Balkinization  

Monday, March 11, 2013

The Voting Rights Case You Haven’t Heard Of

David Gans



More than a week after oral argument in Shelby County v. Holder, the scorn expressed by Chief Justice Roberts, Justice Scalia and others towards the Voting Rights Act continues to dominate the news.  Whether it be Justice Scalia’s statement that the Voting Rights Act survives only because of the self-perpetuating power of “racial entitlements” or Chief Justice Roberts’ dubious claim that the state of voting discrimination may be worse in Massachusetts than Mississippi, there has been an outpouring of coverage highlighting just how the weak the arguments against the Voting Rights Act are.  As Linda Greenhouse put it, it would be “an error of historic proportions” – akin to Plessy and other travesties in Supreme Court history – to strike down the Voting Rights Act when the Constitution expressly gives to Congress the power to eradicate racial discrimination in voting.  With the focus on whether the Court will strike down our nation’s most iconic civil rights law, there has been virtually no attention to the fact that, when the Justices convene again on March 18th, the Supreme Court will hear oral argument in a second major voting rights case, Arizona v. Inter Tribal Council.  But Inter Tribal Council is a very important case that will have huge implications for Congress’ power to protect the right to vote and to enact new, needed reforms in federal elections.

Inter Tribal Council concerns the validity of an Arizona law, adopted by the voters in 2004, requiring citizens to submit satisfactory documentary proof of citizenship in order to register to vote.  If Arizona succeeds in its appeal, the effect will be to gut another critical voting rights statute, the National Voter Registration Act, designed to remove state barriers to voter registration in federal elections.  In Inter Tribal Council, as in Shelby County, conservatives are ignoring the express powers that the Constitution gives to Congress to protect the right to vote, a fundamental right recognized throughout the Constitution’s text.   

The Inter Tribal Council case concerns the scope of Congress’ powers under the Elections Clause contained in Article I, Section 4 of the Constitution, which gives to Congress the express power to “make or alter” state law regulating the time, place, and manner of federal elections.  As CAC’s brief, co-authored with the Brennan Center for Justice and filed on behalf of prominent constitutional law professors, including Pulitzer-Prize winning historian Jack Rakove, explains, the Founders of the Constitution inserted this provision in the Constitution to ensure that the American people would have the right to freely select representatives of their choice without interference by the states.  James Madison stressed the importance of the federal role in securing equal voting rights: “Should the people of any state by any means be deprived of the right of suffrage, it was judged proper that it should be remedied by the general government.”  Because the right to vote was an “important and sacred” right, the Founders of the Constitution explicitly gave to Congress the power to “secur[e] to the people their equal rights of election.”  The text and history of the Elections Clause shows that the Constitution’s protection for the right to vote dates all the way back to the Constitution’s Founding.  Concern that states would not respect the right to vote is a theme that runs through our entire constitutional history.  

In enacting the National Voter Registration Act, Congress used its explicit power to “make or alter” state law to provide a simple, uniform method of voter registration that would guarantee access to the ballot for all eligible voters in federal elections.  Congress did not want states piling on additional restrictions on the voter registration process that would make it more difficult for Americans to register to vote.  To that end, Congress provided for a single “Federal Form” to be used for mail-in voter registration for federal elections throughout the nation.  The issue in Inter Tribal Council is whether, under the Constitution, Congress can establish a nationwide system of voter registration for federal elections or whether states retain the authority to add their own restrictions.  Despite the Constitution’s express grant of power to Congress over the time, place, and manner of federal elections, Arizona argues that, because it has the power under the Constitution to set qualifications for voting in federal elections, it may lawfully require citizens who register to vote in federal elections to submit satisfactory documentary proof of citizenship.   Invoking the principle of constitutional avoidance, Arizona argues that the National Voter Registration Act must be narrowly construed.   In its view, the State’s sovereign right to register those it deems properly-qualified voters trumps Congress’ power to protect the right to vote in federal elections.     

This should be an open and shut case.  The National Voter Registration Act does not permit states to enact burdensome voter registration laws like Arizona’s, which can disenfranchise citizens and deny them their constitutional right to vote.  To secure to Americans their federal constitutional right to vote, the NVRA mandates that “each State shall accept and use the mail voter registration application form prescribed by the Federal Elections Commission . . . for the registration of voters in elections for federal office,” a form that requires registrants to assert, under penalty of perjury, that they are U.S. citizens, but does not require documentary proof of citizenship.  Under the Constitution, it is Congress, not the states, that has final say over the rules applicable to voter registration in federal elections.   As the text and history of the Elections Clause shows, because of distrust of the states concerning federal elections, the Founders of the Constitution gave Congress the power to override restrictive state laws, like Arizona’s, regulating the time, place, and manner of federal elections. 
Contrary to Arizona’s claim, the National Voter Registration Act does not all interfere with the state’s authority to regulate the qualifications of voters in federal elections.  Consistent with more than a century of Elections Clause precedent, the Act regulates the process of voter registration – a matter conceptually separate and distinct from the setting of voter qualifications – that falls squarely within Congress’ power under the Elections Clause to regulate the manner of elections.  Indeed, the Act specifically recognizes citizenship as a qualification for voting; it simply does not permit Arizona or any other state to require documentary proof of citizenship as a pre-condition on voter registration.  Arizona, of course, is free to urge Congress to amend the Act to make it more to its liking, but it may not simply ignore Congress’ express power, established in the Elections Clause, to “make or alter” state law in order to protect the right to vote in federal elections and provide a uniform means of ensuring that federal elections are decided, as the Constitution provides, by the people.    

