Is the First Amendment a License to Steal?

Jacob Sullum | September 28, 2006

This week the U.S. Supreme Court agreed to hear a case that pits a First Amendment claim by unions against a First Amendment claim by employees. In Washington state, government employees are required to pay an "agency shop fee," whether or not they are union members, ostensibly to cover the costs of collective bargaining. The Supreme Court has held that such money cannot be used to support political causes if an employee objects, since that would amount to compelled speech. In 1992 Washington voters overwhelmingly approved a "paycheck protection" law that goes further, saying unions may not spend nonmembers' money on political activities without their affirmative permission. In March, responding to a challenge by the Washington Education Association, the state Supreme Court concluded that the opt-in rule violates the First Amendment rights of unions. "The initiative that was passed in Washington trampled on the rights of people to have a collective voice in politics," says WEA President Charles Hasse. "It made the rules so burdensome that it made it impossible to be active politically." Does freedom of speech includes the freedom to use other people's resources, without their permission, to get out your message? How would Hasse feel if I held a rally in his yard or commandeered his computer to write Hit & Run posts?

Comments

|9.28.06 @ 2:13PM|#

Unions are pretty strong in this state, especially with the state-run "education" mononpoly. We still don't have any type of voucher setup.

My daughter enters Kindergarten next year. We'll see how it goes, but may end up home-schooling her.

|9.28.06 @ 2:15PM|#

Jacob:

"...if I ... commandeered his computer to write Hit & Run posts?"

Maybe the server squirrels would work faster if you did.

fyodor|9.28.06 @ 2:31PM|#

Well, commandeering someone else's computer is different from how unions use union fees since no one is forced to work at a union shop against his will. The only justification I can see for the government coercively telling unions how to use their funds is that unions largely owe their existence to coercive laws enacted by that same government. Which makes this issue one of those classic conundrums for libertarians pitting "pay the piper" arguments versus the question of whether two coercive wrongs make a right, akin to the issue of whether the government can tell pharmacists whom to sell contraception to on the grounds that pharmacists enjoy a government created monopoly.

|9.28.06 @ 2:41PM|#

I think a better question to ask is how does Charles Hasse feel knowning that a portion of his tax dollars is being spent on the attorney fees & resources to defend the laws he is opposed to.

If he was given a choice would he support his tax dollars being spent on attorney fees & resources to defend these laws or would he say NO, don't spend my tax dollars that way?

|9.28.06 @ 2:42PM|#

"How would Hasse feel if I held a rally in his yard or commandeered his computer to write Hit & Run posts?" I don't know. Did Mr. Hassel join an organization you lead that traditionally uses members' computers to fund advocacy?

Wake me up when you propose to force corporations to receive "affirmative approval" from individual shareholders before donating to political causes.

|9.28.06 @ 2:53PM|#

Wake me up when you propose to force corporations to receive "affirmative approval" from individual shareholders before donating to political causes.

OK by me. Jacob, what do you think? I do see one point Joe may have overlooked -- I'm quite free to choose which corporations I buy shares in, but have rather less choice among places in which I work. Particularly if I were in a trade dominated by unions, such as teaching.

Gimme Back My Dog|9.28.06 @ 3:00PM|#

If, after all this time, you still can't tell the difference between compelled and voluntary contributions, I think it is better if we just let you sleep.

|9.28.06 @ 3:03PM|#

The non-union employees who benefit from collective bargaining services aren't members, they're customers of the collective bargaining services. Is it "theft" or "compelled speech" for Walmart to use some of the money it takes from its customers to pay for lobbying and such?

|9.28.06 @ 3:20PM|#

Given the fact that unions such as the UAW have played a major role in nearly destroying the U.S. auto industry, I wonder how much of a "benefit" union membership actually is in the long run?

In modern America unions and religion play the same role: a comforting gang for the weak-minded.

|9.28.06 @ 3:21PM|#

Gimme Back My Dog,

So now you're saying that the conditions of employment at a workplace are "coerced?"

