Malum Prohibitum
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Link: http://www.claytoncramer.com/weblog/2006_08_27_archive.html#115699741198720987
Wednesday, August 30, 2006
Interesting Dilemma For California Gun Control Advocates
A reader, who has done some very interesting work in the history of how the "well-regulated militia" clause of the Second Amendment has been interpreted by the courts, points out that SB 1441, which bans sexual orientation discrimination in California government funded programs, has an interesting side effect and conflict with existing law.
Some years back, a homosexual California National Guardsman decided to challenge "Don't Ask, Don't Tell," arguing that California law prohibited discrimination based on sexual orientation. In Holmes v. California National Guard (9th Cir. 1997), the 9th Circuit upheld discharge of Holmes from employment that could be called into federal duty. (Something that you may not know--the National Guard is only under federal control and direction when called into duty; the rest of the time, the National Guard is under state authority as militia.) Holmes was transferred to duties that, I presume, were only state militia--and eventually separated from even that service, because he wasn't eligible for federal service because of his sexual orientation.
So what happens now? If SB 1441 is enforced, California may no longer fund any part of the National Guard that is subject to federal call-up--and I think you could make an interesting case that California may not fund any activity associated with the National Guard for that reason.
So what makes this "interesting" with respect to gun control? Gun control advocates for a very long time have argued that the Second Amendment doesn't protect an individual right--only the right of the states to regulate their own militia organizations. As my friend J. Norman Heath points out:
Has Congress created an "unconstitutional condition" on a state prerogative?
Depends in part on whether the state has a right to define militia enrollment.
If California cannot define militia enrollment free from Congressional interference, then California cannot bring its citizens under the protection of the Second Amendment RKBA, as that right has been interpreted. I.e. the state would have no area of protected authority under the Second Amendment.
Conversely, if the Second Amendment protects the power of the state to arm citizens as militia, then it protects the power of California to enroll homosexuals in the militia regardless of federal law.
It would also protect the power of Idaho to enroll everybody from 16 to 99 years old, and the power of Rhode Island to enroll quadraplegics and felons, etc.
So we'd end up with 50 different militias that would have to be integrated in case of a national emergency, which is exactly what the Framers did NOT want when they wrote the Constitution, and why they delegated the militia powers.
Why, in 1789, would Madison have re-opened the issue of militia powers and written an amendment that allowed the states to define militia enrollment? Why compromise the federal power to "organize and arm" the militia?
If gun control advocates really believe their claim about what the Second Amendment protects--the right of the states to organize militias--than they could argue in the inevitable lawsuits trying to resolve the discrepancy between SB 1441 and California funding of the National Guard that the Second Amendment guarantees the states the right to organize the militia. If they do so, they'll lose, based on the existing precedents, as Mr. Heath's law review article above points out--and the gun control advocate claim about what the Second Amendment protects will be dead.
posted by Clayton at 9:49 PM
News Blackout?
I received a fairly upset email about California Governor Schwarzenegger signing SB 1441, a bill that prohibits discrimination based on sexual orientation in any government-funded program or activity. I decided to try and find out more about SB 1441--but the mainstream news media seem to be ignoring it. When I entered "SB 1441" in Google's news search engine, there were 17 articles--and all but one of them were from either gay newspapers or advocacy groups, or Christian newspapers or advocacy groups. The one exception was a column a bit more than two weeks old by liberal columnist Dan Walters of the Sacramento Bee, and it only mentioned SB 1441 tangentially.
Whether you think this is a good law or a bad law, it is a pretty significant event--and one deserved to be covered. If SB 1441 reflects the wishes of a majority of Californians (which I find unlikely), then they should know about it, shouldn't they?
The text of the bill in the form that passed into law is here. The official legislative analysis of the effects are here, and don't sound all that dramatic. But what constitutes "any program or activity conducted, operated, administered, or funded by the state or any state agency"? To hear some tell it, this will be the end of any funding of any Christian social welfare agency (such as that which ended New York City assistance to the Salvation Army's efforts some years ago), or the use of California State Scholarships at Christian colleges.
Now, liberals doubtless think this is a good thing--if they had their way, there wouldn't be any Christian organizations in existence anywhere in California. But I think there's at least an arguable case that this law, by imposing a standard that is contrary to the religious beliefs of individuals and organizations, is contrary to the First Amendment's guarantee of freedom of religious worship.
For example, let's say that Mississippi passed a law that prohibited use of state funds by any organization that discriminated against pork-eating. The grounds might be that pork is a perfectly safe food, and such discrimination is irrational and contrary to the best economic interests of Mississippi's pork industry. You know that the ACLU would file suit in a flash, claiming that this pork-eater anti-discrimination law, by depriving Jewish or Muslim organizations of an equal shot at applying for Mississippi grants, was a violation of the freedom of religious worship. You could even make a case (quite a bit weaker of a case), that this was a violation of the establishment clause as well, because it put organizations that don't discriminate against pork-eaters at an unfair advantage.
Not all of those organizations that get this unfair advantage are religiously based, of course. The ACLU, for example, has no problem with pork-eaters. It is also true that there are non-religious organizations on the other side that would be similarly injured, such as People for the Ethical Treatment of Animals. Still, would there be any serious question as to the effect (and likely intent) of such a law?
posted by Clayton at 6:03 PM
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