Both Shelby County and Inter Tribal Council pose a fundamental question of constitutional fidelity: will the Court’s conservative Justices honor the Constitution’s text and history that gives Congress broad powers to protect the right to vote from state infringement?  Beginning at the Founding, continuing through Reconstruction and beyond, it has been a pillar of our constitutional system that the right to vote is a fundamental aspect of our birthright as American citizens and that Congress has broad power to protect the right to vote and give meaning to our Constitution’s promise of rule “by the people, of the people, and for the people.”  Inter Tribal Council, like Shelby County, test whether conservative Justices will pay heed to these fundamental principles or look for ways to license voting discrimination and disenfranchisement.  

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Arizona v. Inter Tribal Council.  This post is cross-posted at Text and History.

Comments:

Query: If demographic changes in time result in non-white voting majorities, would the Voting Rights Act and the National Voter Registration Act (if such Acts are not watered down in Shelby County and Inter Tribal Council) be available to protect white voting minorities from actions taken by states controlled by non-white voting majorities making voting by whites more difficult?
 

"This should be an open and shut case. The National Voter Registration Act does not permit states to enact burdensome voter registration laws"

But it does allow, indeed require, them to clean up their voter registration rolls. The systematically unenforced side of HAVA. I suppose it would be a trifle inefficient to register people to vote without gathering appropriate evidence of their being qualified, and then to immediately purge them if they don't provide it, but it seems likely to be legal for a state to do this.
 

Brett puts the burden of proof on the wrong side. The prospective voter has said under oath that s/he is a citizen and resident. It should be up to the state to disprove that. Historically, removal from the voting rolls has been the result of an individualized challenge to a voter subject to judicial review. However, Republican disenfranchisers have replaced this with computerized matches of dubious validity from which there is no appeal.
 

Take a peek at Louis Michael Seidman's "A Thought Experiment" available at SSRN:

Http://ssrn.com/abstract=2230484

consisting of a two-page "dissent" by Justice Scalia in Brown v. Bd. of Educ., presumably inspired by Scalia's comments at oral arguments on Shelby County (as well as other statements made by Scalia). The "dissent" is too short to quote "Scalia Bytes [sic]" but it notes the slippery slope without actually using that phrase.
 

"Brett puts the burden of proof on the wrong side."

When I registered to vote I had to provide proof of residency. I fail to see how proof of citizenship is in any way different, aside from the fact that requiring it greatly inconveniences illegal aliens.
 

Brett's proof of residency, consisted of what? Utility bills? Property tax bills? How burdensome might libertarian Brett's efforts have been to prove his residency?
 

"Historically"

Brett doesn't think much of that sort of thing though from time to time cites history in respect to gun rights.

The whole debate is over what "appropriate evidence" is so citing that doesn't help us much.

 

It was certainly more rigorous evidence than my unsupported word, which is the current federal standard for citizenship for purposes of registration.
 

There are, by most estimates, roughly 10 million or so undocumented immigrants in the US. There are 300 million citizens. If we ask a random person on the street if s/he's a citizen, the odds are 30-1 that the true answer will be yes. Since few undocumented immigrants register to vote, the odds will, of course, be higher in that case.

The question is, how high do those odds have to be in order to make "proof" of citizenship more expensive than it's worth? The fact is, it's actually hard to "prove" citizenship. There is no national ID card. A passport would presumably do it, but most people don't have passports. Perhaps a birth certificate combined with picture ID, but even that would hardly be foolproof.

The burden of "proving" citizenship is pretty high, the risks are pretty low. And that's discounting the fact that actual voter fraud is essentially non-existent.
 

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Talking past the point doesn't change it.

Also, even here, Brett arguably misleads. The ruling below notes that said "word" is under penalty of perjury and requires an attestation by signature or mark.

This is not the same as let's say only requiring a verbal "word," including such a requirement that might make lying illegal (e.g., speaking to Congress) but not "perjury" (speaking to Congress under oath).

To remind, the specific issue in the case here is the state's power pursuant to Art. I to pass such a provision, not the merits of it. On that, I second Mark Field's comment.
 

Perhaps Brett with his engineering skills can quantify, in ergs (one or more?), his expenditure of " ... more rigorous evidence than my unsupported word, ... " in proving his residency.
 

"The ruling below notes that said "word" is under penalty of perjury and requires an attestation by signature or mark."

Which, without an enforcement mechanism, would mean nothing to somebody willing to illegally enter the country in the first place.


 

By that logic, all courtroom testimony is worthless. Perjury is the enforcement mechanism in both cases.
 

Swearing to God will mean "nothing" to those who cross what to them might be arbitrary borders, assuming of course that the non-citizens in question even did so?

