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utah-firearms-digest       Friday, July 17 1998       Volume 02 : Number 087




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Date: Fri, 17 Jul 1998 11:57:42 -0600
From: "David Sagers" <[e-mail]>
Subject: Fwd: A Bit of Good NewsGSL> Halbrook

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Subject: GSL> Halbrook
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>Return-Path: <[e-mail]>
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>From: <[e-mail]>
>Date: Thu, 16 Jul 1998 15:24:37 EDT
>To: [e-mail]
>Subject: GSL> Halbrook
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>
>----------------------------------------- http://GunsSaveLives.com
>
>
>MORE HALBROOK!
>July 15, 1998
>
>             "ASSAULT WEAPON" BAN IN COLUMBUS, OHIO,
>                      RULED UNCONSTITUTIONAL
>     The "assault weapon" and high capacity magazine bans in
>Columbus, Ohio, have been declared unconstitutional by a federal
>appellate court.  This decision nullifies similar bans with
>identical language, such as that in Cleveland and other cities.
>
>     On July 15, 1998, the U.S. Court of Appeals for the Sixth
>Circuit, sitting in Cincinnati, Ohio, declared the Columbus
>"assault weapon" ban unconstitutionally vague and a violation of=20
>equal protection of the law.  Judge Suhrheinrich wrote the opinion.=20
>Peoples Rights Organization, Gerald Smolak, and Dennis Walker, who
>challenged the law, are represented by Stephen P. Halbrook, who
>argued the case.
>
>     The court held two grandfather clauses violative of equal
>protection.  Under these clauses, the only persons allowed to
>possess assault weapons and high capacity magazines were persons
>who registered assault weapons under the old ordinance previously
>declared by the Court of Appeals to be vague.  The court
>invalidated all five of the definitions of "assault weapon" to be
>unconstitutionally vague.
>
>     The court found that the controversy is justiciable and that
>the plaintiffs were threatened with prosecution under the
>ordinance.  Further, it noted that "the current law is not subject
>to any type of clarifying interpretation by a local administrative
>agency.  Rather, the words of the ordinance provide the sole source
>of guidance for firearms' owners."
>
>     On the merits, the court first treated the equal protection
>clause, which "keeps governmental decisionmakers from treating
>differently persons who are in all relevant respects alike."=20
>(Citing Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).  Section
>2323.31(B)(3) exempts from prosecution "any person who lawfully
>possessed an assault weapon and who registered that assault weapon
>pursuant to former Columbus City Codes Section 2323.05 in 1989."=20
>"Thus, the City's grandfather provision is predicated upon an
>ordinance that we previously invalidated, precisely because it
>failed to place firearms' owners on notice as to whether or not
>their firearms were 'assault weapons.'"  The court held that the =
grandfather
>provision fails the rational basis test.  "There simply
>exists no rational distinction between the individual plaintiffs in
>this case and those persons who registered their firearms during a
>thirty day window in 1989 on the basis of little more than a hunch
>that their firearms might constitute 'assault weapons' under the
>City's unconstitutionally vague ordinance."
>
>     The court also invalidated a grandfather clause for magazines
>held as part of registered assault weapons.  It upheld a clause
>exempting magazines owned by a person who has a firearm registered
>under the National Firearms Act.  However, the effect of the former
>is that the magazine ban violates equal protection and is void.=20
>The decision is not a model of clarity on this issue, but the
>invalidity of the magazine ban is the necessary consequence of
>finding its grandfather clause violative of equal protection.
>
>  The court then turned to the vagueness issue.  Noting that a
>strict test applies where criminal penalties are at stake, the
>court also enquired "whether the statute contains a scienter
>requirement or imposes strict liability. . . . Indeed, 'in the
>absence of a scienter requirement  .  .  .  a statute is little
>more than a trap for those who act in good faith.'"  (Quoting
>Colautti v. Franklin, 439 U.S. 379, 395 (1979) (brackets and
>internal quotation marks deleted).  The ordinance here has no
>knowledge element and imposes strict liability.  Given the criminal
>penalties and lack of a scienter requirement, "a relatively
>stringent review of the City's assault weapons ban is necessary."=20
>Even if the ordinance required a showing of recklessness, the same
>strict test would apply, for mere possession of any firearm could
>arguably meet that standard.
>
>  The court proceeded to find all of the definitions of "assault
>weapon" vague.  The first definition is "any semiautomatic action,
>center fire rifle or carbine that accepts a detachable magazine
>with a capacity of 20 rounds or more."  The court explained:
>
>  the provision is little more than a trap for the unwary.  The
>  record indicates that any semiautomatic rifle that accepts a
