Equal Protection Clause?


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subknave
December 22, 2008, 09:23 AM
I was researching some of the newer antigun bills introduced into commitee and it seems most of them as well as a lot of current gun laws have exceptions for police and other government entities. Has this ever been argued in court as violating equal protection since you are essentially denying rights to certian people while allowing designated individuals to exercise those rights?

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everallm
December 22, 2008, 10:00 AM
The police are a designated arm of the state and as such the members WHILST active would fall outside equal protection as the clauses relate to individuals as individuals.

You could make a justifiable case that retired or non active duty persons have no expectation of greater rights as they are no longer under the umbrella of an arm of the government.

subknave
December 22, 2008, 11:45 AM
Yes but as many of these laws apply to retired and no longer serving has there been any case law arguing this? Also as these laws tend to give the Government rights not applicable to the People and expressly stipulated as belonging to the people in the constitution vice expressly for the government (as is taxation and ather things necessary to run the government) isn't it against if not the letter at least the spirit of the constitution?

Could one argue that it is in effect making the government above the law and creating a class of politicians and people with privileges not allowed the average citizen. And isn't this in essence what is happening?

DefectoAntesto
December 23, 2008, 01:22 AM
ever been argued in court as violating equal protection since you are essentially denying rights to certian people while allowing designated individuals to exercise those rights

Probably not a winning argument. Equal Protection (EP) only has teeth when the group who is being discriminated against has a "protected" status, e.g. racial minorities or women. For all other laws which group people into one category or another, the government need only show that the law (1) has a legitimate purpose and (2) that the law is rationally related to the purpose.

The paradigmatic example is issuing drivers licenses. The government draws an arbitrary line for driving privileges between those who are under 16, and those who are over 16.

Are the under-16s being denied a privilege that the over 16s are given? Of course. But the government may (1) legitimately decide who is fit to drive and (2) the arbitrary line drawing is rationally related to deciding who may drive. Therefore, the law--although indeed denying "equal protection" to the under-16s--is constitutional under the "rational-basis" test.

The tests for constitutionality get tougher to meet when the group is protected, as I mentioned above. If, for example, a law made a classification between blacks and whites, then it would be much more likely to be unconstitutional under EP because the line-drawing would be based on race. There are books on this for anybody who is interested.

But in any event it is clear that gun owners/non-gun owners or LEOs/non-LEOs are not protected classes for purposes of EP. Thus any laws drawing lines between them would fall under the rational basis test and most likely be upheld.

An EP argument such as the one you were thinking about, although laudable in principle, is probably a loser in practice. I doubt you'll find any reported cases where such an argument was made--it just does not square with EP doctrine.

natecade1
December 23, 2008, 01:34 AM
DefectoAntesto said it right.
I am by no means a legal expert but I am a Legal studies major, and will be starting law school in 2010. I was paying attention in both my con-law classes and the above seems pretty accurate.

Also if you were to win your case re: retired and off-duty LEOs they would just remove those exceptions from the laws, so while it would be a win in the courts it wouldn't really be a win for gun rights.

everallm
December 23, 2008, 08:42 AM
Defecto,

"Protected status" is a bit of a misnomer ask any Human Resource person who's been at the end of a discrimination lawsuit.

The law has been read to mean any person of persons who can demonstrate an arbitrary, capricious or inconsistent prejudice or harm based on ANY characteristic is on a "protected status". It has to be said that just as in "Animal Farm" some are more "protected" status than others............

The real path would be pushing the privileged status of those who are no longer active members of a police force.

DefectoAntesto
December 23, 2008, 11:10 AM
"Protected status" is a bit of a misnomer ask any Human Resource person who's been at the end of a discrimination lawsuit.

The law has been read to mean any person of persons who can demonstrate an arbitrary, capricious or inconsistent prejudice or harm based on ANY characteristic is on a "protected status".

I think you're conflating constitutional Equal Protection with statutory anti-discrimination law.

Constitutionally, EP has specific requirements where the level of "scrutiny" the court will apply to a challenged law is wedded to the the plaintiff "protected" status. E.g., a law would probably be unconstitutional under EP if it classified people based on race, whereas it would probably not be unconstitutional if it classified people based on educational level.

In the Constitutional EP context, arbitrary, capricious, or inconsistent lawmaking is theoretically okay, provided that the government can show a legitimate purpose and that the law is rationally related to that purpose. As was famously said in dissent to an EP case (whose name escapes me at the moment), there is nothing unconstitutional about a silly law--as long as the court can conceive of a rational basis for it.

That said, statutory anti-discrimination law, such as Title VII, has completely different requirements. When discussing discrimination lawsuits in the HR context, you are almost certainly dealing with statutory law--not with EP. These statutory requirements are quite different than Equal Protection under the 14th Amendment of the Constitution.

Since I don't know a lot about anti-discrimination law, I will leave that topic to another poster. But if I were a betting man, I would bet that statutory anti-discrimination law would not get you very far with a LEO/non-LEO classificaiton; most of these statutes are tied to characteristics such as race, age, national origin, sexual orientation, etc--but not LE experience or lack thereof.

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