Thou Shalt SIT DOWN AND SHUT UP

Y'all shut up now, y' hear?

by Jonathon Blevins

In Florida, if the word of God does not hold your attention, then the state will step in and help you pay attention. The Florida legislature decided that church is not a place for raucous or rebel rousing, let alone dissent. In fact the State passed Chapter 871: Disturbing Religious and Other Assemblies in order to combat the evil of lively discussion and enlightening dissent. If the Chapter does not activate your Constitutional Spidey sense, then please review the pertinent sections:

871.01 Disturbing Schools and Religious and other Assemblies
(1) Whoever willfully interrupts or disturbs any school or any assembly of people met for the worship of God or for any lawful purpose commits a misdemeanor of the second degree.

Without the legalese…If you disrupt Church (measured by their standards), you could face 60 days in county jail and a $500 fine…More fundamentally…If you choose to exercise your First Amendment rights in a place where people chant to a ghost, the STATE will punish you!

First, the statute should fail under the Lemon Test. The Lemon Test set forth a 3 prong test for determining appropriate government action in relation to religious institutions:

1)The government’s action must have a secular legislative purpose;

2)The government’s action must not have the primary effect of either advancing or inhibiting religion;

3)The government’s action must not result in an “excessive government entanglement” with religion.

The State bears the burden to illustrate conformity with ALL 3 prongs. Based on the plain language of the statute, the state would fail to meet its burden. The state may have a secular purpose in enacting the statute. The secular purpose is law and order. So, the State will claim “keeping the peace” as its secular purpose.

The state action has the primary effect of advancing religion. Religious organizations are private entities. Any given religious institution has enforcement mechanisms to maintain order among the sheep. First, the religions look to its mythical leader in the sky. Next, the religion looks to writings and interpretations of writings (mostly rules about how to live your life). Lastly, the religions have designated leaders. Many churches (used specifically and as a representative of other places of worship) have a board of directors, committees, and visible leaders. The organization can police itself. If someone has too much of the holy spirit or some of the wrong holy spirit, the church is equipped to handle the situation. Thus, the effect of adding a state provided police force is to allow the church to delegate enforcement of its dogma. The advancement comes in the form of providing state protection for a religious institution based on the institution’s standards.

The result of a state provided police force is “excessive government entanglement.” The entanglement exists because the language of statute puts discretion in the hands of the pulpit. The pertinent verbs are “interrupts” and “disturbs.” Who determines whether a sermon is “interrupted” or “disturbed?” The state is prohibited from making this determination. The state cannot determine whether someone is praying too hard, whether a doctrine is being taught appropriately, whether a holy rule was broken, etc. So, how could the statute be enforced without “excessive entanglement?” I submit, it cannot.

Finally, Sect. 871.01 unconstitutionally burdens free speech. The violation is content-based discrimination. The statute is content-based discrimination because the religious institutions are allowed to decide the violative speech. The churches decide what is “disturbing.” In order for the state to enforce a restriction based on the content of the speech, the state must meet a high burden. The state must:

1) Demonstate a compelling state interest in restricting the speech;

2) Narrowly tailor the restriction to the compelling interest by utilizing the least restrictive means

We need not analyze the second prong of the test. The state will be unable to produce any evidence that it has a compelling state interest. The only interest involved in the statute is a religious interest. If the state attempts to argue that its interest is providing law and order for religious institutions, then the state violated the prongs of Lemon. Thus, we begin again…

The possibility for abuse is too great in regards to this statute. Basically, the statute could fail for its “chilling effect” on speech. It appears that the statute is so broad that almost anything could violate the section. If you “willfully” power drill next to a church during service, you may be in violation…If you willfully organize a parade on Sunday to pass a church, you may be in violation…etc. No reasonable person can predict the enforcement of this statute. Therefore, this statute must fail.

In sum it is disturbing that any state would enact a statute with obvious constitutional violations. It is equally disturbing that people are not aware of the potential for government entanglement. I know that someone will respond with “why can’t the state enforce laws in churches?!” The answer: the state CAN enforce the laws in churches…however; churches cannot have special protection from the state. Church goers may answer to higher law in their minds but here on earth we all answer to the laws of man…equally.

Individual Rights? Forget Heller

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

As first reported here and here, the Second Amendment does not act (currently) as a restriction on the states’ power to regulate the right to keep and bear arms. The Heller decision simply laid the foundation for the eventual incorporation of the Second Amendment via the Fourteenth Amendment. Thus, unless you live in D.C. or are currently under Federal jurisdiction, Heller is not a shield from government intrusion.

A current illustration of the lack of protection comes from the United States Court of Appeals for the Eighth Circuit. See FN 2. The case demonstrates that while the right to keep and bear arms is an individual right, it is not a restraint on the individual states. For an analysis on the available constitutional restrictions please see post. However, this post will exclusively concern the incorporation doctrine as it applies, or should apply to the Second Amendment.