>  detachable magazine will accept a detachable magazine of any
>  capacity which might exist, as it is the magazine, and not the
>  rifle, that determines capacity.  Therefore, anyone who
>  possesses a semiautomatic center fire rifle or carbine that
>  accepts a detachable magazine is subject to prosecution so
>  long as a magazine exists with a capacity of twenty rounds or
>  more.  Since the ordinance contains no scienter requirement,
>  an owner's complete lack of knowledge as to the magazine's
>  existence is of no consequence.
>
>  One plaintiff has a hunting rifle that has a detachable
>magazine with a capacity of four rounds.  He has never possessed or
>seen any other magazine which would fit his rifle.  However, his
>rifle would accept a detachable magazine with a capacity of twenty
>rounds or more if one has ever been manufactured.  He "would face
>criminal penalties in the event such a magazine is discovered.  Due
>process demands more than this."
>
>  The second definition of "assault weapon" is "any
>semiautomatic shotgun with a magazine capacity of more than six
>rounds."  Reversing the district court, which upheld this
>provision, the court found it vague:
>
>     Shotgun rounds are available in different lengths.=20
>  Rounds of a short length may cause a shotgun's magazine
>  capacity to exceed six rounds.  Conversely, rounds of a longer
>  length (which may be all the owner possesses or is aware of)
>  will result in a capacity that is less than six rounds.  This
>  provision is a trap for the unwary.  It imposes criminal
>  liability regardless of whether a shotgun owner knows of the
>  existence of shorter length rounds.  Hence, we find this
>  definition unconstitutionally vague.
>
>  The third definition of "assault weapon" includes a
>semiautomatic handgun which is  a modification of a rifle defined
>as an assault weapon or a modification of an automatic firearm.  It
>also includes a semiautomatic handgun originally designed to accept
>a detachable magazine with a capacity of more than twenty rounds.=20
>The first and third of these are vague for the reasons stated above
>regarding a rifle or carbine defined as an assault weapon.  The
>second of these, with its reference to a "modification," is vague
>in that "ordinary consumers cannot be expected to know the
>developmental history of a particular weapon."  "The evidence in
>this case indicates that an average gun owner does not know whether
>or not his weapon is a modification of another weapon."
>
>  The fourth definition of "assault weapon" is any weapon that
>"may be restored" to one of the above.  This is vague not only
>because the above are vague, but also because "the phrase 'may be
>restored' fails to provide sufficient guidance to a person of
>average intelligence as to what is prohibited."  "No standard is
>provided for what  may be restored' means, such as may be restored
>by the person in possession, or may be restored by a master
>gunsmith using the facilities of a fully-equipped machine shop."=20
>(brackets omitted).
>
>  The fifth definition of "assault weapon" is "any part, or
>combination of parts, designed or intended to convert a firearm
>into an assault weapon as defined [above], or any combination of
>parts from which an assault weapon as defined [above] may be
>readily assembled."  This is vague not just because the above
>definitions are vague but also because "'may be readily assembled'
>does not provide sufficient information to enable a person of
>average intelligence to determine whether a particular combination
>of parts is within the ordinance's coverage."
>
>  The court next addressed the City's argument that Springfield
>Armory v. City of Columbus (6th Cir. 1994), which invalidated the
>first assault weapon ban passed by Columbus, suggested that generic
>definitions are appropriate instead of a listing of makes and
>models.  The court responded that such dictum was not meant to
>endorse any specific definitions.
>
>  Columbus also "points out that Cleveland's ordinance served as
>the model for the instant one and that the Ohio Supreme Court
>upheld the validity of Cleveland's ordinance in Arnold v. City of
>Cleveland, 616 N.E.2d 163 (Ohio 1993)."  However, "the Ohio Supreme
>Court in Arnold did not consider a vagueness challenge to the
>ordinance in question."
>
>  Although not raised by the plaintiffs or briefed by the
>parties, the court stated in dictum that the ordinance was not
>invalid under state and federal guarantees concerning the right to
>keep and bear arms.  "Nevertheless, it is well established that due
>process protects our citizens from vague legislation even when that
>legislation regulates conduct which otherwise does not enjoy
>constitutional protection."
>
>  In sum, the Columbus assault weapon ban is nullified by the
>decision based on the grandfather clause being violative of equal
>protection and all of the assault weapon definitions being vague.=20
>The high capacity magazine ban is nullified because its grandfather
>clause is violative of equal protection.
>
>
>--------------------------
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Date: Fri, 17 Jul 1998 12:08:33 -0600
From: "David Sagers" <[e-mail]>
Subject: Fwd: State Constitutions