Funny, that's not what you say on threads about workplace discrimination laws.

|9.28.06 @ 3:29PM|#

"Given the fact that unions such as the UAW have played a major role in nearly destroying the U.S. auto industry..."

What? You mean it wasn't the mandatory seatbelt laws?

Yeah, it's the unions.

If only our auto companies were hard on their employees as the Japanese, Germans, and Italians, GM would have made huge profits off the innovative, stylish, and well built Buick brand.

fyodor|9.28.06 @ 3:31PM|#

Gimme Back My Dog,

Nobody goes to jail for not making union dues, so I would hardly call them "compelled".

|9.28.06 @ 3:43PM|#

"Nobody goes to jail for not making union dues, so I would hardly call them "compelled"."

Perhaps I mis-understand what is meant by:
"In Washington state, government employees are required to pay an "agency shop fee," whether or not they are union members"

Is that not compelled?
-K

|9.28.06 @ 3:44PM|#

The requirement that employers must treat with unions is sure as hell coerced. There is this little thing called "labor law" that restricted the constitutional freedoms to enter into contracts, and the rights of employers to control certain activities on their private property.

I can't see how requiring public employees to pay tribute to an organization that propounds ideas that they disagree with, as a condition of employment, can be constitutional. We recognize that making them join the union would violate their freedom of association rights under the First Amendment. What this law requires, and the Beck decision before it, is that the agency fee meant to pay for the costs of acting as an employee's agent in negotiations with the employer, actually get spent on such tasks, and not be siphoned off for other purposes.

Having a near-monopoly provider of schooling on one side of the table and a near-monopoly seller of teaching services on the other is the real problem.

Kevin

fyodor|9.28.06 @ 3:45PM|#

Karl,

Are they required to be state employees?

|9.28.06 @ 3:54PM|#

Fyodor - No they are not. And if they were interacting with a private employer, then the state should have no say in the requirements for employment (either coercing union membership, or forbidding it). But the state itself should not be able to require participation in a union as a pre-condition of employment. I hold the state, as
the institution with monopoly on the initiation of force, to a different standard than private interactions.
-K

|9.28.06 @ 3:59PM|#

"What this law requires, and the Beck decision before it, is that the agency fee meant to pay for the costs of acting as an employee's agent in negotiations with the employer, actually get spent on such tasks, and not be siphoned off for other purposes."

Actually, no. What this law requires is that the decision of whether or not to pay for political speech by your union - which we both agree is a choice protected by the First Amendment - is to expressed via an "affirmative checkoff" rather than a "negative checkoff."

In other words, the law works from the assumption that those who join unions don't want the union to engage in the types of advocacy that has been the defining characteristic of unions for a century, but allows that assumption to be rebutted.

The recent court decision states that the law should assume that union members do want their union to act like a union, but should allow that assumption to be rebutted.

It's as if the law required every the counter staff at a burger joint to assume that their customers don't want a bun, and forces the counter staff to ask every customer "Do you want that on a bun?" And then charge them a quarter. The court decision says that the burger joint should assume that somebody ordering a hamburger wants a bun, but that they must be allowed to decline a bun, and have a quarter taken off their bill.

fyodor|9.28.06 @ 4:00PM|#

I should make clear, as my first post should indicate, that I hardly see a slam-dunk for the union's position. Karl and kevrob make additional good points about the effect of the employment involved being public.

|9.28.06 @ 4:01PM|#

Let's this thought experiment:

What if the South Carolina Education Association collected an agency fee from non-members, and donated 10% of that fund to a particular church. In order to keep his portion from subsidizing religion , an atheist who was not a member of the SCEA would have to quit working as a publik skool teachur. Anybody think that would be a First Amendment violation?

Kevin

fyodor|9.28.06 @ 4:09PM|#

joe,

Seems like a negative checkoff option would be reasonable for union members, while an affirmative checkoff arrangement should be required of nonunion members.

