Posted on 05/21/2002 3:40:55 PM PDT by 45Auto
Analyzing RKBA
The purpose of this document is to dispel myths, quell rumors, answer legitimate questions, and set forth some contextual explanations of various clauses in the Proposed RKBA Initiative.
In the Declaration of Independence, its principal author - Thomas Jefferson - noted that revolutionary acts require an explanation to show "a decent respect to the opinions of mankind." He went on to state that: "prudence indeed will dictate that governments long established should not be changed for light & transient causes."
This Amendment is a revolutionary act given the present status of firearm rights in California. But, like the American Revolution itself - the ideas we seek to infuse into the body politic are not themselves revolutionary. We seek merely to re-establish - or reclaim - rights that have been usurped. In this way we are like the majority of the original Colonists, who would have been satisfied to remain British subjects if they could have enjoyed the rights of Englishmen. It was the abrogation of long established rights that drove the Americans into the contest that changed their government from a hereditary-monarchy to a constitutional-republic. [And shouldn't we pause to give thanks to our political forebearers, for aren't we richer and safer for having a system of government where this kind of revolution can now be achieved by election?]
The core language [also being called the preamble], and sub-part B of this Amendment fulfill these principles. By referring to the "inalienable right to defend life and liberty" as already set forth in Article I, Section 1 of the California Constitution, we pay homage to the past and acknowledge the wisdom of our ancestors for including that language in our State Charter. This shows our "decent respect for the opinions of mankind."
The language of sub-part B strengthens our case by acknowledging that our political opponents are not complete idiots. What has always gotten lost in all the rhetoric on gun control is that even the staunchest supporter of the right to keep and bear arms wants to keep guns out of the hands of: felons, minors, mental incompetents and other-wise violent people. The media conspire with the gun-grabbers by misleading the public into believing that we want no gun control. This is simply not true, and we need to state so from the outset. By including sub-part B we disarm our opponents and state our position once and for all. Namely this - that once we have firmly re-established the individual right of law abiding citizens to provide for their own self-defense, we are happy to work with our government to find ways to reduce the irresponsible and criminal use of firearms.
I am aware that the language on restraining orders is troubling to some people. It should not be. The current state of the law is that domestic violence restraining orders - the type that can effect your gun rights - require that the person subject to the court's order be given notice and an opportunity to be heard before the court can conduct any hearing that can permanently effect your rights. In addition, the restrained party must be present in court at the hearing or he/she must be personally served with a written copy of the judge's order before it becomes legally binding. The standard of proof is usually "clear and convincing" evidence. The decision is usually made by a superior court judge siting as the finder of fact. There is no right to a jury.
Let us get one thing perfectly clear from the beginning. Any spouse [or domestic partner] that initiates force or violence against a "loved one" deserves to lose their right to own firearms. Physical violence against fellow human beings has no place in a civilized culture. The right to keep and bear arms is not a floating abstraction. It is part of a broader philosophy of liberty that carries with it the concurrent duty to respect the sovereignty of other individuals. A corollary to the phrase: "An armed society is a polite society"; can be stated as: "Those who violate the rules of a polite society forfeit their right to be part of the armed society."
That being said, part of what this Amendment will accomplish is a raising of awareness of the firearms issues underlying a goodly portion of domestic violence. Everyone signing this petition will be reminded: "If you love your guns, keep your hands off your spouse in a domestic dispute."
Additionally, if this initiative passes and is interpreted as it should be, then the legal burden on the party seeking domestic violence restraining orders should be slightly elevated. Under current law, one of the side effects of a felony conviction is to strip the defendant of the right to vote and to sit on a jury [other examples of fundamental rights]. To do that, a court of law must find him/her guilty "beyond a reasonable doubt." And the defendant is entitled to a jury trial. Since issuance of a domestic violence restraining order also strips the restrained party of the fundamental right to keep and bear arms, perhaps we will see a slight raising of the legal burden for the parties seeking restraining orders. Any reform in this area of law must become an exercise in reconciling the legitimate goals of - preserving the peace; and preserving the rights of law-biding citizens to provide for their own self-defense.