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ET phoned in with:

>If and when you get the chance, you might try a bit of historical
>research on the subject of firearms law of your State.

>What I'd really care to know is does your State Constitution have a
>firearms specific Right built in

>From [suppressed] on another (closed) list:

    I attach my tentative list of state constitutional provisions,=20
together with any earlier versions that I could find.  I've tried to=20
make it complete.

    The list has yet to be cite-checked, and that some of the dates=20
might be off -- I got a lot of the pre-1908 provisions from Thorpe,=20
and I've noticed that at times the date given in Thorpe is a year off=20
from the official effective date.

    If you find any errors, in the text, the citation, or in the=20
dates, *please* let me know.

    Many thanks to xxxxxxxxxxxxxxxxxxxxxxxx a law student working=20
here at the Law Library, for his research help.  I intend to publish=20
the list as an appendix to my state constitutional right to keep and=20
bear arms article, once that's written . . . .  (I hope to have it=20
done and ready to send out to the law reviews by September, and=20
perhaps even a bit earlier.)



Alabama:  That every citizen has a right to bear arms in defense of

art. I, sec. 23, with "defence" in place of "defense," spelling
changed 1901).

Alaska:  A well-regulated militia being necessary to the security
of a free state, the right of the people to keep and bear arms
shall not be infringed.  The individual right to keep and bear arms
shall not be denied or infringed by the State or a political
subdivision of the State.  Alaska Const. art. I, sec. 19 (first
sentence enacted 1959, second sentence added 1994).

Arizona:  The right of the individual citizen to bear arms in
defense of himself or the State shall not be impaired, but nothing
in this section shall be construed as authorizing individuals or
corporations to organize, maintain, or employ an armed body of men.

Ariz. Const. art. II, sec. 26 (enacted 1912).

Arkansas:  The citizens of this State shall have the right to keep
and bear arms for their common defense.  Ark. Const. art. II, sec. 5
(enacted 1868, art. I, sec. 5).
     1836:  "That the free white men of this State shall have a
right to keep and to bear arms for their common defence."  Art. II,
sec. 21.

California:  No provision.

Colorado:  The right of no person to keep and bear arms in defense
of his home, person and property, or in aid of the civil power when
thereto legally summoned, shall be called in question;  but nothing
herein contained shall be construed to justify the practice of
carrying concealed weapons.  Colo. Const. art. II, sec. 13 (enacted
1876, art. II, sec. 13).

Connecticut:  Every citizen has a right to bear arms in defense of
himself and the state.  Conn. Const. art. I, sec. 15 (enacted 1818,
art. I, sec. 17).  The original 1818 text came from the Mississippi
Constitution of 1817.  See Wesley W. Horton, The Connecticut State
Constitution: A Reference Guide 73.

