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Proposed constitutional amendment No. 3 on Nov. ballot

49er

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Central Alabama
I will be voting "NO" on a proposed constitutional amendment that would add language recognizing restrictions on our right to bear arms to our Declaration of Rights:



AS PROPOSED by Amendment No. 3 on the November ballot:


Article I, Section 26

(a) Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.

(b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.









CURRENT LANGUAGE of our Declaration of Rights:


Constitution of Alabama 1901

Article 1 Declaration of Rights.

That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 26
Right to bear arms.
That every citizen has a right to bear arms in defense of himself and the state.

SECTION 36
Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.
 

1245A Defender

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north mason county, Washington, USA
Wowwie!!!

I will be voting "NO" on a proposed constitutional amendment that would add language recognizing restrictions on our right to bear arms to our Declaration of Rights:



AS PROPOSED by Amendment No. 3 on the November ballot:


Article I, Section 26

(a) Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.

(b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.









CURRENT LANGUAGE of our Declaration of Rights:


Constitution of Alabama 1901

Article 1 Declaration of Rights.

That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 26
Right to bear arms.
That every citizen has a right to bear arms in defense of himself and the state.

SECTION 36
Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.


You are going to Vote "NO" to that?

REALLY?
 

1245A Defender

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north mason county, Washington, USA
Well,,,

From a quick read of the current and proposed versions, my guess is that the "strict scrutiny" part is the issue. Looks like the state constitution would go from "can't touch this" to "you can't touch it, well only if you have a reeeeeally good reason".

Ok, good, thanks for skoolin me on that point.
My in depth understanding and comprehension of some legal terms and such dont always make the grade!

I should have thought deeper anyways, as any constitutional amendment will always be
a land mine of tricky dips and pot holes..
 

OC for ME

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White Oak Plantation
...or, any infringements must be scrutinized in the light of "prove that this infringement of a right" is not reeeeeally a infringement of a right.

It could go both ways in a courtroom. But, courts have been upholding infringements without much scrutiny for many moons...hell, without any scrutiny in some cases. Forcing a court to at least scrutinize every anti-gun law is better than some scrutiny here or there every now and then.
 

49er

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Messages
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Location
Central Alabama
“ …State action that limits a fundamental right is generally subject to strict scrutiny. Troxel, 530 U.S. at 80, 120 S.Ct. 2054 (Thomas, J., concurring in judgment); Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) ("[C]lassifications affecting fundamental rights ... are given the most exacting scrutiny."); Graham v. Richardson, 403 U.S. 365, 375, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) …”


Ex parte ERG, 73 So. 3d 634 - Ala: Supreme Court 2011



The people of Alabama spoke clearly when we declared that "everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate".



“Article I of our Constitution of 1901 enunciates a "Declaration of Rights," wherein certain fundamental rights are guaranteed to all of our citizens. All of the provisions of the Declaration of Rights are to be liberally construed in favor of the citizen. Gayden v. State, 262 Ala. 468, 80 So.2d 501.”

Davis v. State, 291 So. 2d 346 - Ala: Supreme Court 1974



“Section 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it.”

Ex parte Cranman, 792 So. 2d 392 - Ala: Supreme Court 2000



We note that "ection 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it." Ex parte Cranman, 792 So.2d 392, 401 (Ala. 2000). Sections 1 through 35 of Article I set out basic and fundamental rights guaranteed to all Alabamians, and § 36 provides that no branch of government has the authority to impair or deny those rights.

1568 Montgomery Hwy. v. City of Hoover, 45 So. 3d 319 - Ala: Supreme Court 2010
 

fjpro2a

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Jun 27, 2010
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280
Location
North Carolina
My vote would be "NO" also


I am with 49er on this. The new language recognizes restrictions that, as of now, do not exist. KISS, if you get mt drift.
 

davidmcbeth

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earth's crust

I am with 49er on this. The new language recognizes restrictions that, as of now, do not exist. KISS, if you get mt drift.

Doesn't the state require permits? BR checks? Restrictions on felons owning? Other laws specific towards gun possession or use?

Then you already have restrictions.

But 49er is correct ... it implies that restrictions are OK.

"may I blink?" .. thank you mr government man

I would vote no.

The "strict scrutiny" legal idea is entirely made up by freaking POS lawyers .. like intermediate, etc. Courts could easily change what "strict scrutiny" means...they made it up after all.
 

49er

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Nov 27, 2008
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Location
Central Alabama
The question for our courts is "Why do we currently have restrictions when our right to bear arms for defense is 'excepted out of the general powers of government' ".

Maybe they will have a chance to answer that question some day soon.
 

49er

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Messages
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Location
Central Alabama
Unlike all of the states that touch Alabama's borders and many of the other states, the delegation of authority to the state legislature to regulate the manner of bearing arms for defense was rejected during the Constitutional Convention of 1901. The regulatory language found in the following proposals does not appear in our state's constitution:


XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
REJECTED:
@ p. 172
Day 7
Ordinance No. 87, by Mr. Ferguson:

An Ordinance concerning the right of citizens to bear arms.