Heller in Wisconsin

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

Recently, the Eastern District of Wisconsin denied a felon’s motion to withdraw his guilty plea. Kenneth Robinson plead guilty to possession of a firearm as a felon. See Case. The motion stated that in light of District of Columbia v. Heller 128 S. Ct. 2783 (2008), the federal regulation of firearm possession by felons, 18 U.S.C. Sec. 922(g)(1), is unconstitutional as applied. The statute states, “it shall be unlawful for any person who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year . . . [to] possess in or affecting commerce any firearm or ammunition.”

The defendant, Mr. Robinson, argues that he can withdraw his guilty plea because his crime is no longer a crime. Mr. Robinson is incorrect. The statute remains valid on its face and as applied to Mr. Robinson.

Heller is parsimonious in application. The decision invalidated an absolute ban on handgun possession. The Supreme Court was careful to allow for reasonable regulation of the “new” individual right to keep and bear arms. Thus, the federal government lost the power to ban handgun possession but retained the power to regulate possession. The Eastern District of Wisconsin does a good job explaining the flaws in Mr. Robinson’s argument based on Heller. However, Mr. Robinson would be incorrect prior to Heller.

Even prior to Heller, Courts traditionally subjected laws regulating the right to keep and bear arms to a “reasonable regulation” standard of review. See Parker, 478 F.3d 370, 399 (D.C. Cir. 2007). Under this standard, courts should invalidate a gun law if it is arbitrary or so restrictive that it “eviscerates,” renders “nugatory,” or results in the effective “destruction of the right to bear arms.” See, e.g., State v. Hamdan, 665 N.W.2d 785 (Wis. 2003).

Such courts, applying a reasonableness standard, all recognized, “[t]he police power cannot [ ] be invoked in such a manner that it amounts to the destruction of the right to bear arms.” State v. McAdams, 714 P.2d 1236, 1237 (Wyo.1986). Under this standard, courts traditionally upheld gun control laws in limited situations banning only: 1) a limited class of persons from possessing firearms i.e. felons and intoxicated persons; 2) particular types of firearms; 3) the carrying of concealed firearms outside of one’s home or office; and 4) the transportation of loaded firearms. See, e.g., Johnson, 497 F.2d at 550 (upholding a statute restricting felon access to firearms). As Parker explained, states may impose such “time, place, and manner restrictions” on the right to keep and bear arms because they are “presumably reasonable.” 478 F.3d at 399. The restrictions on the Second Amendment right are parallel to those imposed on First Amendment rights. See What Does D.C. v. Heller mean for *First* Amendment Rights.

It appears that Mr. Robinson has little recourse based on court precedent pre and post Heller. While the Supreme Court ruled that the right to keep and bear arms is an individual right, it did not deem the right absolute. Certain restrictions are allowed including those levied on Mr. Robinson.

Guest Blogger Correct says Supreme Court…

By Jonathon Blevins,
Legal Satyricon Second Amendment Correspondent

Today the Supreme Court handed down District of Columbia v. Heller. The background of the case is available here:

http://randazza.wordpress.com/2007/11/24/guest-blawg-jonathon-blevins-on-the-second-amendment/

The agonizing 64 page decision can be found here:

http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf

To summarize Justice Scalia’s opinion, the Second Amendment plainly means what it says…The people (individual) has the right to keep and bear arms. The Court bridged the gap between gun nuts and regulation hippies by providing a laundry list of potential valid restrictions on firearm ownership, use, and storage. The case is seminal in its subject matter but limited in its power.

Heller is not the end of the story regarding the Second Amendment. The case simply means that DC’s absolute prohibition on firearms is unconstitutional and the individual has a “theoretical” right to keep and bear arms. The right is “theoretical” because the individual right to keep and bear arms is only applicable against the federal government. DC is a under federal law. Thus, the states may still restrict firearm ownership within its boundaries so long as it does not conflict with the ruling. The next step is incorporation via the Fourteenth Amendment. It is only a true right when we are ALL protected from state and federal intrusion.

While the Heller decision is a great day for individual rights and freedom lovers, it is a sad day for the “independent judiciary.” The Court was split 5-4. The rift was down the middle, conservatives v. liberals:

The issue split the court along conservative and liberal ideological lines, with Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito in the majority. Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter dissented.

The highest court in the nation should be truly independent. One should be unable to predict the outcome of a case based on political ideology. However, the Court proved it is continually susceptible to outside pressure. The Court should rule on logic, reason, and precedent…NEVER donkey v. elephant…this is an issue for a later debate.

The First Amendment has some backup in the fire power of the Second Amendment.

Jonathon Blevins

A New Challenge to the Sanctity of Marriage in Florida…

CONGRATULATIONS: PROFESSOR RANDAZZA & MRS. PROFESSOR RANDAZZA

FROM: First Amendment Squad / Blogsitters