Delaware:  A person has the right to keep and bear arms for the
defense of self, family, home and State, and for hunting and
recreational use.  Del. Const. art. I, sec. 20 (enacted 1987).

Florida:  (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.  Fla. Const. art. I, sec. 8 (sections (b)-(d) added in
1990).
     1838:  "That the free white men of this State shall have a
right to keep and to bear arms for their common defence."  Art. I,
sec. 21.
     1865:  Clause omitted.
     1868:  "The people shall have the right to bear arms in
defence of themselves and of the lawful authority of the State." =20
Art. I, sec. 22.
     1885:  "The right of the people to bear arms in defence of
themselves and the lawful authority of the State, shall not be
infringed, but the Legislature may prescribe the manner in which
they may be borne."  Art. I, sec. 20.
     1968:  "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."

Georgia:  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.  Ga. Const. art.
I, sec. 1, =B6 VIII (enacted 1877, art. I, sec. XXII).
     1865:  "A well-regulated militia, being necessary to the
security of a free State, the right of the people to keep and bear
arms shall not be infringed."  Art. I, sec. 4.
     1868:  "A well-regulated militia being necessary to the
security of a free people, the right of the people to keep and bear
arms shall not be infringed; but the general assembly shall have
power to prescribe by law the manner in which arms may be borne."=20
Art. I, sec. 14.

Hawaii:  A well regulated militia being necessary to the security
of a free state, the right of the people to keep and bear arms
shall not be infringed.  Haw. Const. art. I, sec. 17 (enacted
1950).

Idaho:  The people have the right to keep and bear arms, which
right shall not be abridged; but this provision shall not prevent
the passage of laws to govern the carrying of weapons concealed on
the person nor prevent passage of legislation providing minimum
sentences for crimes committed while in possession of a firearm,
nor prevent the passage of legislation providing penalties for the
possession of firearms by a convicted felon, nor prevent the
passage of any legislation punishing the use of a firearm.  No law
shall impose licensure, registration or special taxation on the
ownership or possession of firearms or ammunition. Nor shall any
law permit the confiscation of firearms, except those actually used
in the commission of a felony.  Idaho Const. art. I, sec. 11
(enacted 1978).
     1889:  "The people have the right to bear arms for their
security and defense; but the Legislature shall regulate the
exercise of this right by law."  Art. I, sec. 11.

Illinois:  Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be infringed.=20
Ill. Const. art. I, sec. 22 (enacted 1970).

Indiana:  The people shall have a right to bear arms, for the
defense of themselves and the State.  Ind. Const. art. I, sec. 32
(enacted 1851, art. I, sec. 32).
     1816:  That the people have a right to bear arms for the
defense of themselves and the State, and that the military shall be
kept in strict subordination to the civil power.  Art. I, sec. 20.

Iowa:  No provision.

Kansas:  The people have the right to bear arms for their defense
and security; but standing armies, in time of peace, are dangerous
to liberty, and shall not be tolerated, and the military shall be
in strict subordination to the civil power.  Kan. Const. Bill of
Rights, sec. 4 (enacted 1859, art. I, sec. 4).

Kentucky:  All men are, by nature, free and equal, and have certain
inherent and inalienable rights, among which may be reckoned:
     First:  The right of enjoying and defending their lives and
liberties. . . .
     Seventh:  The right to bear arms in defense of themselves and
of the State, subject to the power of the General Assembly to enact
laws to prevent persons from carrying concealed weapons.  Ky.
Const. sec. 1 (enacted 1891).
     1792:  "That the right of the citizens to bear arms in defense
of themselves and the State shall not be questioned."  Art. XII,
sec. 23.
     1799:  "That the rights of the citizens to bear arms in
defense of themselves and the State shall not be questioned."  Art.
X, sec. 23.
     1850:  "That the rights of the citizens to bear arms in
defense of themselves and the State shall not be questioned; but
the General Assembly may pass laws to prevent persons from carrying
concealed arms."  Art. XIII, sec. 25.