Be it ordained by the people of Alabama in Convention assembled, That in lieu of Section 27 of Article I. of the Constitution of 1875, the following provision shall be enacted:

Section ---. That every citizen has a right to bear arms in defense of himself and the State, but the General Assembly shall have the power to regulate the bearing of small arms, shall define the same, and shall pass laws requiring a license for the bearing of such small arms.

Note--For the benefit of the Committee the following authorities are cited:
Miller vs. Texas, 153 U. S. P., 533, and authorities there cited: 92 U. S. P. 542 ; 116 U. S. P. 252.

Referred to Committee on Preamble and bill of Rights.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

REJECTED:

@ pp. 215-216

Day 8
Ordinance No. 131, by Mr. Murphree:
Relates to duelling, concealed pistols and other deadly weapons.

Be it ordained by the people of Alabama in convention assembled, That
Section 47, Article IV of the Constitution of Alabama, be and is hereby amended so as to read as follows:

The General Assembly shall pass such penal laws as they may deem expedient to suppress the evil practice of dueling and carrying pistols and other deadly weapons concealed.


XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Link: http://www.legislature.state.al.us/...1/proceedings/1901_proceedings_vol1/1901.html
 
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49er

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Messages
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Location
Central Alabama
“Constitutional Carry”

The constitutional authority granted to state legislatures found in the constitutions of Alabama's surrounding states is missing in ours. It was proposed for addition to our constitution in 1901, and the proposal was rejected by the Constitutional Convention of 1901.

Notice the difference in the language of Section 26 and Section 36 of our Constitution and that found in other constitutions:
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

Quote:
Constitution of Alabama 1901
Article I, Declaration of Rights
That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 26 Right to bear arms.
That every citizen has a right to bear arms in defense of himself and the state.

SECTION 36 Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.


XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX


Quote:
TENNESSEE CONSTITUTION - ARTICLE I. DECLARATION OF RIGHTS
§ 26. Weapons; right to bear arms
That the citizens of this State have a right to keep and to bear arms for their common defense; but the Legislature shall have power, by law, to regulate the wearing of arms with a view to prevent crime.

Quote:
CONSTITUTION OF THE STATE OF GEORGIA
ARTICLE I.
BILL OF RIGHTS
SECTION I.
RIGHTS OF PERSONS
Paragraph VIII. Arms, right to keep and bear. The right of the people to keep and bear arms shall not be infringed, but the General Assembly shall have power to prescribe the manner in which arms may be borne.

Quote:
THE CONSTITUTION OF THE STATE OF MISSISSIPPI
ARTICLE 3 BILL OF RIGHTS
SECTION 12. Right to bear arms.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.


Quote:
Constitution of Florida, Article I
Declaration of Rights
SECTION 8. Right to bear arms.–
(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.
(b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, "purchase" means the transfer of money or other valuable consideration to the retailer, and "handgun" means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph.
(c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony.
(d) This restriction shall not apply to a trade in of another handgun.
History.–Am. C.S. for S.J.R. 43, 1989; adopted 1990.



XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX



“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

US Supreme Court Justice Louis Brandeis dissenting
Olmstead v. United States, 277 US 438 - Supreme Court 1928

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
 

davidmcbeth

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One can certainly go be to the record during the time that the constitution was made to show what the actual intent of the law was.

The rejected proposals are interesting but one would have to go further in showing that debate included more than just the rejected text but the reason for the rejection.
 

49er

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Messages
156
Location
Central Alabama
Is there any doubt that the matter is "excepted out of the general powers of government and shall forever remain inviolate" since Section 36 declares that it is?

Our state's court of last resort doesn't seem to think there is any doubt:



“Section 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it.”

Ex parte Cranman, 792 So. 2d 392 - Ala: Supreme Court 2000



We note that "ection 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it." Ex parte Cranman, 792 So.2d 392, 401 (Ala. 2000). Sections 1 through 35 of Article I set out basic and fundamental rights guaranteed to all Alabamians, and § 36 provides that no branch of government has the authority to impair or deny those rights.

1568 Montgomery Hwy. v. City of Hoover, 45 So. 3d 319 - Ala: Supreme Court 2010



“... Article I of our Constitution of 1901 enunciates a "Declaration of Rights," wherein certain fundamental rights are guaranteed to all of our citizens. All of the provisions of the Declaration of Rights are to be liberally construed in favor of the citizen. Gayden v. State, 262 Ala. 468, 80 So.2d 501.”

Davis v. State, 291 So. 2d 346 - Ala: Supreme Court 1974
 

John Pierce

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Why requiring strict scrutiny of gun laws would be a good thing

Yesterday I received a call from a friend in Alabama who wanted my opinion on a proposed amendment to the Alabama Constitution which will be on the statewide ballot this election.

The proposed amendment, known as Alabama Amendment 3, is apparently generating a great deal of controversy in the local gun rights community despite being characterized by gun control advocates as an ‘extreme’ pro-gun measure.

Why the concern? Let’s start with the text of the proposed amendment.