Whatcha think?

|9.28.06 @ 4:14PM|#

joe:

You are just plain wrong on the facts. The original H&R post refers to the fees non-members pay. If the law had gone so far as to require a checkoff of any kind for actual members of the union, assuming nobody was forced to join, I would be against it.

"Paycheck protection" arose in reaction to the refusal by union-freindly administrations to enforce the Beck decision, which remains the law of the land. Citizens who have tried to exercise their Beck rights have had to jump through insane procedural hoops to get their fees refunded. Contempt of court citations would not be out of line in some cases.

Kevin

Thomas Paine's Goiter|9.28.06 @ 4:19PM|#

Wake me up when you propose to force corporations to receive "affirmative approval" from individual shareholders before donating to political causes.

DURRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR You're not compelled to own shares in that corporation HYUK HYUK HYUK DURRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRRR

You really think out your responses, huh?

|9.28.06 @ 4:25PM|#

TPG,

The disclosure laws, which are supposed to "protect" investors (what they do is what regulations generally do - treat them like children), are problematic because they essentially push people to invest in the Fortune 500 instead of in potential regional markets that might bring higher, more stable returns.

|9.28.06 @ 4:37PM|#

kevrob,

I stand corrected; I must have misread the post.

I withdraw my objection. Opting out of the union, choosing to pay the lower fee so that your money will only be used for collective bargaining, IS a negative checkoff for funding political activity.

Goiter, you're also not compelled to take a job in a union shop, duh. Engage brain, THEN hit post, mmm-kay?

|9.28.06 @ 4:39PM|#

Unions in a free market have as much right to exist as corporations or any other kind of association that individuals join to improve their lot.

Political activities contribute to the value of union representation, and union representation contributes to the worker's well-being in the union shop.

Suppose you want a car but you don't believe in the wheel. Is it the fault of automakers that you can't buy a car without wheels? Has your fundamental right been violated? Would the remedy be to compel Chrysler to make everyone pay extra to have wheels put on the car? Or to take the wheels off yourself?

A non-union employee in a union shop who objects to the union's political contributions can take some of the extra money he's making thanks to the union and donate it to any cause he wants.

|9.28.06 @ 4:42PM|#

Way to go, joe. Now, are you willing to get behind third-party audits of union agency fee collection, to make sure that there isn't any padding of those fees for non-bargaining purposes?

Kevin

|9.28.06 @ 4:53PM|#

Mutt,

Obviously, I'm sympathetic to your argument. I think you are correct about the political activism of the union benefitting the non-member just as much as the collective bargaining.

But speech, especially political speech, is not a commodity. It is provided with special protection under the Constitution. For this reason, labor law needs to show greater deference to an individual worker's right to engage or not to engage in certain political activity than Dodge needs to show to an individual customer's "right" to have the tires he wants.

There is no amendment that protects people's commercial transactions per se (note the per se; various amendments protect various commercial transactions, like employment conditions, as they effect defined rights and freedoms), so I have no problem with labor laws that respect collective bargaining agreements. However, engaging in political speech is not just a commercial transaction, as your "donation -> activism -> benefits explanation suggests. It is that, but it is also something more.

|9.28.06 @ 4:58PM|#

kevrob,

Only if they do not impose an undue administrative burden on the union and its political activism. The union's members still retain their right to engage in free speech and political activism, and like reproductive freedom, laws that overly burden the exercise of these rights are no more Constitutional than laws that ban them outright.

If this is the unions' argument - that the administrative requirements of the law represent an undue burden on the union's ability to engage in political activism funded by its members - then they could well have a case.

|9.28.06 @ 5:19PM|#

Fair enough, joe. I do cringe at what the courts would do with a term like undue administrative burden, the effects of which which can be infinitely expanded or contracted, as their robed majesties please. As things stand now, unions aren't even required to make regular reports to those who pay fees as to how much goes to bargaining and how much to political advocacy.