Louisiana:  The right of each citizen to keep and bear arms shall
not be abridged, but this provision shall not prevent the passage
of laws to prohibit the carrying of weapons concealed on the
person.  La. Const. art. I, sec. 11 (enacted 1974).
     1879:  "A well regulated militia being necessary to the
security of a free State, the right of the people to keep and bear
arms shall not be abridged.  This shall not prevent the passage of
laws to punish those who carry weapons concealed."  Art. 3.

Maine:  Every citizen has a right to keep and bear arms and this
right shall never be questioned.  Maine Const. art. I, sec. 16
(enacted 1987, after a collective-rights interpretation of the
original provision, see Marshall J. Tinkle, The Maine State
Constitution: A Reference Guide 48).
     1819:  "Every citizen has a right to keep and bear arms for
the common defence; and this right shall never be questioned."=20
Art. I, sec. 16.

Maryland:  No provision.

Massachusetts:  The people have a right to keep and to bear arms
for the common defence.  And as, in time of peace, armies are
dangerous to liberty, they ought not to be maintained without the
consent of the legislature; and the military power shall always be
held in an exact subordination to the civil authority, and be
governed by it.  Mass. Const. pt. 1, art. 17 (enacted 1780).

Michigan:  Every person has a right to keep and bear arms for the
defense of himself and the state.  Mich. Const. art. I, sec. 6
(enacted 1835).

Minnesota:  No provision.

Mississippi:  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.  Miss. Const. art. III, sec. 12 (enacted 1890,
art. 3, sec. 12).
     1817:  "Every citizen has a right to bear arms, in defence of
himself and the State."  Art. I, sec. 23.
     1832:  "Every citizen has a right to bear arms in defence of
himself and of the State."  Art. I, sec. 23.
     1868:  "All persons shall have a right to keep and bear arms
for their defence."  Art. I, sec. 15.

Missouri:  That the right of every citizen to keep and bear arms in
defense of his home, person and property, or when lawfully summoned
in aid of the civil power, shall not be questioned; but this shall
not justify the wearing of concealed weapons.  Missouri Const. art.
I, sec. 23 (enacted 1945).
     1820:  "That the people have the right peaceably to assemble
for their common good, and to apply to those vested with the powers
of government for redress of grievances by petition or remonstrance;=20
and that their right to bear arms in defence of themselves and of the=20
State cannot be questioned."  Art. XIII, sec. 3.
     1865:  Same as above, but with "the lawful authority of the
State" instead of "the State."  Art. I, sec. 8.
     1875:  "That the right of no citizen to keep and bear arms in
defense of his home, person and property, or in aid of the civil
power, when thereto legally summoned, shall be called into
question; but nothing herein contained is intended to justify the
practice of wearing concealed weapons."  Art. II, sec. 17.

Montana:  The right of any person to keep or bear arms in defense
of his own home, person, and property, or in aid of the civil power
when thereto legally summoned, shall not be called in question, but
nothing herein contained shall be held to permit the carrying of
concealed weapons.  Mont. Const. art. II, sec. 12 (enacted 1889).

Nebraska:  All persons are by nature free and independent, and have
certain inherent and inalienable rights; among these are life,
liberty, the pursuit of happiness, and the right to keep and bear
arms for security or defense of self, family, home, and others, and
for lawful common defense, hunting, recreational use, and all other
lawful purposes, and such rights shall not be denied or infringed
by the state or any subdivision thereof.  To secure these rights,
and the protection of property, governments are instituted among
people, deriving their just powers from the consent of the
governed.  Neb. Const. art. I, sec. 1 (right to keep and bear arms
enacted 1988).

Nevada:  Every citizen has the right to keep and bear arms for
security and defense, for lawful hunting and recreational use and
for other lawful purposes.  Nev. Const. art. I, sec. 11(1) (enacted
1982).