This game of moving the goalposts is like whack-a-mole without tickets for the stuffed animal.
 

Mark, "perjury" is the crime, it's not an enforcement mechanism. If somebody lies under oath, and you have no mechanism in place to discover the lie, the oath is only as meaningful as their conscience dictates.

The insistence that there shall be no mechanism to discover this particular perjury is fairly transparently intended to facilitate it's commission.
 

Wayne Madison pressured the value of the govt part in obtaining equivalent voting rights: “Should the individuals of any condition by any indicates be limited of the right of Diablo 3 Gold suffrage, it was assessed appropriate that it should be eliminated by the common govt to Runescape Gold. Because the right to elect was an important and sacred” right, the Creators of the Structure clearly provided to The legislature the energy to Guild Wars 2 Gold secur[e] to the individuals their equivalent privileges of selection.
 

Brett's doozy of a sentence:

"The insistence that there shall be no mechanism to discover this particular perjury is fairly transparently intended to facilitate it's [sic] commission."

is worthy of a Dilbert comic strip. Who is insisting that there be no such mechanism? If evidence is provided that a voter committed perjury in his statement, steps can be taken via due process of law to punish the perjurer; and that punishment may serve as a basis to deny future voting (at least for some period of time). Perhaps Brett thinks it is too much of a burden to place upon a challenger.
 

For Brett's edification, this link:

http://tpmmuckraker.talkingpointsmemo.com/2013/03/marguerite_kloos_nun_voter_fraud.php?ref=fpa

at Talking Points Memo addresses alleged voting fraud enforcement mechanism in Ohio.
 

Perjury is both a deterrent and an enforcement mechanism. Lots of times crimes are established as enforcement mechanisms. Lying to Congress isn't intrinsically wrong; the crime is there to enforce telling the truth.

There are other enforcement mechanisms for voter fraud too. They just don't come up very often because they're cumbersome and it doesn't happen very often.
 

Attorneys frequently prepare or review for clients documents to be signed by them under the pains and penalties of perjury. Attorneys serve as gatekeepers by informing such clients of the potential consequences of committing perjury. This doesn't mean that all clients will heed such advice but the system works fairly well. Consider tax laws based upon self-reporting. Yes, there are some frauds, but the system works for the most part. To vote, one need not engage the services of an attorney. Is the system perfect? No, but it works fairly well, even when we don't like the results.
 

"Which, without an enforcement mechanism, would mean nothing to somebody willing to illegally enter the country in the first place."

I would think that the last thing someone here illegally would want to do is to possibly draw attention to themselves by committing voter fraud (what's in it for them?). Given the very small value of any individual vote (see Anthony Downs work) why would any sane person risk that?

Having said that there seems to me to be a reasonable middle ground on voter ID: by all means require more stringent identification, but make the getting of that ID incredibly easy (we spend money to set up, staff and total voting areas in an election, why not consider it part of election expenses to have mobile registration programs spend a few days in every precint/ward getting people the proper ID?).
 

"It was certainly more rigorous evidence than my unsupported word, which is the current federal standard for citizenship for purposes of registration".

i know that quite some time ago i said i was no longer going to comment on this blog, but brett has raised a nice point that would be nice to reply to. i understand that you were required to provide something more substantial than just your word that you were eligible to vote in your district. it would be interesting to know exactly what you were required to produce. if it was a government issued photo i.d., great. if not, why do you think it should be required for others, but not for you?
 

"by all means require more stringent identification, but make the getting of that ID incredibly easy"

Absolutely agree. If ID is going to be required to vote, obtaining it must be free and reasonably easy. Though I will continue my policy of rejecting complaints on this subject coming from anybody who wants any other civil liberty subject to greater constraint.

PHG, for registration I provided my driver's license, to obtain which I had provided a copy of my apartment rental contract to establish my address. As I said, somewhat more rigorous than my unsupported word.
 

"Though I will continue my policy of rejecting complaints on this subject coming from anybody who wants any other civil liberty subject to greater constraint."

I assume that you agree that most civil liberties should be subject to less constraint.

 

No, I think *all* civil liberties should be free from constraint, save any inherent in the liberty. None of this "most" bs meant to open the door to making some civil liberties 2nd class.

In this specific instance, I don't have a free floating right to vote. I have a specific right to cast a particular person's vote, in a particular place. Therefore it's reasonable to require people to demonstrate that they are who they claim to be, that they reside where they claim they do.

Most civil liberties are not nearly so particular, freedom of speech, the right to keep and bear arms, for instance, do not have that specificity that justifies requiring somebody to prove their identity. Your identity and residence are not directly relevant to the exercise of the right.
 

Brett

Do you think the 2nd Amendment allows for aliens to keep and bear arms within the United States? And wouldn't measures barring certain people (say, for example, those adjudicated mentally ill, or minors) from keeping and bearing require proof of identity (and possibly residence) to have much meaning?
 

Let's compare Brett's policy on voting with his absolutist version of the 2nd Amendment. Brett on voting:

"Therefore it's reasonable to require people to demonstrate that they are who they claim to be, that they reside where they claim they do."

