This column in yesterday's Des Moines Register by the Editorial Board caught my eye. It begins:
Is state Rep. Chip Baltimore clairvoyant?
The Boone Republican was arrested last week, charged with operating a motor vehicle while intoxicated and possession of a firearm while under the influence of alcohol. Interestingly, less than 10 months ago, he voted to support legislation reducing penalties for toting a gun while drunk. Lucky for him, that bill was signed into law.
According to a police report, Baltimore was stopped by an Ames officer early Friday morning after authorities received reports of a reckless driver traveling northbound on Interstate Highway 35. With his slurred speech and bloodshot eyes, he told the officer he was on his way home after attending meetings in Des Moines, the report said.
. . .
Last legislative session, Baltimore was among the lawmakers who supported the Iowa Omnibus Gun Law.
Before this law went into effect, carrying a firearm while intoxicated was an aggravated misdemeanor, punishable by up to two years in prison. An OWI conviction provided clear grounds for revocation of a permit to carry a weapon.
The new law, which went into effect July 1, cuts in half potential jail time and allows drunken drivers the ability to keep their permits to carry handguns.
At the time, one Iowa sheriff questioned the change, baffled that state legislators recognized the danger of operating a vehicle while drunk but not carrying a lethal weapon while intoxicated.
“We know alcohol blurs judgment,” said Black Hawk County Sheriff Tony Thompson. “I’m not sure what the driving force was behind watering that down.”
The Register's earlier article reporting Baltimore's arrest is here. Notably, Baltimore was stopped when an officer observed him driving at 55 mph in a 70 mph zone entering a 65 mph zone. For those interested in DUI-related trivia (who isn't?), the National Highway Traffic Safety Administration states that driving at 10 miles or more below the speed limit is an indicator of possible impaired driving. The same is not true of speeding.
This story is my quirky introduction for a much broader discussion of misleading rhetoric regarding the "protection" of constitutional rights through legislation. For those only interested in the adventures and apparent foresight of Chip Baltimore (and accompanying DUI trivia), stop reading now!
The Omnibus Gun Law referenced in the column was lauded by advocates upon its passage as a victory for Iowans' Second Amendment rights. The Washington Post reported on the passage of the bill back in April 2017:
Branstad, the long-serving Republican governor selected by President Trump to be ambassador to China, signed a bill that many say is the most comprehensive and broadest piece of legislation on gun rights the state has ever seen. House File 517 will, among other things, allow citizens to use deadly force if they believe their lives are threatened; it will also allow them to sue local government officials if they think gun-free zones have violated their Second Amendment rights.
The signing of House File 517 last week marks the end of a decades-long battle for a bill that does more than make incremental changes to the state’s gun laws and will bring Iowa in line with its more gun-friendly neighbors such as Missouri and Wisconsin, said Barry Snell, president of the Iowa Firearms Coalition, an advocacy group affiliated with the National Rifle Association.
“Without exaggeration, House File 517 is the most monumental and sweeping piece of gun legislation in Iowa’s history,” Snell told The Washington Post. “Never before have we passed a bill in which Iowa’s Second Amendment rights are legally recognized, claimed and protected quite so profoundly as this bill does.”
Snell's statement expresses a familiar sentiment, but also reveals a common misconception about how constitutional rights function in relation to laws passed by legislatures. State laws are not needed to recognize or protect constitutional rights. If a law restricts the right to bear arms so much that it violates the Second Amendment, those who are burdened or injured by the law may challenge it and the courts will strike down the law if it is unconstitutional. The scope of the Amendment is a matter of constitutional law that is ultimately determined by the United States Supreme Court -- not by legislatures.
While I'm not surprised to see this sort of misleading rhetoric used by the head of an advocacy group, the article quoted Professor Randy Barnett who blogs at the excellent Volokh Conspiracy, who made an unfortunately similar point:
The legislation might make Iowa “the leading edge of protecting the civil right” to bear arms, said Randy Barnett, a law professor at Georgetown University.
