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Supreme Court Strikes Down Pre-Clearance Requirement

This is a victory for federalism, but also kind of unfortunate from a gun right point of view, because it dashes my dreams of subjecting New Jersey, New York, California, et al to pre-clearance for gun laws and regulations. Though, it looks like there may still be room for hope. From the opinion:

That is why, in 1966, this Court described the Act as “stringent” and “potent,” Katzenbach, 383 U. S., at 308, 315, 337. The Court nonetheless upheld the Act, concluding that such an “uncommon exercise ofcongressional power” could be justified by “exceptional conditions.” …

… The Act was limited to areas where Congress found “evidence of actual voting discrimination,” and the covered jurisdictions shared two characteristics: “the use of tests and devices for voter registration, and a voting rate in the 1964 presidential election at least 12 points below the national average.” Id., at 330. The Court explained that “[t]ests and devices are relevant to voting discrimination because of their long history as a tool for perpetratingthe evil; a low voting rate is pertinent for the obvious reason that widespread disenfranchisement must inevitably affect the number of actual voters.” Ibid. The Court therefore concluded that “the coverage formula [was] rational in both practice and theory.”

In other words, when state and local governments are unable to behave themselves, and respect the rights of their citizens, it may justify such far-reaching congressional intervention such as a pre-clearance requirement. Meanwhile, the anti-gun people like Mike Bloomberg, Mayor Rahm, and other members of the merry band of illegal mayors are doing their level best to create those very “exceptional circumstances” that may justify this sort of intervention. So I think I will declare my dream is not dead.

10 Responses to “Supreme Court Strikes Down Pre-Clearance Requirement”

  1. Jack says:

    Indeed your dream is not dead.

    Technically this only struck down the method used for determining preclear in the VRA.

    Which is not directly related to your idea. As the states you want to be under preclear would have to fall under a different rubric anyway.

    And as you point out there are very obvious examples of the mentioned “exceptional circumstances”.

    • Andy B. says:

      I observe that the more subjective the language of law (e.g., “exceptional,” “reasonable”) the more meaningless it becomes.

      For example, there is nothing more empty than a “right” subject to “reasonable” restrictions.

      • Arnie says:

        Amen to that, Andy B.! “Reasonable restrictions” may eventually be the death nell of the Second Amendment, since it completely contradicts and apparently overrules “shall not be infringed.” For all the good Heller did us, it may actually be the Trojan Horse that lets tyrannical restrictions (reasonable to them, oppressive to us) become the accepted law of the land. Oh I love your phrasing, “There is nothing more empty than a ‘right’ subject to ‘reasonable’ restrictions.” My lament exactly!!! I will use that!!! Thanks!!!!

    • Sigivald says:

      Exactly – the specific sort of preclearance in use here was struck down on the basis of having been essentially based on the facts-on-the-ground in 1965 rather than applying to actuality.

      If Congress had actually revisited the VRA significantly and come up with new fact-finding, and based preclearance on current conditions of voting rights violations, the Court would have (under this opinion) had no problem with it.

      • Geodkyt says:

        Likewise, had Congress addressed pre-clearance requirements in the VRA by subjecting ALL jurisdictions (not just targeted sattes and counties), it not only would have likely survived scrutiny, it likely would have been supported by those opposing pre-clearance now.

        One of teh issues was that, in a good faith effort to address very real issues, Congress effectively tried to reinstate Reconstruction.

  2. Aerodawg says:

    I think this will eventually open more avenues of attack

  3. wfgodbold says:

    I don’t think your take is accurate. As I understand it, the Court left preclearance alone, and merely invalidated the mechanics by which the the states that are subjected to preclearance are determined.

    If anything, I think this is a boon for the pro-gun side. Congress had essentially been adopting, in perpetuity, the holdings from the 1960s that justified the Voting Rights Act. The Court has now said that that is impermissible–the holdings must be current.

    If Congress were to attempt to pass an anti-gun bill using outdated or factually incorrect holdings, I think Shelby County could be used as a basis to hold that law unconstitutional.

  4. Nevermore says:

    From my initial skimming of the decision, this was invalidated because of the underlying assumptions of the law. They seemed to indicate that the law was fine when passed due to the existing conditions on voting by minorities in the 60s in those geographical areas. However, the law was re-upped in 2006 with the same assumptions and same restrictions based on those assumptions. The challenge was that the pre-clearance (Section 5) as it’s currently written would only be permissible if the same behaviors that required the law in 1965 were still occurring today. The feds couldn’t, or didn’t defend it that way and that’s why it was struck down.

  5. Ian Argent says:

    Which makes sense; the realities of politics and race are not the same as they were 50 years ago.

  6. This is good news for Alaska. We somehow got caught up in the 1960s formula, probably because we actually let our native peoples engage in civil society and be heard to some degree as opposed to cramming them onto reservations like the other Western states.

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