Kevin

|9.28.06 @ 5:28PM|#

If I buy something from a corporation, can't they use my money I gave them to contribute to a political cause? The union provides something for the worker (representation and other benefits). But you say, the union "forces" them to give in a collective bargaining situation? Not at all, they have an exclusive contract and they decide, quite naturally, that only their members get to work where they have worked for the bargain. Corporations pull crap like this and noone moans, but let some workers get together and play by the same rules and waaah goes the crying, and from "libertarians" no less. To be a lawyer you must be liscensed by the ABA, to be a teacher in Washington you must be in a union cuz they worked out that contract with Washington. If you want to be a teacher and not be in the union then convince a majority of your fellow teachers to vote against the union. Its called contracts and its the foundation of any libertarian society that is not just a big business funded apology.

Paul|9.28.06 @ 5:31PM|#

Given the fact that unions such as the UAW have played a major role in nearly destroying the U.S. auto industry, I wonder how much of a "benefit" union membership actually is in the long run?

Anti-gompers:

I was quietly waiting for someone to say it. Which brings us to the private sector/public sector union divide. Private sector unions I have little trouble with. If the product you produce gets stupid, overpriced or offends me, I don't buy it, and the Union ends up in the soup line. But public sector unions have no such possibility of a direct market backlash. This, of course is exactly why private sector unions have shrunk while public sector unions have increased in size and power volumetrically.

|9.28.06 @ 5:38PM|#

Kevin,

"I do cringe at what the courts would do with a term like undue administrative burden..."

I understand the concern, but the other option would seem to be that there not be any legal or Constitutional stricture against the legislature or executive putting an undue administrative burden on people, unions, corporations, etc.

Have you ever seen the movie Brazil?

|9.28.06 @ 5:50PM|#

I'd frame the issue in terms of the chain of ownership of the money.

If the money that will be used for political activity becomes property of the employee, then is collected as a fee, then some form of affirmative permission before handing it over to the union should be required, either in the employment contract or by an amendment to the contract. So, if the money is counted as income for tax purposes before it is deducted and some form of affirmative permission has not been obtained, it's compelled speech. A refusal to object is not a valid basis for a contract.

If the money is deducted pre-tax, then its an operating expense, and the consent of the employer is all that is required, subject to the normal restrictions on how the employer may spend money on political activity. In the case of a government agency, it should still not be permitted, on the principle that government agencies shouldn't be engaged in political activity.

|9.28.06 @ 6:06PM|#

Kevin,

"As things stand now, unions aren't even required to make regular reports to those who pay fees as to how much goes to bargaining and how much to political advocacy."

You know, if you look at it from the point of view of a union local, that would be a lot harder than you make it sound. First of all, a few dozen teachers in a union local aren't going to have any paid staff to attend to administrative matters, which limits how much they can be expected to do. When you're talking about a business, a church or other incorporated non-profit group, or a public agency, there are going to be more resources for this kind of thing, so regulations become more feasible - and more important, as their reach expands as well. Seriously, imagine that you and four of your coworkers were charged with handling tasks during your free time, and 20-60 of your fellow employees met every few months. How much could you really get done? If your answer doesn't include the accurate management and reporting of a multio-account financial system, the a law that requires such a process is effectively forbidding the union members from engaging in political activity together.

How's this: the union local has to keep track of its total revenue (T), and its revenue from agency shop fees (A). It can't spend more than T-A on political activity.

|9.28.06 @ 6:33PM|#

arthur,

WalMart doesn't "take money from their customers", they exchange goods for this money. Therefor,it's neither "theft" nor "compelled speech'. what they do with thIS money is none of the customers concern, just as what the customer does with the purchased goods is none of WalMarts concern.