But Brett's absolutist 2nd Amendment view would claim that a universal background check would be an infringement of the liberty of a person who wishes to own a gun.

Statistically, a false vote will have less killing power than a gun in the hands of someone who cannot pass a universal background check.

Brett's policy is out of step with both Heller and McDonald.

 

"But Brett's absolutist 2nd Amendment view would claim that a universal background check would be an infringement of the liberty of a person who wishes to own a gun."

Not if it were instant and free; The only problem is that it's essentially useless, except as preparation for infringement. In a nation with a history of such infringment, that rises to the level of a constitutional issue.

There may be a presumption the government is acting in good faith, but that presumption has been comprehensively rebutted by 80 years of history on this topic.
 

All privileges and immunities of citizens can only be exercised by citizens. I assume you'd support ID checks for those too.
 

Brett

You don't think it might be useful in keeping guns out of the hands of some people who we might agree should not have them? Not even possibly?
 

The very concept of civil rights rejects the notion that the government is entitled to do all things which have some utility. Warrentless searches, for instance, can have great utility in fighting crime.

But to address your question, I am unaware of any means of "keeping guns out of the hands of some people who we might agree should not have them" other than imprisoning them. Background checks are about as effective at accomplishing this as carding is at keeping booze out of the hands of teens. Even prohibitions coupled with general illegality are not notably effective in keeping people from getting pot, how do you expect background checks to keep criminals from obtainin an item for which a black market already exists?

I would say the great lesson of the 20th century was that Prohibitions are, and always will be, a failure.

And it is almost always a mistake to confuse the passage of a law with having achieved the law's aim.
 

Brett

If we stopped carding teen-agers at all, you really don't think there would be more alcohol bought by teen-agers, or if pot were legal there would be some increase in its purchase? That's a pretty remarkable statement, contrary, for starters, to any economic theory I've ever heard of (putting obstacles in people's way might give rise to black markets, but by increasing costs it should lead to some reduction in the thing restricted).

I think the idea with background checks is that it provides at least some deterrent/blocking of questionable sales, and while it might not be super-effective at that, it's a relatively small burden on the exercise of the RKBA that it's permissible.

BTW-do you think teenagers and/or aliens should be allowed to purchase firearms?
 

This comment has been removed by the author.
 

A libertarian should be well aware how imprisonment isn't the only effective means to keep people from doing things, including things they might have the right to do.

Imprisonment is not the only way the government penalizes people, nor is it the only successful means of enforcing certain laws. This applies both to keeping guns out of the hands of certain people w/o a 2A right to them and other things, including voting as appropriate.
 

"Your identity and residence are not directly relevant to the exercise of the right."

Yes, it is. Certain people -- minors, felons, those with certain mental ailments come to mind -- might not have a RKBA. Other licit regulations also fairly "directly" involve residence in certain cases.

As to "good faith," if we want to cite "history," that points to some lessons in the voting context too. Unless we want to pick and choose our fundamental rights here.
 

"The question is, how high do those odds have to be in order to make "proof" of citizenship more expensive than it's worth? The fact is, it's actually hard to "prove" citizenship. There is no national ID card. A passport would presumably do it, but most people don't have passports. Perhaps a birth certificate combined with picture ID, but even that would hardly be foolproof."

How do all these hapless citizens work for a living, given the need to prove eligibility by providing documents to fill out an I-9 form?
 

"By that logic, all courtroom testimony is worthless. Perjury is the enforcement mechanism in both cases."

Well, that and cross-examination. We don't normally let witnesses merely submit a written statement about an issue of disputed fact and accept them at their word.
 

"Yes, it is. Certain people -- minors, felons, those with certain mental ailments come to mind -- might not have a RKBA. Other licit regulations also fairly "directly" involve residence in certain cases."

People can be under restraining orders prohibiting them from accessing the internet, or other fairly common activities. We don't, however, generally require people to prove that they are not so subject in order to exercise a civil liberty.

The reason voting is a little bit of an exception is because you don't have a right to vote anywhere you please, as often as you please, but instead in a particular place, once per election. This makes identifying you and your place of residence an inherent aspect of exercise of the right.

Whereas limitations on where you can buy a gun, or how many you can buy, are not inherent to the right, but rather to infringements of it.


 

"How do all these hapless citizens work for a living, given the need to prove eligibility by providing documents to fill out an I-9 form?"

The number of people who haven't worked in some time is not insignificant. Also, consider a person may have these forms and get a job, then work that job for decades losing the forms. It can be a real Byzantine maze through several bureaucracies to get the proper ID back.

Brett

I'm not sure why you are avoiding answering whether aliens and minors have a RKBA. If they do not wouldn't this be an interest supporting some type of proof of citizenship (and age) in order to exercise RKBA?
 

"Well, that and cross-examination."

As any litigator knows, this is a weak reed. A lot of testimony comes in via declaration, and gets accepted as true. Cross examination is effective only when there's both reason to think there's been a lie and the evidence to impeach. Neither is very common.

If there's ground for suspicion of fraudulent voting, then an investigation would be much more effective than cross-examination.

"How do all these hapless citizens work for a living, given the need to prove eligibility by providing documents to fill out an I-9 form?"