“When you have a constitutional right, it often requires the legislation to protect that right,” Barnett said. “That’s what Iowa is doing.”Of course, states may use legislation or amend their own constitutions to reduce government's ability to restrict gun possession use. For example, Louisiana amended its state constitution to state that any law restricting the right to bear arms is subject to strict scrutiny review in the courts -- a standard that is likely higher than the (admittedly unclear) approach required by the Second Amendment to the United States Constitution. But the action of legislatures is not required to protect constitutional rights -- rather, it is the purpose of judicial review is to place protection of these rights in the hands of the courts.
I've expressed approval for certain state laws or constitutional provisions that effectively expand the scope of federal constitutional rights. Laws that do this in the Fourth Amendment context restricting unreasonable searches and seizures, for example, are a good idea -- particularly when it comes to developing technology like drones. Courts, particularly the United States Supreme Court, may be slow to react to rapid changes and the complexities of new technologies, and the legislature -- if properly informed -- can impose restrictions on law enforcement that fill in holes in the doctrine. Of course, I would not say that these laws are necessary to protect the Fourth Amendment. At most, I'd say that these laws protect people from intrusion by the government in instances where the Fourth Amendment may not apply, or may not clearly apply, and therefore are consistent with the spirit of the Fourth Amendment.
Barnett would likely argue that the courts cannot protect all violations of constitutional rights. People may lack the resources, time, or will to pursue a constitutional challenge, and laws may prevent circumstances from arising that give rise to the violation of rights in the first place. This is evident in the Fourth Amendment context, where unlawful searches and seizures are likely conducted hundreds, or even thousands, of times per day. So on a practical level, legislative restrictions may ultimately result in fewer infringements of people's Fourth Amendment rights.
But this argument does not cleanly translate to the Second Amendment context. The Fourth Amendment has been the subject of numerous Supreme Court opinions that have fleshed out a complex doctrine of protections, exceptions, and consequences of Fourth Amendment violations. But the Supreme Court has refused to return to the Second Amendment after its opinions in Heller and McDonald, opting to deny certiorari in some tantalizing cases and leave the development of Second Amendment doctrine to the lower courts. In the absence of continued Supreme Court attention, the ultimate scope of Second Amendment protection remains unclear and inconsistent across different circuits. To claim that Second Amendment rights are frequently violated and that these violations are not addressed by the courts is therefore a far less certain proposition than a similar claim regarding the violation of Fourth Amendment rights.
When politicians and academics say that laws are necessary to protect and preserve the Second Amendment, they are, at best, speaking imprecisely and, at worst, being misleading. Instead, these advocates are assuming that the unclear Second Amendment right provides certain protections and asserting that these protections be enshrined in the law in order to uphold the right. A lack of clarity and a failure of the Supreme Court to set clear standards or to revisit the Second Amendment are translated into a claimed need for legislative action -- and laws purporting to "protect" the right are born as a result.
The courts will protect rights, striking down overly restrictive laws if need be. Whether the rights are broad or narrow is for the Supreme Court to decide. Legislatures, in turn, may opine as to the spirit of constitutional rights and pass laws that provide additional protections that are consistent with the spirit of the rights. In the case of the Second Amendment, the Iowa legislature apparently believes that the spirit of the Second Amendment protects people from severe criminal penalties should they be carrying a firearm while drunk. And if the rhetoric of Snell and Professor Barnett is to be taken seriously, this is apparently what the United States Constitution envisions as well.
If lawmakers believe that respecting and protecting the Second Amendment requires legislation that decreases the penalties against those who carry firearms while intoxicated, then it's the legislature's prerogative to enact such legislation. All I can say at this point is kudos to Representative Baltimore for his foresight in supporting this legislation, and to implore advocates like Snell and Barnett to think about the legislature's role in relation to the Second Amendment before making overly broad claims.
Labels: constitutional law , criticism , humor , Iowa , politics , Second Amendment