Reply #58: The SCOTUS has ruled on a number of restrictions on rights.. [View All]

[X_Digger]

Cantwell v. Connecticut

In 1940, in Connecticut, a solicitor of any stripe was required to obtain a license before going door to door, whether to sell vacuum cleaners, encyclopedias, or their particular flavor of religion.

Newton Cantwell and two of his sons were proselytizing in a heavily catholic neighborhood. The trio were arrested for soliciting without a license.

Connecticut courts sided with the state. The SCOTUS disagreed-

to condition the solicitation of aid for the perpetuation of religious views or systems upon a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause, is to lay a forbidden burden upon the exercise of liberty protected by the Constitution.

Now, if we imagined this as a gun case against registration, would this be an analogous case? Maybe, but it's a stretch. It definitely sounds as though it would make a good analogue against 'may issue' CHL licensing, as the core problem seems to be the "determination by the state" on non-concrete grounds (in this case determination about what is or isn't a valid religion, but in 'may issue' states, the language in various state laws about a 'justified reason', or 'reputation of the licensee' sounds just as vague.)

Or how about this one..

Harper v. Virginia Board of Elections

In 1966 (two years after passage of the twenty-fourth amendment's prohibition on poll taxes in federal elections) Annie E. Harper was refused voter registration in Virginia. The SCOTUS ruled on Harper's side, saying in part,

a state violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter or payment of any fee an electoral standard. Voter qualifications have no relation to wealth.

Now, could this be analogous to registration fees and CHL fees for guns and gun owners? Possibly. The salient point I see is the last line.. paraphrasing for this context, "exercise of a constitutional right has no relation to wealth." Courts have found reasonable fees for demonstration permits acceptable, sure, but to require a fee to stand on a soap box on a corner? Nope.

One more..

Talley v. California

A Los Angeles city ordinance prohibited the distribution of flyers without the writer's name and address (among other things.) Talley was arrested and the case eventually made it's way to the SCOTUS. The court ruled in Talley's favor, saying-

We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 U.S. 516; N. A. A. C. P. v. Alabama, 357 U.S. 449, 462. The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face.

Bear with me on this one. If the intent- the reason- for the second amendment is to allow the citizens of the United States to be armed, as a counter to federal power (remember, standing armies were loathed at the time of the second amendment's passage), then might registration of firearm owners not serve a similar purpose: (paraphrased) "identification and fear of reprisal might deter perfectly peaceful exercise of the people's right to keep and bear arms"? Anonymous firearms ownership is something that I think the drafters of the second amendment would agree with.

So those are some cases that I think might shed some light on what may happen once the second amendment is incorporated against the states (and assuming we get a level of scrutiny set fairly high.)

If poll taxes, registration of publishers, 'determinations' about religions by the state have all found to be verbotten by the state against incorporated rights, then a 'civics test' for gun ownership stands little chance.

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