Probably the same way I did: my secretary looked at me and certified my citizenship. But regardless, I (sadly) don't have a Constitutional right to a job. I do have the right to vote.
 

We don't, however, generally require people to prove that they are not so subject in order to exercise a civil liberty.

The "exercise" of the RKBA can involve the government making sure you are allowed to have an arm, since the RKBA -- like voting -- doesn't entail EVERYONE to do so.

Part of the "exercise," e.g. is buying a gun. When buying a gun, like voting, it is "directly" relevant to determine identity in certain respects. Ditto hunting on public lands or any number of things. It is fine and something done to check identity in certain cases.

The reason voting is a little bit of an exception is because you don't have a right to vote anywhere you please, as often as you please

you don't have unlimited RKBA rights either.

but instead in a particular place, once per election. This makes identifying you and your place of residence an inherent aspect of exercise of the right.

Identity is relevant in various cases for RKBA purposes. Residency might be in various cases too and/or might be a means to clarify identity, especially if the right is tied to a state privilege of some sort.

Whereas limitations on where you can buy a gun, or how many you can buy, are not inherent to the right, but rather to infringements of it.

State and federal rulings repeatedly have rejected the idea that any limit on where you purchase is an "infringement" of the "right" in question. As with voting, the government can to regulate that sort of thing. Not exactly the same way, but can. The number of guns thing is also debatable at best.

Again, id clearly and probably residency can very well be a basic means of regulating gun rights in this country. Since RKBA in fact is not applied to all, it is "inherent" as applied since the RKBA (more so than free speech) involves a subset of the population. We don't have to determine if such and such a person is speaking often enough. But, only a subset has general RKBA rights.
 

Look, voting is a direct interaction with the government, it's fairly difficult to set up a black market in votes. If the government says you can't vote, it's capable of effectively enforcing that decision if it can identify you. This means there's actually something to be gained by asking for the identification.

Activities which don't inherently get channeled through the government lack this fundamental immunity to the creation of black markets. This means that the annoyances you're imposing on those who are legally entitled to exercise rights other than voting do not efficiently prevent others from exercising them.

This limits the extent to which you can justify imposing them, because the impositions cannot achieve their stated purpose. And they are imposed on many people for each disqualified person who is intended to be, but will not effectively be, barred from the action.

Now, if you're talking about an activity which isn't a civil liberty, you might justify impositions which are fairly ineffectual, because the government could just prohibit the activity entirely if it wanted. That it lets you do it if you jump through some hoops is more than the government has to allow.

Drinking is of this nature, outside of specialized circumstances like communion wine. States can prohibit drinking entirely, just as they can prohibit use of cocaine, or methamphetamines, or tobacco. And so they can extensively condition the purchase and use of alcoholic beverages, even though those conditions are fairly ineffectual.

But we're not talking here about privileges which the government is entitled to withdraw entirely, or conditionally extend. We're talking about civil liberties. So it really does matter that your regulatory scheme is easily circumvented, that there's little benefit to balance the cost.

I think it's fairly clear that this kind of reasoning gets applied to publishing, (No background checks on printer purchases, or paper magazine limits, despite paroled forgers being out there.) but not to gun ownership, because the people applying it simply do not want to treat gun ownership as a real civil liberty. They want it to be a privilege, which they can impose escalating conditions on, eventually culminating in a complete ban.

This is why I oppose mandatory background checks, and have contempt for anybody who proposes them, who then goes on to make a fuss about voter ID and citizenship checks. Because I won't play along with this game of "pretend gun ownership isn't really a civil liberty".
 

"State and federal rulings repeatedly have rejected the idea that any limit on where you purchase is an "infringement" of the "right" in question."

Yes, we are currently in the "massive resistance" phase of the 2nd amendment's restoration. The Supreme court has ended it's policy of malign neglect, but the lower judiciary is still committed to the destruction of the liberty. It's yet to be seen whether the Supreme court will persist in insisting that the 2nd amendment become part of ordinary, enforced constitutional law, and bring the rest of the judiciary to heel, or whether the Heller 5 will become the Heller 4 after Obama's next appointment, and we get to see what our politics are like when a basic civil liberty is snatched back away from a population that cherishes it.

But the cases you rely on are not enforcement of the right, they are the effort to destroy it without admitting what is being done.
 

Brett,

For the third time I'll put this question to you: can aliens and minors buy and carry firearms under the 2nd? If they can't then isn't ID'ing them one way to prevent/deter them from doing so? You keep saying laws mandating IDs for minors when buying alcohol are 'ineffectual,' do you maintain that if these laws were no longer in effect it would not be far easier for minors to buy alcohol (and thus more of it will occur)?

"(No background checks on printer purchases, or paper magazine limits, despite paroled forgers being out there.) but not to gun ownership, because the people applying it simply do not want to treat gun ownership as a real civil liberty"

That's silly, the latter civil liberty involves items which have a far more immediate danger to safety than printer cartridges. That's reason enough to explain the differential debate.
 

