Subject: Anti-gun groups sues over new initiative law
Date: 05 Jun 2003 18:29:43 GMT
This is likely of interest to gun owners, those interested in flouridation, etc.
FWIW, while I disagree with the court's so-called "one man one vote" ruling that invalidated Utah's previous geographic requirment on petitions, I think the legislature went too far with the new law. In light of the court's ruling (and with an unwillingness to defend the principle of geographic representation), some majority or even supermajority of Senate districts would have been a workable solution. Reducing the time frame might also have been appropriate. I believe the various meetings and notices, however, will do little or nothing good and really are just an inpediment to petitions.
Finally, as much as it harms my favorite cause short term, I do happen to personally side with the victim disarmers in their argument that the new law should not apply retroatively. I don't like ANY rules being changed midgame.
That being said, if the court rules with the State on at least the Senate district requirments the petition is probably doomed. However, if the court rules against the State on that and any other major points, we may be in for a real fight this time as I understand the victim disarmers have out-of-State money for paid signature gatherers this time around.
The state is defending recent amendments to Utah's initiative law, saying they pass constitutional muster and should apply to a group seeking to ban guns from churches and schools.
Called the Utah Safe to Learn-Safe to Worship Coalition, the group filed suit in 3rd District Court, asserting the "severe" restrictions approved by the 2003 Legislature essentially eliminated the ability of people to put an issue on the ballot.
In a response filed late Tuesday, the state argued the changes are not unduly burdensome and meet the "test" handed down in a previous initiative ruling by the Utah Supreme Court.
"Their difficulties may also be due to lack of interest, improper presentation, lack of funding or any other various difficulties they may have brought on themselves with regard to their initiative and signature-gathering efforts," Assistant Attorney General Thom Roberts wrote, emphasizing the last three initiatives that appeared on the ballot show that sufficient signatures can be gathered.
The current dispute over Utah's initiative process stems from legislative "fixes" made during the 2003 General Session after the state's previous initiative law was challenged and ultimately deemed unconstitutional.
At the time, the court held the geographic distribution requirement ù requiring signatures be collected in 20 of Utah's 29 counties ù violated the "one man one vote" tenet because it gave disproportionate favor to rural counties.
In response, lawmakers adopted a signature requirement based on Senate districts, not counties, with initiative proponents now required to gather signatures in 26 of Utah's 29 senate districts.
Additional changes impose a one-year deadline for proponents to gather signatures and submit them to the Lieutenant Governor's Office for certification, as well as seven public hearings spread throughout the state.
The latest challenge says the amendments "burden core political speech," but the state scoffed at that, replying they do not restrict or burden free speech rights at all.
"Plaintiff is free to initiate and circulate petitions, engage in political discussion, raise money, campaign and otherwise engage in all their First Amendment freedoms," Roberts wrote, pointing out, "plaintiff confuses its exercise of First Amendment rights with political success, which is not protected under the First Amendment."
The coalition is urging the court to declare the amendments unconstitutional, or at the very least deem that they not be applied "retroactively" to their effort.
They filed the initiative petition with the Lieutenant Governor's Office in March, two months before the new law went into effect. They say whatever law was in effect at the time of the petition filing should be the controlling guide throughout the process. At the time, only the requirement that 76,180 signatures be gathered statewide had been left standing in the wake of the Supreme Court ruling.
The state doesn't agree, saying that by the time the signatures will be submitted to the Lieutenant Governor's Office, the new law should apply.
A hearing on the arguments is set for 9 a.m. June 16 before Judge J. Dennis Frederick.
Forwarded from Clak Aposhian of USDIN (Utah Self-defense Instructors' Network):
W. Clark Aposhian here,
I am copying this to several firearm rights supporters to ask for the kind of help that only you can provide. Forward this along as you deem appropriate.
By now you have heard of our friend, Jade Pusey's condition. The good news is he is about 1/2 way towards his goal of $200,000 http://www.jadepusey.com
With time I am certain he will obtain the needed funds for his bone marrow transplant. We just don't have much time though. He needs the funds this summer.
I have proposed a June 28th Concealed Carry Class in his honor and for his benefit. This date works with the Salt Lake City Library as well as the July 12th. This will also provide a good CCW exposure to the rather sterile environment of the Salt lake City Library. Remember "Exposure increases tolerance"
I realize the 28th is somewhat short notice but the majority of the work that needs to be done is not preparation rather it is on the day of the class. Let's "shoot" for the 28th.
This is where you come in.
the needs are:
Instructors The more the merrier (some to teach and some to have applicants demonstrate firearm handling skills with)
Finger printers Someone with some (even a little) experience is best
Photographers Best with a digital or even better a Polaroid portrait camera
Notary Public
Treasurer Someone to separately handle the funds. 100% of all money must go to the Jade Pusey fund.
Check in people They will take the money and hand out materials and paperwork
Paperwork people People who will verify all the paperwork is filled out correctly prior to Instructor signing application
Staff Some to verify that loaded weapons (stay concealed) someone to monitor for problems, act as runners,
Media person Our spokesperson should be frothing at the mouth, jumping up and down to give the reporters what they expect.