|9.28.06 @ 6:34PM|#

Let's try this again...
Once upon a time the workers (in this case teachers) had to decide if they would bargain collectivelly with their employer (in this case the state). In a free and fair vote, a majority chose to do so. The state, being like any sensible employer, signed a CONTRACT with the union. As part of that CONTRACT only UNION MEMBERS get to work with the employer. Anyone who seeks employment must join become a UNION MEMBER because that is who the CONTRACT is with. But now someone joins the union, in compliance with the CONTRACT and is mad that the fee they must pay to join is used without their permission. They are free to leave and not be a UNION MEMBER, there are plenty of other jobs. They are free to get the rest of their employees to vote to chuck the union. But guess what? They are not free to crap on a CONTRACT made by two free parties (the state and a majority of the employees acting as a union). That this makes "libertarians" mad shows that libertarianism is not a consistent philosophy but a corporate shill.

|9.28.06 @ 6:52PM|#

The union's members still retain their right to engage in free speech and political activism, and like reproductive freedom, laws that overly burden the exercise of these rights are no more Constitutional than laws that ban them outright.

Now apply this reasoning to gun control laws. I like where that logic takes us.

|9.28.06 @ 7:01PM|#

Ken,

This is not about the union members. This is about non-union members working at the establishment. The union agrees to allow people to work there and not join the union. They do this by not striking. The non-union employees are covered by the collective bargaining terms. The government requires these non-union employees to pay the union for the bargaining services via the "Agency Shop Fee." For some reason or another the non-union members do not want to be in union. Perhaps it is that they do not agree with unions in general. So, they asked that their fees go only to pay for the collective bargaining process, no political activity. The courts ruled that the unions could not use the non-union employees fees for political campaigns as it would be a violation of their First Amendment rights. So, now what is your problem with it? If the unions have a problem, they can use their rights and strike until the employer stops hiring non-union members.

Nick

|9.28.06 @ 7:20PM|#

Nick
Good points. If you own stock in a company, can they use the profits of the company to support a political campaign? How is that different?

|9.28.06 @ 7:31PM|#

Ken,

I choose to give my money to the company. If I have issues with how the company uses my money and the profits, I can take my money and go.

The non-union members can also find another job. However, being forced to pay the union a fee and be bound by the collective bargaining agreement infringes upon the person't rights to enter a contract. They shouldn't have to pay the fee to begin with. The union reserves the right to strike if it believes that the company is in breach of the contract. By allowing non-union members to work there without striking, they give up any power they have over the non-union employees. It is only by government intervention that the non-union members have to fees to begin with. For the government to say that people have to give money to an organization and have no right say what it can used for is wrong.

Nick

|9.28.06 @ 8:05PM|#

I'm employed by the state, but I'm not unionized. The union that wants to unionize my job has now decided that it wants the state to charge me union dues even if my job remains outside the union. They say it's because I'm getting all the benefits they bargain for. The only problem is that pay and benefits for unionized employees have lagged behind the non-union employees ever since the union was created (plus they have to pay dues.)

In summary, most anything nowadays that involves unions is all about making the union and its leaders -- not its members -- richer.

|9.28.06 @ 11:03PM|#

Nick,

"However, being forced to pay the union a fee and be bound by the collective bargaining agreement infringes upon the person't rights to enter a contract."

The union and the employer have a contract. It is quite common for contracts to put restrictions on who one or more of the parties can enter into another contract with. Non-compete clauses, for example. It's really no different that the employers' part of the union contract requires that they do not enter into labor contrracts with people who don't join the union, pay dues, etc.

Unions don't restrict the rights of people who would enter into a contract with the employer outside the union, because those people have no right to enter into such a contract without the employer's consent. Such people are merely wishing to enter into a contract with an unwilling party, on terms that the party does not wish to accept.

|9.28.06 @ 11:13PM|#

joe,

I'd say that the presumption of freedom is a far better standard than the "undue burden" standard. The former requires a far higher showing by the government than the latter. Indeed, in the post-Casey world many abortion rights activists have tended to argue that that 1992 decision severely eroded the right of privacy in that area.

|9.28.06 @ 11:13PM|#

I've cataloged some of WA state legislature's left-wing nannystate legislation (and seattle city and king county as well).

