that wanted people separate, it was the LAW. It was an evil law that attempted to control thought, by controlling actions. Laws that repeal/prevent evil laws like segregation, are good, but the flip side is not “more good”, it’s just a different kind of tyranny.

    • Racism is stupid and is it’s own punishment. Anti-discrimination laws are just as stupid.

      However, it is still the law of the land. When gun owners decide to do stupid things like convert a semi-auto into full auto (not as easy as it sounds but roll with me here), or carry a gun across a security checkpoint in an airport (Oh, I didn’t know doesn’t work), these people give gun owners a black eye in the public relations war that’s being fought against us. It makes ALL of us look bad when a member of the gun owner culture A) Commits a violation of federal law as brazenly as this guy is doing and B) Basically says that Otis McDonald cannot be trained by him (poor form).

  14. O. Rly says:

    “I don’t like training being a condition of accessing a right, because the cost alone puts its exercise out of reach of many.”

    Although training cannot be a prerequisite to the right to bear arms, to defend life and liberty, to protect property, etc., the Pennsylvania constitution allows (or could possibly require) arms training in our (public?) schools. See Pa. Const. art. III, §§ 14 and 16 (and maybe U.S. Const. art. IV, § 8, if congress could be arsed to make some necessary and proper acts for arming and disciplining us.)

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