Phil Lee1

Oct 20, 2003 (rev. 11/30/03)

"Men by their constitutions are naturally divided into two parties: 1) Those who fear and distrust the people . . . . 2) Those who identify themselves with the people, have confidence in them, cherish and consider them as the most honest and safe . . . depository of the public interest."

-- Thomas Jefferson

It is a longstanding principle that the exercise of a constitutional right is not subject to taxation or regulation in a way that imposes an "undue" burden on the exercise. So, a sales tax on all commercial items might be applied to newsprint, in the same way as applied to steel and not be viewed as a violation of a right to speech, but a large tax only on newsprint might well be judged as violating right to speech. This principle becomes important in evaluating burdens placed on keeping or bearing arms but only if it is a right protected by the Constitution.

Now, Del. Weldon has weighed in to say "I hear opponents of regulation cite the constitutional protection of firearms ownership as the basis for rejecting firearms regulations. I personally don't subscribe to that theory." These words could be interpreted in a variety of ways especially because of his other words "... don't shout about what Jefferson, Adams, and Franklin meant by the Second Amendment. We weren't there, and they aren't here."

At one extreme, Del. Weldon might be asserting that there is no Constitutionally protected right to arms. I hope that is not what he means. For the moment, I interpret his words that we individuals have a right to arms protected by the Constitution and he wishes to discuss regulations that do not place an undue burden on those rights. Courts will evaluate the burden in terms described by David Kopel in his law review article Rational Basis Analysis of "Assault Weapon" Prohibition (20 J. OF CONTEMP. L. 381-417 (1994)) or here.

In that article, Kopel states:

'When legislation impinges on fundamental constitutional rights, judicial review of the legislation employs the "strict scrutiny" test. The legislation is declared constitutional only if the legislation is "narrowly tailored" to achieve a "compelling state interest," and there is no "less restrictive means" to achieve the same goal. In contrast, legislation which does not involve fundamental rights is usually reviewed under the "rational basis" standard; the court will not declare the law unconstitutional unless the court finds that the law lacks a rational basis.'

The importance of this particular consideration is that the state's power is not limitless to interfere with rights even for worthy social results.

So, unless Del. Weldon believes there to be no Constitutional right to keep and bear arms, his interest in dialog should be confined to legislation "narrowly tailored" to achieve a "compelling state interest." A "compelling state interest" should be explicitly stated, not assumed and debate should address the question of whether some more narrowly tailored method could be found to achieve the same state interest.

Sarah Brady and her allies will offer legislation that isn't even linked in some rational way to a compelling state interest. For example, you will hear them say trigger locks will reduce gun violence defying all experience. You will hear her allies demand that cheap handguns not be sold but offer no proof that banning so called Saturday night specials will reduce violence. Recently, they tried to justify such a ban retrospectively with a Johns Hopkins study which used the wrong data (see Effects of Maryland’s Law Banning "Saturday Night Specials") or you will hear that assault weapons should be banned despite their use in less than 2% of the US violence with firearms.

Del. Weldon would perform a great service by preparing himself to evaluate proposed legislation by demanding that evidence be presented by bill proponents. To properly prepare, he should review First Reports Evaluating the Effectiveness of Strategies for Preventing Violence: Firearms Laws, a report recently released by the CDC, where the CDC admits the lack of evidence for firearm legislation's effect on violence. For years anti-gun groups have often cited the CDC's earlier biased research to claim more gun laws will reduce violent crime and suicide. Now these CDC researchers are admitting this earlier research is not adequate to make those claims and they want more research done.

Quite good research from John Lott and others gives conclusions that many of our gun laws are increasing violence not decreasing it. As time permits, I'll outline that research and where you can find it.

1 Phil Lee has a PhD in Mathematics and is active in Maryland politics to support the right of the people to keep and bear arms.