Well, our supreme court is no better. Their favorite task is overturning citizen initiatives. To actually claim that the free speech of unions is infringed by requiring they ask people before using their money for political causes? Only a dipshit judge could have made that decision.

Welcome to WA. The state of Critical Areas Ordinance, the State where casinos are everywhere but online poker is a felony, etc.

|9.28.06 @ 11:16PM|#

Oh also... according to the WA state constitution, the citizen initiatives are the supreme law of the state and take precedence over laws passed by the legislature. Both the judges and the legislators HATE that idea

|9.28.06 @ 11:21PM|#

Anyway, unions are always prone to the insider/outsider problem; indeed, to properly function it seems that unions must exclude some class of persons so as to raise the income of the "insiders."

|9.29.06 @ 1:38AM|#

I would have no problem with a union bidding against other groups of prospective employees to fill designated jobs, or even all jobs at a publik skool or other government agency. A non-union-member who got shut out because the Teamsters or AFSCME underbid him at the stated levels of training and experience necessary has nothing to complain about it. But that's not how these contracts come into being. Government jobs typically are filled by means of Civil Service rules, which demand particular levels of education and/or certification or licensure in a field, and/or a competitive examination. A candidate list is created, tweaked by such things as veterans credits, then, as openings occur, supervisors interview the candidates at the top of the list, and hire the most impressive. You don't have to be a member of a union to get the job, you only have to join (or choose agency status) after you are hired, and then only in those states that don't have "right-to-work" laws, and where the union has negotiated an agency shop. There are closed shops, and hiring through the union, notably in the construction trades, but not in public employment. Employers and unions are everywhere constrained by labor law: Wagner Act, Taft-Harley, laws banning public sector strikes [e.g.: New York's Taylor Law], etc. It is alright to do thought experiments about unions signing contracts with employers in a "state of nature," but then you have to let back into the argument such things as yellow dog contracts, blacklegging and bans on onsite organizing.

I'm reminded of how Lane Kirkland, disgusted with the lessened clout the unions had on the NLRB during the Reagan Administration, allowed as how it might go better for his side if the labor laws were allowed to expire, and the unions could go back to the "law of the jungle."

Kevin

|9.29.06 @ 9:42AM|#

db,

I have actually been thinking along the lines of the undue burden test, the 2nd Amendement, and gun control.

Banning all guns, obviously, goes well beyond an undue burden.

Banning handguns, allowing only rifles and firearms, unduly burderns small people, frail people, and handicapped people.

But the "Assault Weapons" ban - does regulating the design of rifles as that bill does, so that you end up buying rifle A instead of rifle B - really burden your exercise of the right to bear arms? Set aside the flaws that bill has with subjectivity - is your right to bear arms burdended because you have to have a weapon with a wooden stock instead of metal one?

Or, volume limits on firearm purchases. If you are able to walk into a store a buy two rifles and two 9mm pistols, but not a third 9mm pistol until 30 days have expired, does that place a meaningful burden on your ability to protect your home, go hunting, or even just be armed in case the UN Black Helicopter Police land on your patio?

Larry A|9.29.06 @ 10:50AM|#

"Undue administrative burden."

Take a look at a teacher pay scale. Paycheck calculations require tracking job title, longivity, education level, merit raises, subjects taught, level of subjects taught, number of classes taught, months taught per year, extra duties, W-2 information, health benefits selected, retirement benefits selected, union membership level, and so forth.

Administering and tracking one additional check-yes/check-no form shouldn't be a problem.

Besides, in this particular case the only thing the union had to do to avoid the new opt-in law was fairly administer the old opt-out law.

|9.29.06 @ 11:15AM|#

joe,

The major problem with the assault weapon ban is that it is useless. Assault weapons do look "mean" though.

Anyway, again the "undue burden" standard is a far more limiting, far more burdensome standard on the individual than the "presumption of liberty."