I also think the equation of gun control proponents with 'Mass Resistance' is strained at best, in bad form at worst. Even if it is conceded that the right to individual armed self defense is an important one it's going to need to be exercised by the average person far less than the average person would need to, say, go to school, take a bus, drink out of a water fountain, etc.
 

"do you maintain that if these laws were no longer in effect it would not be far easier for minors to buy alcohol (and thus more of it will occur)?"

Yes, I dispute the "far". Alcohol purchasing restrictions are fairly ineffectual, but can be justified anyway on a constitutional basis because drinking alcohol isn't a civil liberty. My argument is that restrictions on civil liberties must be narrowly tailored and effective at achieving their supposed goal in order to be justified.

Since the government can prevent you from voting, restrictions on voting can be effectively enforced, and thus can be justified if the aim they are directed at is justifiable.

Since the government can't really stop you from buying a gun, any more than it can stop you from buying pot, the restrictions it places on people who are constitutionally entitled to own firearms can not be justified by reference to the supposed benefits the restrictions won't really deliver. Both because they're ineffectual, and imposed on huge numbers of people per offender targeted.

This is the sort of reasoning which is routinely applied to civil liberties the legal profession isn't trying to undo.
 

Look, voting is a direct interaction with the government, it's fairly difficult to set up a black market in votes. If the government says you can't vote, it's capable of effectively enforcing that decision if it can identify you. This means there's actually something to be gained by asking for the identification.

You appear to almost, but not quite, hit a major point here -- research has shown that there is not really a voter fraud problem out there, so "effectively enforcing" voting does not require many of the obtrusive mechanisms desired and "history" has shown that they in fact on put in bad faith. Nonetheless, some means are in place to "enforce," including requiring people to swear to God, sign forms & other mechanisms.

Activities which don't inherently get channeled through the government lack this fundamental immunity to the creation of black markets. This means that the annoyances you're imposing on those who are legally entitled to exercise rights other than voting do not efficiently prevent others from exercising them.

This is wrong unless "efficiently" means "not enough for me." Such activities, especially when involving heavily regulated things like certain types of sales, government places, the mails etc., are regulated by the government & in various cases, beneficially so. Thus, the impositions are justifiable & were stated as such in state and federal court rulings. This includes "civil liberties," which are regulated by the government in numerous ways: guns, voting, speech etc. The government is put to a higher test, but they can.

I think it's fairly clear that this kind of reasoning gets applied to publishing, (No background checks on printer purchases, or paper magazine limits, despite paroled forgers being out there.) but not to gun ownership, because the people applying it simply do not want to treat gun ownership as a real civil liberty. They want it to be a privilege, which they can impose escalating conditions on, eventually culminating in a complete ban.

"Publishing" and "gun ownership" are not treated the exact same way. Minors, e.g., have more rights to self-publish than they have to own and sell guns. But, we are really getting more into your hobbyhorses than "look" the actual issue at hand -- identity at the very least is basic to gun regulation. Again, minors have less rights here. Like making sure a person is eighteen to vote, identity matters as well for gun owners. Your statement on the point was called out. Again, duly noted that different fundamental rights is certain ways are treated differently. But, as to determining identity, and it being useful, that applies in some fashion to both guns and voting. In fact, more so sometimes to guns, since voting fraud is basically non-existent and the stray cases mostly meaningless, while even the same few wrongly getting a gun might be much more problematic.

This is why I oppose mandatory background checks, and have contempt for anybody who proposes them, who then goes on to make a fuss about voter ID and citizenship checks. Because I won't play along with this game of "pretend gun ownership isn't really a civil liberty".

Since, contrary to your statement, background checks actually have been shown -- without requiring (as you alleged) putting the person in jail each time -- to keep guns away from people, while as W. noted being a mild annoyance overall, and it does not violate the RKBA, in fact is somewhat "inherent" to it, since the RKBA includes only a subset having a gun etc., such "contempt" is unfounded. Meanwhile, since the voter id laws you are insisting upon here are so unnecessary and discriminatory applied, and you are ignoring the actual requirements still in place, they are different. Finally, the last thing is a canard. Oh, your citation of "history" when it fits your purposes is pretty rich.


 

More succinctly:

Since the government can't really stop you from buying a gun, any more than it can stop you from buying pot

There is a lot of shoplifting going one. Must mean the laws are pointless. Prohibition is bad for many reasons but it does reduce drug sales to some degree. I can blithely buy cigs and am much more able to smoke them. Pot, a tad harder. Thousands in fact get into the system for doing so. Such a big effort is made to legalize the stuff since the laws actually DO something.
 

Regulating where you can purchase a gun and other such things is part of the non-absolute RKBA. This held true in states where the RKBA has long been strenuously honored. It is not some sort of "mass resistance" thing as such.
 

Brett

If there were no carding when buying alcohol and if you could buy pot in CVS it would be considerably easier for both to occur, and basic economic theory tells you that this means the activity in question will increase. You're making a basic error: concluding that making pot illegal and requiring proof of ID to buy alcohol must be 'fairly ineffectual' because people get around this at times. People get around speeding laws all the time but that doesn't mean that speeding laws don't often operate to make people drive slower than they would absent them.