New Hampshire:  All persons have the right to keep and bear arms in
defense of themselves, their families, their property and the
state.  N.H. Const pt. 1, art. 2-a (enacted 1982).

New Jersey:  No provision.

New Mexico:  No law shall abridge the right of the citizen to keep
and bear arms for security and defense, for lawful hunting and
recreational use and for other lawful purposes, but nothing herein
shall be held to permit the carrying of concealed weapons.  No
municipality or county shall regulate, in any way, an incident of
the right to keep and bear arms.  N.M. Const. Art. II, sec. 6
(first sentence enacted in 1971, second sentence added 1986).
     1912:  "The people have the right to bear arms for their
security and defense, but nothing herein shall be held to permit
the carrying of concealed weapons."

New York:  No provision.

North Carolina:  A well regulated militia being necessary to the
security of a free State, the right of the people to keep and bear
arms shall not be infringed; and, as standing armies in time of
peace are dangerous to liberty, they shall not be maintained, and
the military shall be kept under strict subordination to, and
governed by, the civil power.  Nothing herein shall justify the
practice of carrying concealed weapons, or prevent the General
Assembly from enacting penal statutes against that practice.  N.C.
Const. Art. 1, sec. 30 (enacted 1971).
     1776:  "That the people have a right to bear arms, for the
defence of the State; and, as standing armies, in time of peace,
are dangerous to liberty, they ought not to be kept up; and that
the military should be kept under strict subordination to, and
governed by, the civil power."  Bill of Rights, sec. XVII.
     1868:  "A well-regulated militia being necessary to the
security of a free State, the right of the people to keep and bear
arms shall not be infringed; and, as standing armies, in time of
peace, are dangerous to liberty, they ought not to be kept up, and
the military should be kept under strict subordination to, and
governed by, the civil power."  Art. I, sec. 24.
     1875:  Same as 1868, but added "Nothing herein contained shall
justify the practice of carrying concealed weapons, or prevent the
Legislature from enacting penal statutes against said practice."

North Dakota:  All individuals are by nature equally free and
independent and have certain inalienable rights, among which are
those of enjoying and defending life and liberty; acquiring,
possessing and protecting property and reputation; pursuing and
obtaining safety and happiness; and to keep and bear arms for the
defense of their person, family, property, and the state, and for
lawful hunting, recreational, and other lawful purposes, which
shall not be infringed.  N.D. Const. Art. I, sec. 1 (right to keep
and bear arms enacted 1984).

Ohio:  The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to
liberty, and shall not be kept up; and the military shall be in
strict subordination to the civil power.  Ohio Const. Art. I, sec.
4 (enacted 1851).
     1802:  "That the people have a right to bear arms for the
defence of themselves and the State; and as standing armies, in
time of peace, are dangerous to liberty, they shall not be kept up,
and that the military shall be kept under strict subordination to
the civil power."  Art. VIII, sec. 20.

Oklahoma:  The right of a citizen to keep and bear arms in defense
of his home, person, or property, or in aid of the civil power,
when thereunto legally summoned, shall never be prohibited; but
nothing herein contained shall prevent the Legislature from
regulating the carrying of weapons.  Okla. Const. art. II, sec. 26
(enacted 1907).

Oregon:  The people shall have the right to bear arms for the
defence of themselves, and the State, but the Military shall be
kept in strict subordination to the civil power[.]  Or. Const. Art.
I, sec. 27 (enacted 1857, art. I, sec. 28).

Pennsylvania:  The right of the citizens to bear arms in defence of
themselves and the State shall not be questioned.  Penn. Const.
Art. 1, sec. 21 (enacted 1790, art. IX, sec. 21).
     1776:  That the people have a right to bear arms for the
defence of themselves and the state; and as standing armies in the
time of peace are dangerous to liberty, they ought not to be kept
up; And that the military should be kept under strict
subordination, to, and governed by, the civil power.  Declaration
of Rights, cl. XIII.