Banning handguns, allowing only rifles and firearms...

BTW, a handgun is a firearm. Do you own a gun joe?

|9.29.06 @ 8:53PM|#

Philly,

That's why I wrote "Set aside the flaws that bill has with subjectivity..." I was just putting it out there to discuss the principles behind it.

"Banning handguns, allowing only rifles and firearms..." Typo, I meant long guns.

Larry A|9.30.06 @ 6:18PM|#

Joe: Banning all guns, obviously, goes well beyond an undue burden. Banning handguns, allowing only rifles and firearms, unduly burderns small people, frail people, and handicapped people.

And millions of concealed handgun licensees, anyone significantly older than the average mugger/rapist/murderer, women, people without the typical street thugs experience in inflicting violence, etc. I.e. most law-abiding people.

You seem to say the Second Amendment isn't violated if the government allows us to have low-capacity long guns with wooden stocks.

How would you feel about the First Amendment if the server squirrel blocked posts based on content; excluding liberals, athiests, Democrats, etc. After all, you could still post "approved" opinions.

|9.30.06 @ 10:34PM|#

Larry A,

If I was allowed to only write approving things about George Bush, but not diapproving things, my ability to speak and communiticate on politics would be substantially burdened. Whole realms of what someone who engages in free speech is allowed to do would be shut off from me.

I don't think this is the case in the rifle stock example. A shotgun with a wooden stock allows you to exercise your 2nd amendment rights in exactly the same manner a s shotgun with a metal stock; one is an indistinguishable substitute for the other; if you can't engage in one, you can achieve exactly the same outcome by availing yourself of the other.

On the other hand, writing supportive things about the president of keeping silent is not an indistinguishable substitute for criticising him. If I'm not allowed to write disapproving things about the president, I cannot do the things that the 1st amendment is meant to protect.

|10.1.06 @ 2:12AM|#

This is the sort of conflict that inevitably arises when unions and the state fight like two gangs in a turf war over land neither legitimately own.

A pox on both houses. The victim here (besides the children needing education) is the new teacher who hates unions, but needs experience before moving to a private school. This is why I am not a teacher.

|10.1.06 @ 12:52PM|#

"You seem to say the Second Amendment isn't violated if the government allows us to have low-capacity long guns with wooden stocks."

His position is more like the classic limits-of-free-speech position.

Few rights are absolute, so why would you expect the right to bear arms to be absolute? Restrictions can exist without negating the basic right. You have the right to bear arms, but don't have the right to WMD. If we can agree on that point,then the policy argument is about where to draw the line, not whether restrictions are appropriate. Those who would argue that you have the right to an ICBM in your back-yard, should stay out of public policy.

Larry A|10.1.06 @ 4:16PM|#

I don't think this is the case in the rifle stock example. A shotgun with a wooden stock allows you to exercise your 2nd amendment rights in exactly the same manner a s shotgun with a metal stock; one is an indistinguishable substitute for the other; if you can't engage in one, you can achieve exactly the same outcome by availing yourself of the other.

Not if the metal stock folds and allows me to more conveniently carry the shotgun in my car. Not if the metal-stock shotgun holds eight shells rather than two. And actually neither shotgun allows me to routinely carry, as a handgun with my concealed handgun license does.

The two cases are exactly parallel, as you would be prevented from disagreeing with the government with the pen, as I would be prevented from disagreeing with the government with the sword.

MainstreamMan: You have the right to bear arms, but don't have the right to WMD. If we can agree on that point,then the policy argument is about where to draw the line, not whether restrictions are appropriate.

Okay. Here's the line. I have the right to keep and bear anything law enforcement officers do. They work for me, right? Anything they need to protect my home, I might need as well.

|10.1.06 @ 5:57PM|#

Larry,

That sounds like a pretty good place to start.

|10.1.06 @ 6:00PM|#

Larry,

Just because I have had some rather irrational discussions on this board on the topic (and think I wouldn't from you), would you mind telling me why you went to the trouble to obtain an concealed weapons license?