But to be honest we could concede your point and say that background checks for firearms may not stop many unwanted purchases. It would stop some, and the other components of the balancing you mention are a compelling interest (which is quite high since a bad person with a gun can do a lot of evil, much more than a bad person with a printer cartridge or a fraudelent ballot [hence the differential treatment by some]) and the burden imposed (which is quite small).

Brett, I don't doubt that there are many folks out there who just want to undermine the 2nd Amendment, but you shouldn't doubt that the reason why many people treat 2nd Amendment rights 'differently' (in the sense of entertaining restrictions) is because the exercise of that right is so much more potentially, immediately deadly than the exercise of speech or voting rights.
 

"Since, contrary to your statement, background checks actually have been shown -- without requiring (as you alleged) putting the person in jail each time -- to keep guns away from people,"

I call BS. Every time somebody with a criminal record commits a crime using a gun, (And this is fairly frequent.) it is demonstrated that background checks don't keep guns away from people. Unless by "keep away", you mean "modestly inconvenience, but they can still get one if they bother exerting themselves".

Take the clown who shot up that school in Newtown, providing the pretext for our current assault on the 2nd amendment. Lacking a criminal record, and having attained the age of 20, he could have passed a background check, and purchased a firearm in most states. In his home state he could legally have purchased a long arm.

But let us suppose that the background check system had been able to magically read his mind, and rejected him for his evil motives. So what? He didn't have to pass a background check, because he didn't buy the guns he used. His mom, of impeccable record, bought them.

Are you perhaps envisioning a background check system which would have stopped HER from buying guns? Maybe add a law that requires you to undergo a background check before stealing somebody else's guns on the way to a mass murder? Maybe that's what's meant by 'universal'?

Are guns never stolen in your alternate universe? Never smuggled? There are no straw purchases by people without records to be found by background checks?

No, background checks don't keep guns from people. They just make getting them a little harder.
 

Brett's earlier response in this thread on his apparent view that a universal background check would be a 2nd Amendment infringement:

"Not if it were instant and free; The only problem is that it's essentially useless, except as preparation for infringement."

is curious with respect to "instant" and "free." Very little in life is really free as some effort is required for a person to do just about anything, like Brett's "more rigorous" efforts to prove residency to vote in comparison to a mere statement under oath to prove citizenship. But it is the "instant" aspect that is troubling. In a perfect situation, there might be a detailed centralized data base (in a fascist state?) sufficient to determine whether an applicant for a gun purchase lacks, for example, the necessary mental capacity that might be taken into consideration in reviewing such an application. The Internet via blogs and social media provides much information directly from many persons, some of whom use their real names and photos, that just might indicate that based upon statements made by such persons there may be issues of proper mental capacity. While Google and other search engines can aid in locating such information from the Internet, it is not an "instant" process and requires evaluation, including review of an entire thread of comments from others that an applicant may have participated in. So why the need to be "instant"? Granted, a person with a mental condition has a right to self-defense. But this right has to be weighed against broader public rights/interests (as recognized by both Heller and McDonald). And yes, the First Amendment speech/press clauses protect most statements on the Internet. But those statements may be taken into consideration in determining whether an applicant for a gun purchase is a suitable person. Once agains we have a clash of the First and Second Amendments; which is more absolute in such a clash?
 

Not all that curious, it's balancing benefits and costs.

1. The benefit is fairly minor, merely inconveniencing criminals.

2. The class subject to the benefit, criminals who don't mind buying their guns in a manner which leaves them tracible, is small.

3. The class subject to the cost is huge.

4. The activity is a civil liberty.

All this adds up to the cost having to be truly tiny for any balancing of costs and benefits to make sense.

Unless you're an anti-gunner, as the people proposing these laws are, and regard imposing costs on gun owners as a benefit in itself.
 

"I call BS. Every time somebody with a criminal record commits a crime using a gun, (And this is fairly frequent.) it is demonstrated that background checks don't keep guns away from people."

This is an odd reasoning. By the same logic every time someone commits a murder it demonstrates that homicide laws don't prevent anyone from committing murder...

In fact you give away your argument in the next sentence:

"Unless by "keep away", you mean "modestly inconvenience, but they can still get one if they bother exerting themselves"."

No one claims that any legal measure can't be surpassed with enough effort, they hope that it will work, at the least, on the margins. Considering the incredible amount of harm that can be done with a gun in the hands of a bad person if only a handful are prevented from obtaining one by the 'inconvenience' background measures cause that's a pretty compelling interest. We want to put obstacles in the way of bad people from obtaining potentially very dangerous weapons.

"1. The benefit is fairly minor, merely inconveniencing criminals.

2. The class subject to the benefit, criminals who don't mind buying their guns in a manner which leaves them tracible, is small.

3. The class subject to the cost is huge.

4. The activity is a civil liberty."

Again, the problem with 1 is that you can't simply stop with 'the benefit is 'fairly minor' because it merely inconveniences criminals since the harm that is prevented every time that inconvenience may stop a bad person from getting a gun is the most serious harm.

As to 2, there actually a couple million denials of gun purchases due to background checks
http://bjs.gov/content/pub/html/bcft/2008/bcft08st.pdf

As to 3, the class subject to the cost may be huge, but the cost per person is small.