The amendment which, if approved by the voters, would “provide that every citizen has a fundamental right to bear arms and that any restriction on this right would be subject to strict scrutiny; and to provide that no international treaty or law shall prohibit, limit, otherwise interfere with a citizen’s fundamental right to bear arms”, is actually being attacked by certain elements in Alabama as somehow being a back-door gun control bill.


According to a recent news report, those who oppose the amendment believe that “Amendment 3 changes the right to bear arms from one that “shall forever remain inviolate” to one that can be changed so long as the standards of strict scrutiny are met.


This position is based upon a truly flawed understanding of how constitutional rights are protected by the courts and how the Alabama courts have already ruled on the issue.


My friend asked if I would write an article that could explain the issue in simple terms and I hope the following will assist those not familiar with the issue to better understand why such an amendment would be a powerful protection for gun rights at the state level.


1)
Alabama’s constitution contains a provision which protects the right to keep and bear arms. Specifically, Article I Section 26 of the Alabama Constitution states “That every citizen has a right to bear arms in defense of himself and the state.


2)
No constitutional right is treated by the courts as absolute. In fact, in the 1980 case ofHyde v. City of Birmingham, the Alabama court of appeals seemed to apply a quite liberal standard in analyzing the right:


… The constitution in declaring that, ‘Every citizen has the right to bear arms in defence of himself and the State,’ has neither expressly nor by implication, denied to the Legislature, the right to enact laws in regard to the manner in which arms shall be borne. The right guaranteed to the citizen, is not to bear arms upon all occasions and in all places, but merely ‘in defence of himself and the State.’ The terms in which this provision is phrased seem to us, necessarily to leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals….


3)
How far the courts are willing to go before declaring that a law violates a constitutional protection is known as the ‘level of scrutiny’. In the Hyde case above, the court went on to explain where they would draw the line:


A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional. But a law which is intended merely to promote personal security, and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the constitution.


4)
The three basic levels of review are (in order of severity); rational basis, intermediate scrutiny, and strict scrutiny (with other tests being employed for certain rights that are far beyond the scope of this discussion).


Rational basis
requires only that the objective of the law be “rationally related to a legitimate government interest.” When this standard is used, practically any law will withstand scrutiny so long as the government can articulate some vague ‘legitimate interest’ they are serving to protect by passing the law. In the case of gun laws, this will usually be ‘public safety’.


Intermediate scrutiny
is a tougher standard than rational basis and requires that the law being challenged “furthers an important government interest in a manner substantially related to that interest.” From the Hyde case above, this appears to be the current standard by which gun rights cases are reviewed in Alabama. It is better than rational basis but not the best for gun owners.


Strict scrutiny
is the highest standard or review for fundamental rights. It requires that the law being challenged “furthers a compelling government interest in a manner that is both narrowly tailored and is the least restrictive possible means.” This is the gold-standard by which advocates wish all rights to be judged.


In summary:


  • Alabama does have a constitutional provision protecting the right to keep and bear arms.
  • The courts treat all constitutional rights as not absolute.
  • The courts will use some level of review when deciding cases.
  • The courts appear to currently be using a version of intermediate scrutiny.
  • Strict scrutiny is far better than intermediate scrutiny if your goal is to protect the right.
  • The amendment would require the courts to use strict scrutiny in the future.
  • Therefore, passage of the amendment would be a huge victory for advocates of the right to keep and bear arms.

Disclaimer:
I am not licensed to practice law in the state of Alabama and am writing this article as an educational tool focused on the general issues of constitutional law. Nothing herein should be construed as legal advice nor does it give rise to an attorney-client relationship.
 
Last edited:

John Pierce

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49er has asked the key question here. The answer is that they do not consider ANY right to be absolute and will use some level of review to justify certain laws. Don't you want them using the right yardstick?

The question for our courts is "Why do we currently have restrictions when our right to bear arms for defense is 'excepted out of the general powers of government' ".

Maybe they will have a chance to answer that question some day soon.
 

49er

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Location
Central Alabama
49er has asked the key question here. The answer is that they do not consider ANY right to be absolute and will use some level of review to justify certain laws. Don't you want them using the right yardstick?



Here's the "right yardstick" according to our state constitution:


Constitution of Alabama 1901
Article XVI Oath of Office.
Required of members of legislature and executive and judicial officers; form; administration.

All members of the legislature, and all officers, executive and judicial, before they enter upon the execution of the duties of their respective offices, shall take the following oath or affirmation:

"I, …, solemnly swear (or affirm, as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Alabama, so long as I continue a citizen thereof; and that I will faithfully and honestly discharge the duties of the office upon which I am about to enter, to the best of my ability. So help me God."

The oath may be administered by the presiding officer of either house of the legislature, or by any officer authorized by law to administer an oath.
 

49er

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Location
Central Alabama
Let's let this thread die and reply to the other thread on Amend. 3

Let's let this thread die and eliminate having two threads going on the same subject at the same time.



Please reply on the thread about John Pierce's message about proposed Amend. 3 on the November 4 ballot.



Thanks,
Eddie
 
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