The language in sub-part A is derived from the oft quoted statement: " If the Second Amendment were interpreted like the First, every citizen would be required to own, study and know how to use firearms." What is really at stake in sub-part A is the degree and extent of the government's justification for interfering in a law-abiding citizens right to keep and bear arms. Remember that even your right to speak and publish is not absolute under the First Amendment. You cannot speak or publish the military secrets of your country during time of war [or peace for that matter.] You cannot yell "fire" in a crowded theater, cause a stampede and/or riot, and then hide behind the First Amendment to avoid responsibility for your grossly negligent conduct. Neither will the rights enshrined in this initiative/amendment be absolute.
The difference that this Amendment will make, is that bringing suit to challenge a state gun control law, will require the government to justify the statute when it effects law-abiding citizens. Furthermore the government must meet this burden with facts and logic that show a compelling government interest. The government will also be required to demonstrate that there are no less restrictive means for achieving that government interest.
Under the current weak interpretation of the right to keep and bear arms, the government need only show some rational connection of the law to a permissible government goal in order for a gun law to withstand a constitutional challenge. The rational connection does not even need to be ultimately true, it is enough if the legislature could think it is true.
If this Amendment is interpreted correctly, a gun statute that effects law-abiding citizens, when challenged in a lawsuit, will require the government to present facts that show a clear a present danger to the community in order for that gun regulation to pass constitutional muster. The gun-grabbers will no longer be able to get away with false and mis-leading statistics, nor will they be able to appeal to fear and emotion to carry out their agenda. The legislative demagogues will be required to put up or shut up.
No doubt some gun laws will meet the burden of a compelling government interest and they will remain on the books. For example laws that: 1.) Restrict firearms access for felons and persons subject to restraining orders; 2.) Penalties for criminal and negligent use of firearms; 3.) Licensing schemes for machine guns, and 4.) Licensing schemes for firearms' dealers.
Remember that when this initiative passes, we will still be subject to all federal firearm laws; especially the ones that do not depend on state laws for their interpretation.
Hope this whets your appetite for now. I will be submitting further essays on the development and interpretation of this Amendment in the weeks and months to come. Thank you.
Yours in Liberty, Donald E. J. Kilmer, Jr. Attorney at Law defend life and liberty as set forth in Article I, Section 1 of the California Constitution includes the fundamental right of each person to keep and bear arms for the defense of self, family and home. This right shall not be infringed.
1. All State government action regulating the right of law-abiding persons to acquire and possess arms for the defense of self, family and home, shall be subject to strict scrutiny, in the same respect as the freedoms of speech and of the press. All county, city and local government action on this subject is preempted by state law and this Amendment.
2. This Amendment does not limit the State from regulating the acquisition and possession of arms by: felons, minors, the mentally incompetent, and any person subject to restraining orders based upon their own violent conduct.
The inalienable right to defend life and liberty as set forth in Article I, Section 1 of the California Constitution includes the fundamental right of each person to keep and bear arms for the defense of self, family and home. This right shall not be infringed.
1. All State government action regulating the right of law-abiding persons to acquire and possess arms for the defense of self, family and home, shall be subject to strict scrutiny, in the same respect as the freedoms of speech and of the press. All county, city and local government action on this subject is preempted by state law and this Amendment.
2. This Amendment does not limit the State from regulating the acquisition and possession of arms by: felons, minors, the mentally incompetent, and any person subject to restraining orders based upon their own violent conduct.
When are the petitions to be available? Or is it already going to be on the ballot?
Leave Kalifornia - and emigrate to Red Nation. Why stay in a state where not only your gun rights are threatened - but also a state doomed to becoming ever-more a Brazilified society of a few grandees living in Spielbergian opulence, a small middle class servicing the grandees, and hordes of Third World poor (most illegal aliens or their first-generation progeny)?
Already, there is a net exodus of 100,000+ middle-class European-Americans and blacks fleeing Kalifornia - a trend so pronounced that Univ. of Michigan demographer William Frey has made studying it his specialty.
With the demographics of Kalifornia, taxes on that shrinking share of the public that is middle class must soar to fund Kalifornia's fabled welfare state. That in turn will increase the exodus of the middle class.
Don't be the last guy on your street to list your home for sale.
Scandals of antigun politicians - from Kalifornia to Manhattan!
I certainly don't see any evidence of a net flight from the state. Right now the housing market is as hot as it's ever been, as demand far outstrips supply.
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