 

Brett's:

"4. The activity is a civil liberty."

so far has been defined by SCOTUS in Heller and McDonald, consisting of a handgun in the home for self-defense, but subject to certain limitations enumerated by Justice Scalia in Heller via dicta and repeated in McDonald. But it must be kept in mind that these decisions were 5-4 and serious questions based upon originalism and history have been raised that the majority in effect wrote out the introductory Militia clause of the 2nd Amendment and inserted "self-defense" despite no textual reference to "self-defense." Of course "self-defense" developed over the years going back to England and became part of the law of the states. There does not seem to be a universal "self-defense" among the states, with changes taking place in the manner of common law and statutory provisions. Does the majority's decision in Heller establish what constitutes "self-defense" for purposes of federal law or is it to be determined at the state level as it has evolved since the enactment of the Bill of Rights and the 14th Amendment? Does originalism or textualism permit for an evolving definition of "self-defense"?

So perhaps the final word has yet heard on the 2nd Amendment from SCOTUS as it mulls Scalia's pre-emptive slippery slope limitations.
 

"Take the clown who shot up that school in Newtown, providing the pretext for our current assault on the 2nd amendment."

"Pretext"? I think 27 murders actually constitutes a reason.
 

Brett's:

" ... the clown who shot up that school in Newtown, ..."

is misfired poetic license. The concern is, how many more clowns are out there with access to the types of weapons used in Newtown? [Note: Clowns do not necessarily paint their faces.]
 

I appreciate Mr. W.'s replies but perhaps we can move on from this latest example of Brett using his personal cause to change the subject and apply rules (like use of history) selectively.
 

While Jack Balkin's 3/13/13 post "Arguments from the Future - A New Modality of Constitutional Argument" focuses primarily on same sex/DOMA appeals before the Court and the possible swing vote of Justice Kennedy, it also could apply to the Shelby County appeal. Note the discussion on Brown v. Bd. of Educ.

In several of my comments on this and a prior post by David Gans, I have suggested the possibility of Justice Thomas as a swing vote in Shelby County, permitting him to look to the future and to consider how "history" will look back at his role on the Court. Thomas may come out of the glooming shadow cast by Justice Scalia as Thomas had personal experiences with racial inequalities in his early years and the benefit of the role of Thurgood Marshall before the Court (and lower courts) especially with Brown v. Bd. of Educ. and Marshall's role on the Court. Surely Thomas is aware that when "history" looks back at his role on the Court, it will make comparisons of Marshall and him.

Jack's post is most interesting and I trust that in due course it will be followed up with a detailed article. There may be a suggestion in Jack's post that he may be reconsidering his role as a New Originalist.
 

Shaq, given his dissent in Northwest Austin Municipal Utility District No. 1 v. Holder I doubt very much that Thomas will provide a swing vote in support of the VRA in Shelby.
 

If we're going to discuss his arguments from "the future", I have to observe that the future appears to be a stinky place where the sun don't shine.
 

Here's Brett's "dystopic" mind at work:

" ... I have to observe that the future appears to be a stinky place where the sun don't shine."

aka "uppa U.S."

Even Mitt R-MONEY at CPAC exuded optimism for America's future. Brett "observes" the future in the manner of Chicken Little. Yes, eventually the sun will die out but even an engineer with limited science knows well that that is a long way off. Or perhaps Brett is concerned that global warming (that the GOP considers a fraud, as demon-strated by George Will) will soon prevent the sun from shining through our atmosphere.
 

It is off topic, admittedly, but if we want to play around with Justice Thomas' positions [SCOTUSBlog's media round-ups recently linked a discussion of his views, for those interested], I would suggest the DOMA case. He can be the real life example of that justice on "West Wing" who opposed it on federalist grounds. See also, the "Volokh Conspiracy" brief on the matter.
 

Nothing dystopic about it, I was just noticing where he pulled that argument out of...
 

Consider Damon W. Root's Reason Magazine (April 2013) article "A History Lesson From Clarence Thomas" available at:

http://reason.com/archives/2013/03/14/a-history-lesson-from-clarence-thomas

Although Root does not reference Shelby County, Thomas may be thinking about African-American history and his eventual place in the Court's history when it comes time to decide this case.
 

The interesting thing in this oral argument is whether Scalia and Roberts keep their heads down because of the blow back from the earlier case.
 

http://www.scotusblog.com/2013/03/argument-recap-does-may-only-mean-shall-only/

Talking Points Memo has more, including Scalia not quite "keeping his head down."
 

Great Post, I love to read articles that are informative and actually have good content. Thank you for sharing your experiences and I look forward to reading more.

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I suppose it would be a trifle inefficient to register people to vote without gathering appropriate evidence of their being qualified, and then to immediately purge them if they don't provide it, but it seems likely to be legal for a state to do this.www.joyrs.com windows 7 professional product key www.rs2fun.com
 

I suppose it would be a trifle inefficient to register people to vote without gathering appropriate evidence of their being qualified, and then to immediately purge them if they don't provide it, but it seems likely to be legal for a state to do this.
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