imported post
Pace wrote:
I will be meeting next week with the Exec Director of the Nevada ACLU about issues in Gun Rights. What would you like me to ask him?
Here are some questions I would like to have answered. I respectfully request that, if possible, you print these out to share with the Executive Director as I have written them.
1: Can the Nevada ACLU take steps (such as finance a lawsuit) against government entities displaying signs on their buildings stating "NO FIREARMS PER NRS 202.3673." These agencies are willfully conspiring to deprive law-abiding citizens of their right to bear arms by posting signs with INTENTIONALLY DECEPTIVE language. The language implies that the cited Nevada statute authorizes the agency to prohibit firearms on the premises, when in fact the statute cleary pertains only to the carrying of CONCEALED weapons. As most of us who frequent this forum are aware, open carry is totally lawful at these locations and cannot be prohibited by bureaucratic edict. These agencies should be required to either remove the signs or replace them with ones clearly indicating that only concealed weapons are prohibited.
2: Since the Nevada Constitution as well as the U.S. Constitution specifically secure the right to keep and bear arms, any legislation regulating or restricting the exercise of that right must be subject to judicial review to ensure it is within constitutional bounds. Just as the legislature may not by legislation arbitrarily restrict the right to freedom of speech at their whim, since it is a right secured by the Constitution, the same principle ought to apply to RTKBA issues.
In the case of
Schenck v. United States (1919), U.S. Supreme Court Justice Oliver Wendell Holmes wrote the unanimous decision of the Court:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
This has come to be known as the "clear and present danger doctrine" and is very wise jurisprudence.
When it comes to the right to bear arms, however, the legislatures of the federal government and various states in general, and that of Nevada in particular, have arbitrarily placed many extremely burdensome restrictions on the exercise of this right, often to the point where it becomes impracticable, if not impossible, to effectively exercise this right without running the risk of accidentally violating some law and --- poof! -- instantly becoming a "felon" simply for stepping on the wrong side of the sidewalk.
I suggest that the requirement of "clear and present danger" upheld in
Schenck ought to apply equally to arms issues as it does to speech issues. If the state cannot reasonably demonstrate that the exercise of the right to bear arms by competent citizens in a particular situation would pose a clear and present danger to the public safetly, then any statute so restricting the right must be struck down as constitutionally impermissible. The question must be asked: does a law-abiding armed citizen suddenly pose a "clear and present danger" if he walks into a school ... or a town hall meeting ... or a Post Office ?
3: And while we are on the subject of Post Offices, where carry is prohibited by federal as opposed to Nevada law, this raises another issue relating to our constitutional principle of federalism, or "states' rights." As opposed to my first two points, this one may be far more difficult to do anything about given the present legal environment, but I'll mention it anyway since I feel it is important. Perhaps it must remain "food for thought" for another day, at least for now. But here is the question:
Does not the state retain territorial jurisdiction on the grounds of a Post Office, national park, or other area where the federal government presumes to regulate or prohibit the carrying of firearms? If the state has not formally yielded territorial jurisdiction in each case, then IT -- not the federal government -- should be the sole authority in determining what constitutes a lawful exercise of this right.
That being the case, when federal legislation exists violative of this right, such as the ban on firearms at the Post Office, it should be incumbent on the state government to take action on behalf of its citizens to protect them against unconstitutional rights violations by the foreign (federal) government. Perhaps this would involve lawsuits between the state and federal government in the U.S. Supreme Court or warnings by state law enforcement to federal agencies on these matters. I know, this is highly unlikely at present. But perhaps a time will come where an organization like the ACLU could file a lawsuit to COMPEL the state government to take these sorts of actions, because that it it's proper role and responsibility, and the bottom line is that neither level of government is doing its job when laws like this are allowed to remain on the books.
(edit: adding one more point)
4: Can ACLU-NV take steps (again, file a lawsuit?) to have the state law which permits Clark County to require gun registration declared unconstitutional? The NV and U.S. Constitutions both clearly secure this right, so the legislation giving Clark County special powers in this regard ought to be struck down immediately.