Rhode Island:  The right of the people to keep and bear arms shall
not be infringed.  R.I. Const. art. I, sec. 22 (enacted 1842).

South Carolina:  A well regulated militia being necessary to the
security of a free State, the right of the people to keep and bear
arms shall not be infringed.  As, in times of peace, armies are
dangerous to liberty, they shall not be maintained without the
consent of the General Assembly.  The military power of the State
shall always be held in subordination to the civil authority and be
governed by it.  S.C. Const. art. 1, sec. 20 (enacted 1895).
     1868:  "The people have a right to keep and bear arms for the
common defence.  As, in times of peace . . . ."  Art. I, sec. 28.

South Dakota:  The right of the citizens to bear arms in defense of
themselves and the state shall not be denied.  S.D. Const. art. VI,
sec. 24 (enacted 1889).

Tennessee:  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.  Tenn. Const. art. I, sec. 26 (enacted
1870).
     1796:  "That the freemen of this State have a right to keep
and bear arms for their common defence."  Art. XI, sec. 26.
     1834:  "That the freemen of this State have a right to keep
and bear arms for their common defence."  Art. I, sec. 26.

Texas:  Every citizen shall have the right to keep and bear arms in
the lawful defense of himself or the State; but the Legislature
shall have power, by law, to regulate the wearing of arms, with a
view to prevent crime.  Tex. Const. art. I, sec. 23 (enacted 1876).
     1836:  "Every citizen shall have the right to bear arms in
defence of himself and the republic.  The military shall at all
times and in all cases be subordinate to the civil power."=20
Declaration of Rights, cl. 14.
     1845:  "Every citizen shall have the right to keep and bear
arms in lawful defence of himself or the State."  Art. I, sec. 13.
     1868:  "Every person shall have the right to keep and bear
arms in the lawful defence of himself or the State, under such
regulations as the legislature may prescribe."  Art. I, sec. 13.

Utah:  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.  Utah Const. art. I, sec. 6 (enacted 1984).
     1896:  "The people have the right to bear arms for their
security and defense, but the legislature may regulate the exercise
of this right by law."

Vermont:  That the people have a right to bear arms for the defence
of themselves and the State"and as standing armies in time of peace
are dangerous to liberty, they ought not to be kept up; and that
the military should be kept under strict subordination to and
governed by the civil power.  Vt. Const. ch. I, art. 16 (enacted
1777, ch. I, art. 15).

Virginia:  That a well regulated militia, composed of the body of
the people, trained to arms, is the proper, natural, and safe
defense of a free state, therefore, the right of the people to keep
and bear arms shall not be infringed; that standing armies, in time
of peace, should be avoided as dangerous to liberty; and that in
all cases the military should be under strict subordination to, and
governed by, the civil power.  Va. Const. art. I, sec. 13 (enacted
1776 without explicit right to keep and bear arms; "therefore, the
right to keep and bear arms shall not be infringed" added in 1971).

Washington:  The right of the individual citizen to bear arms in
defense of himself, or the state, shall not be impaired, but
nothing in this section shall be construed as authorizing
individuals or corporations to organize, maintain or employ an
armed body of men.  Wash. Const. art. I, sec. 24 (enacted 1889).

West Virginia:  A person has the right to keep and bear arms for
the defense of self, family, home and state, and for lawful hunting
and recreational use.  W. Va. Const. art. III, sec. 22 (enacted
1986).

Wisconsin:  No provision.

Wyoming:  The right of citizens to bear arms in defense of
themselves and of the state shall not be denied.  Wyo. Const. art.
I, sec. 24 (enacted 1889).





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------------------------------

Date: Fri, 17 Jul 1998 12:21:12 -0600
From: [e-mail] (Charles Hardy)
Subject: Re: Fwd: A Bit of Good NewsGSL> Halbrook

IOW, had the city taken the time to write a nice clear ordinance, they
could have acomplished exactly what they wanted to with this
ordinance.