This person must also handle the radio, print and television contacts to make certain they are informed.
We will also need flyers and course materials to be copied.
We need someone to distribute these to the local sporting goods and gun stores.
We should also encourage local ranges to donate range time for attendees of this class. The class will not require live fire unless we can find a way to work it in. If the local ranges agree we could give them a coupon they could use on a specific date and time for live fire instruction if needed.
Jade is truly a wonderful person, he has worked hard to maintain and increase the acceptance and constitutional and civil rights of gun owners and concealed carry holders. Let us now assist him to get better and back to work.
For a detailed description of the problem and other efforts go to http://www.jadepusey.com
IMHO, Alaska is now in an even better position, CCW-wise, than is Vermont. Alaskans need not get a permit to CCW if they don't want to. BUT, unlike Vermont, a permit is available for those want reciprocity in other States or want to avoid the brady background check fee.
I note that Alaska does not allow its permit holders to CCW on school grounds (I guess you have no right to self defense if you chosen profession happens to be school teacher, adminstrator, coach, staff, etc). However, even under current federal law, that remains an option to the States so long as a permit is involved. IOW, lacking a permit, those in Vermont can not CCW in schools. If Utah were to do what Alaska has done, our permit holders would remain free to carry in schools while those without permits would, under federal law at least, not be able to carry in schools.
Perhaps we should adopt the term "Alaskan carry" to describe a State that does not require a permit to CCW, but has a permit available for those who want/need one for various reasons.
Subject: Cali based Federal Court recognzies difference between "carrying" and
Date: 18 Jun 2003 21:00:36 GMT
Interesting ruling from a California court on the distinction between carrying a gun and using a gun. Below.
I have long believed that the use of the phrase "keep and bear" in the first portion and "use" in the second portion had to apply to very distinct things.
The Utah constitution says this about RKBA:
"Article I, Section 6.
The individual right of the people to keep and bear arms for security and
defense of self, family, others, property, or the state, as well as for
other lawful purposes shall not be infringed; but nothing herein shall
prevent the Legislature from defining the lawful use of arms."
Now a California-based Federal court has reached a similar conclusion. From today's Trib's "News of the Weird" column:
"Armed with an argument: The U.S. Court of Appeals in San Francisco
overturned the 'armed robbery' conviction of Deshon Rene Odom in May, saying that even though Odom had a gun in his waistband, he hadn't meant for anyone at the bank he was robbing to see it, and therefore that he was not legally 'armed.' The court said that the federal law speaks only of _using_ a gun, not _carrying_ one; on the other hand, the court acknowledged that if Odom had waved around a toy gun that looked real, that would be enough for 'armed'." robbery." (_emphasis_ added.)
Of course, making this precedent stick in Utah will cost a whole lot more than a CCW permit. One might also consider the idea that if you don't intend for someone to see your firearm, you aren't "armed."
Here's my favorite mental test on the topic. Simply answer the following three questions:
1-Do you have any credit, charge, or debit cards?
2-Where are those cards right now?
3-When was the last time you used one of those cards?
Now, very typical answers would go something like this:
1-Yes, I have a couple of cards.
2-In my wallet which is in my back pocket. (Or maybe, "In my purse, briefcase, etc.)
3-Last night when I bought gas. (Or maybe, "This morning to scrape the frost from my windshield.)
Those three questions, and their usual answers sum up the the three key actions in Utah's Constituional protectin of RKBA.
Question one is all about "keeping" (or in modern verncular, "owning") something.
Question two is the essence of "bearing (or "carring") something.
And question three, and ONLY question three, is really about "using" something.
IN short, while it is difficult to use something like a gun or credit card without carrying it, it is a very simply and very common matter to own and to carry a gun or a credit card without actually USING it. The legislature has power to regulate the USE of firearms (which, just like the credit card being used to clean a windshield, can be used in many different ways), but is prohibited from infringing on the the keeping (owning) OR bearing (carrying) of firearms.
Unfortunately, the most recent Utah SC test of any possible distinction on these points was by a convicted (non-violent I believe) felon who argued that laws against his owning a gun and keeping it in his own residence violated the Utah Constitution as he was not carrying or using the gun. He lost on what I think was a unanamous decision.
Don't suppose anyone knows any legislators who respect our Constitution enough to sponsor a Vermont (or Alaska) style carry law that will eliminate penalities for peacably carring (open or concealed) a gun without a permit?
I have Fantastic News and somewhat Disappointing news.
First the disappointing news is that for the time being the JADE Pusey CCW Benefit class will indefinitely be postponed. It will be rescheduled if needed. I have received several e-mails from you folks and others inquiring as to the recent announcement that the relief fund has met its goal and in fact surpassed it. (That is indeed the great news)
Some have E-Mailed that it may be incorrect to have a benefit when the goal has been met.
I am willing to stay with the schedule but also understand your concerns. I propose that the CCW Benefit class be rescheduled when and if it is needed to provide any additional funds not covered by insurance for Jade's treatment. I appreciate all of your willingness to provide instructions and related assistance in this endeavor. perhaps we can keep this group together and have an annual CCW Benefit for worthy causes.