I advocate open-carry over concealed carry as the better public policy.

|10.1.06 @ 6:43PM|#

Worth checking into...

I just saw this at 3quarksdaily.

With little public attention or even notice, the House of Representatives has passed a bill that undermines enforcement of the First Amendment's separation of church and state. The Public Expression of Religion Act - H.R. 2679 - provides that attorneys who successfully challenge government actions as violating the Establishment Clause of the First Amendment shall not be entitled to recover attorneys fees. The bill has only one purpose: to prevent suits challenging unconstitutional government actions advancing religion.

A federal statute, 42 United States Code section 1988, provides that attorneys are entitled to recover compensation for their fees if they successfully represent a plaintiff asserting a violation of his or her constitutional or civil rights. For example, a lawyer who successfully sues on behalf of a victim of racial discrimination or police abuse is entitled to recover attorney's fees from the defendant who acted wrongfully. Any plaintiff who successfully sues to remedy a violation of the Constitution or a federal civil rights statute is entitled to have his or her attorney's fees paid...

[C]onservatives in the House of Representatives have now passed an insidious bill to try and limit enforcement of the Establishment Clause of the First Amendment, by denying attorneys fees to lawyers who successfully challenge government actions as violating this key constitutional provision. For instance, a lawyer who successfully challenged unconstitutional prayers in schools or unconstitutional symbols on religious property or impermissible aid to religious groups would -- under the bill -- not be entitled to recover attorneys' fees. The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.

Larry A|10.1.06 @ 9:30PM|#

would you mind telling me why you went to the trouble to obtain an concealed weapons license?

1. I'm a firearms instructor (NRA, Hunter Education, CHL) so I practice what I teach.
2. Texas has no open-carry provision, so it's CHL or no carrying. I tend to carry everywhere it's legal, or pretty much all the time.
3. Shall-issue CHL legislation was possible to pass in the 38 states that have it. Open carry or no-license wasn't.
4. The CHL process provides a discrete, studiable population. The statistics generated around them showed that licensees are extremely law-abiding, not the yahoos the anti-gun folks call gunowners.

I advocate open-carry over concealed carry as the better public policy.

If everyone open carried I wouldn't have a problem with that. I lived in that situation when I commanded infantry units in Vietnam.

However, in the real civilian world most people don't carry. I don't want to be identified as the only person in the crowd armed, therefore the first target for a criminal to eliminate.

When travelling in situations where I had to carry openly, Oregon for instance, I've noticed that unarmed bully types tend to be more aggressive with openly armed citizens. While carrying concealed I've encountered two bullies (in ten years) and both times I was able to use conflict management skills to extract myself from the situation without using force. I'm not sure I would have been able to if I was obviously armed.

Philosophically I favor no-license carry open or concealed. Practically I think most people need training in state law respecting firearms and self-defense. I believe concealed carry is better in populated areas.

Larry A|10.1.06 @ 9:44PM|#

The bill, if enacted, would treat suits to enforce the Establishment Clause different from litigation to enforce all of the other provisions of the Constitution and federal civil rights statutes.

In our Republican County Convention the proposed plank supporting this bill called on Congress to specifically ban only the ACLU, by name, from collecting such fees. I helped get it voted down.

I wish they'd keep their "buts" out of my Bill of Rights.

Give me a break. I was at the convention because in Kerr County Texas the Republican Party is The Only Game In Town.

|10.2.06 @ 11:04AM|#

Larry,
Thanks.

So the question I have:
I see the advantage to you in concealed-carry.

What advantage does it provide to the community at large? It seems that the concealed weapon has practical advantages to the individual carrying it, but that open-carry has more advantages for the rest of the community (e.g., it is easier for police, I can judge more accurately my level of safety if I see you in a conflict with someone that looks like it might turn violent, etc...)

Given public policy as the center of discussion, what are the disadvantages of requiring those with a gun to carry it openly.