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It seems clear from even a cursory review of the various versions of the right to bear arms, as reflected in the Second Amendment to the United States Constitution and in several state constitutions, that these provisions implicitly, if not explicitly, encompass the concept of bearing arms for the common defense.
As we discuss infra, based on the text, structure and history of the constitution, we hold that art. 1, sec. 22 provides individuals with a right to keep and bear arms, subject, however, to reasonable regulation by the state in exercising its police power.
Rhode Island's constitution includes a provision similar to the Second Amendment., but this recent appeals court decision doesn't see that provision as a barrier to a "may issue" concealed-carry provision. Apparantly, in Rhode Island, the "right of the people to keep and bear arms" refers to the right of individuals to join the military. Hmm. And can anyone tell me where they keep pulling this absurd 'reasonable regulation [under the] police power" from?
Is the First Amendment subject to "reasonable regulation"? How about prior license from the state before it can be used?
CLayton Cramer has some good analysis, but the only good points about the ruling itself are as follows:
All told, though, the decision isn't wonderful. It declines to strike down a may-issue law and draws a distrinction that appears to suggest that banning handguns would pass constitutional muster. The dissenting opinions have some good bits:
Nevertheless, we know from the text of the constitution that the people s right to keep and bear arms was so important to the framers that they provided that it shall not be infringed. Id. Indeed, this is one of the fundamental rights belonging to the people of this state that our constitution declares to be essential and unquestionable. The constitution also provides that the people s right to keep and bear arms shall be established, maintained, and preserved so that it shall be of paramount obligation in all legislative, judicial and executive proceedings.
In my judgment, such an arbitrary licensing scheme was and remains an unconstitutional infringement on the people s fundamental right to bear arms for any lawful purpose and on their equally fundamental right to due process of law whenever the state seeks to deny, abridge, or infringe upon such a fundamental right. Indeed, because the right to keep and bear arms is one of the essential and unquestionable rights and principles that are protected by our state s constitution, I believe that this right constitutes a fundamental liberty interest that is entitled to due-process protection under both state and federal constitutions.
As judges, our job is not to decide whether this constitutional right to keep and bear arms was or remains a good idea; or whether it should enjoy the constitutional status of an essential and unquestionable right. That issue has been decided for us already by the people of this state when they enshrined it in our constitution s Declaration of Rights and decided to leave it there for more than 160 years, unamended and unqualified, where it still continues in force to this day.
Read the whole dissent (in PDF format). It starts on page 30.
This entry was published 2005-09-24 10:43:35.0 by TriggerFinger and last updated 2005-09-24 10:43:35.0. [Tweet]