Next year they will simply write a more clear ordinance which will
stand unless someone comes up with the money and the energy to fight
it.

When will the NRA and other pro-gun groups realize that so long as the
courts do not recognize an individual right to own and carry guns, on
par with the individual right to speech or worship or the press, this
is a losing game.  Gun Control is unconstitutional no matter how
"fairly" it is applied or clearly it is worded.

Court battles need to be waged on the 2nd amendment and various State
Constitutional RKBA clauses, IMNSHO.

On Fri, 17 Jul 1998, "David Sagers" <[e-mail]> posted:

>>  Although not raised by the plaintiffs or briefed by the
>>parties, the court stated in dictum that the ordinance was not
>>invalid under state and federal guarantees concerning the right to
>>keep and bear arms.  "Nevertheless, it is well established that due
>>process protects our citizens from vague legislation even when that
>>legislation regulates conduct which otherwise does not enjoy
>>constitutional protection."
>>
>>  In sum, the Columbus assault weapon ban is nullified by the
>>decision based on the grandfather clause being violative of equal
>>protection and all of the assault weapon definitions being vague.=20
>>The high capacity magazine ban is nullified because its grandfather
>>clause is violative of equal protection.
- --

Charles C. Hardy        | If my employer has an opinion on
<[e-mail]>            | these things I'm fairly certain
801.588.7200 (work)        | I'm not the one he'd have express it.

"The difficulty here has been to persuade the citizens to keep arms, not
 to prevent them from being employed for violent purposes." -- Dwight
"Travels in New-England"

- -

------------------------------

Date: Fri, 17 Jul 1998 12:59:10 -0600
From: [e-mail] (Charles Hardy)
Subject: Re: Fwd: A Bit of Good NewsGSL> Halbrook

On Fri, 17 Jul 1998, "David Sagers" <[e-mail]> posted:

>>             "ASSAULT WEAPON" BAN IN COLUMBUS, OHIO,
>>                      RULED UNCONSTITUTIONAL
>>     The "assault weapon" and high capacity magazine bans in
>>Columbus, Ohio, have been declared unconstitutional by a federal
>>appellate court.  This decision nullifies similar bans with
>>identical language, such as that in Cleveland and other cities.
>>

[...]

>>  Although not raised by the plaintiffs or briefed by the
>>parties, the court stated in dictum that the ordinance was not
>>invalid under state and federal guarantees concerning the right to
>>keep and bear arms.  "Nevertheless, it is well established that due
>>process protects our citizens from vague legislation even when that
>>legislation regulates conduct which otherwise does not enjoy
>>constitutional protection."

Apprantly the Ohio State Constitution contains:

Ohio:  The people have the right to bear arms for their defense and
security; but standing armies, in time of peace, are dangerous to
liberty, and shall not be kept up; and the military shall be in
strict subordination to the civil power.  Ohio Const. Art. I, sec.
4 (enacted 1851).

What are judges smoking these days?  If I have a right to bear (carry)
guns for my defense and security in Ohio, then how can they say that
laws prohibiting the ownership of the guns best designed for providing
defense and security do not vioulate the State Constitution?

>>
>>  In sum, the Columbus assault weapon ban is nullified by the
>>decision based on the grandfather clause being violative of equal
>>protection and all of the assault weapon definitions being vague.=20
>>The high capacity magazine ban is nullified because its grandfather
>>clause is violative of equal protection.

- --

Charles C. Hardy        | If my employer has an opinion on
<[e-mail]>            | these things I'm fairly certain
801.588.7200 (work)        | I'm not the one he'd have express it.

"As civil rulers, not having their duty to the people duly before them,
 may attempt to tyrannize, ... the people are confirmed by the next
 article in their right to keep and bear arms." -- Tench Coxe in "Remarks
 on the First Part of the Amendments to the Federal Constitution",
 Federal Gazette, June 18, 1789

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End of utah-firearms-digest V2 #87
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