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Message to John Pierce in reference to his opinon on proposed amendment no. 3, Nov. 4

49er

Regular Member
Joined
Nov 27, 2008
Messages
156
Location
Central Alabama
John Pierce,

I read your answer to the questions you received about proposed amendment No. 3 which would change the current language of our Declaration of Rights. I have a couple of questions of my own to ask you, since you have weighed in favor of the changes.

1. The Declaration of Rights in our constitution is unique in that it does not delegate authority to our legislature to regulate bearing arms for defense. Two different ordinances were introduced during the Constitutional Convention of 1901 that would have delegated that authority, but both were rejected:
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REJECTED:
@ 172
Day 7
Ordinance No. 87, by Mr. Ferguson:
An Ordinance concerning the right of citizens to bear arms.
Be it ordained by the people of Alabama in Convention assembled, That in lieu of Section 27 of Article I. of the Constitution of 1875, the following provision shall be enacted:
Section ---. That every citizen has a right to bear arms in defense of himself and the State, but the General Assembly shall have the power to regulate the bearing of small arms, shall define the same, and shall pass laws requiring a license for the bearing of such small arms.
Note--For the benefit of the Committee the following authorities are cited:
Miller vs. Texas, 153 U. S. P., 533, and authorities there cited: 92 U. S. P. 542 ; 116 U. S. P. 252.
Referred to Committee on Preamble and bill of Rights.

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REJECTED:

@ 215-216

Day 8
Ordinance No. 131, by Mr. Murphree:
Relates to duelling, concealed pistols and other deadly weapons.
Be it ordained by the people of Alabama in convention assembled, That
Section 47, Article IV of the Constitution of Alabama, be and is hereby amended so as to read as follows:
The General Assembly shall pass such penal laws as they may deem expedient to suppress the evil practice of dueling and carrying pistols and other deadly weapons concealed.


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2. Unlike the constitutions of every state that touches the borders of Alabama, our constitution expressly forbids infringements of any kind on our right to bear arms for defense:

Notice the difference in the language of Section 26 and Section 36 of our Constitution of Alabama 1901compared to that found in other constitutions:
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Quote:
Constitution of Alabama 1901
Article I, Declaration of Rights
That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 26 Right to bear arms.
That every citizen has a right to bear arms in defense of himself and the state.

SECTION 36 Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.


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Quote:
TENNESSEE CONSTITUTION - ARTICLE I. DECLARATION OF RIGHTS
§ 26. Weapons; right to bear arms
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.

Quote:
CONSTITUTION OF THE STATE OF GEORGIA
ARTICLE I.
BILL OF RIGHTS
SECTION I.
RIGHTS OF PERSONS
Paragraph VIII. Arms, right to keep and bear. 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.

Quote:
THE CONSTITUTION OF THE STATE OF MISSISSIPPI
ARTICLE 3 BILL OF RIGHTS
SECTION 12. Right to bear arms.
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.

Quote:
Constitution of Florida, Article I
Declaration of Rights
SECTION 8. Right to bear arms.–
(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.
History.–Am. C.S. for S.J.R. 43, 1989; adopted 1990.



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“Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”
US Supreme Court Justice Louis Brandeis dissenting
Olmstead v. United States, 277 US 438 - Supreme Court 1928

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3. Regardless of what the Alabama Court of Criminal Appeals rules in Hyde v Bham that you cited in your answer, current case law from the Alabama Supreme Court indicates that our state’s court of last resort has a different opinion of the rights enumerated in our Declaration of Rights.
[BTW: I have researched the cases that the Court of Criminal Appeals relied on in Hyde, and those cases did not raise the question of the constitutionality of gun control statutes in our code of laws]

Current Declaration of Rights case law from the Alabama Supreme Court:

In 2009: “... As stated in § 36, Ala. Const. 1901, quoted above, the rights enumerated in Alabama's Bill of Rights are not the only rights retained by the people, but "everything in this declaration of rights is excepted from the general powers of government and shall forever remain inviolate." Ala. Const.1901, § 36. The ban on impairing the obligations of contracts provided in Ala. Const.1901, § 22, is obviously one that shall forever remain inviolate. ...
Shoney's LLC v. Mac East, LLC, 27 So. 3d 1216 - Ala: Supreme Court 2009


In 2010: “... We note that "ection 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it." Ex parte Cranman, 792 So.2d 392, 401 (Ala. 2000). Sections 1 through 35 of Article I set out basic and fundamental rights guaranteed to all Alabamians, and § 36 provides that no branch of government has the authority to impair or deny those rights. Section 6 ensures that no Alabamian will be deprived of life, liberty, or property without due process of law. ...
1568 Montgomery Hwy. v. City of Hoover, 45 So. 3d 319 - Ala: Supreme Court 2010

In 2012: “ … Article I, § 14, Const. of Ala. 1901, states that 'the State of Alabama shall never be made a defendant in any court of law or equity. This constitutional provision `has been described as a "nearly impregnable" and "almost invincible" "wall" that provides the State an unwaivable, absolute immunity from suit in any court.' Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872 (Ala.2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala. 1994)).”
Ex parte Burnell, 90 So. 3d 708 - Ala: Supreme Court 2012


HOUSTON, Justice (concurring in the result).
I do not agree with the quote from Slagle v. Parker, 370 So.2d 947, 949 (Ala.), appeal dismissed, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17 (1979), that "ince the right to bring an action for wrongful death is a product of the legislature, it can be modified, limited, or repealed as the legislature sees fit." I believe that §§ 1 and 35, Alabama Constitution of 1901, which provide that right to life is a fundamental right, combined with that portion of § 13, Alabama Constitution of 1901, which provides "that every person, for any injury done him, in his ... person ... shall have a remedy by due process of law," create a constitutional right of action for wrongful death that is excepted out of the general powers of government by § 36, Alabama Constitution of 1901.
I agree with all other portions of Justice Maddox's opinion and with the result reached.
SHORES, J., concurs.
Northeast Utilities v. PITTMAN TRUCKING, 595 So. 2d 1351 - Ala: Supreme Court 1992


… and this as an added note:

"State courts, in determining the scope of rights guaranteed by their own constitutions,... may, in fact, provide more protection for private rights than the United States Constitution requires." 592 So.2d at 170. See also Ex parte Boykin, [Ms. 1921336, Oct. 8, 1993], 1993 WL 394750 (Ala. 1993) ("the United States Supreme Court has recognized that a state may confer procedural protections of liberty interests that extend beyond those minimally required by the Constitution of the United States"); Ex parte Love, 513 So.2d 24, 30 (Ala.1987); Mills v. Rogers, 457 U.S. 291, 300, 102 S.Ct. 2442, 2449, 73 L.Ed.2d 16 (1982)…”
Brooks v. Hobbie, 631 So. 2d 883 - Ala: Supreme Court 1993)


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I certainly hope you will reconsider your recommendation to change our Declaration of Rights to add the words “any restrictions” to its language.

More from the Alabama Supreme Court on the subject of “fundamental rights” and “strict scrutiny”:

The Alabama Supreme Court ALREADY applies “strict scrutiny” to restrictions on fundamental rights:
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“ …State action that limits a fundamental right is generally subject to strict scrutiny. Troxel, 530 U.S. at 80, 120 S.Ct. 2054 (Thomas, J., concurring in judgment); Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988) ("[C]lassifications affecting fundamental rights ... are given the most exacting scrutiny."); Graham v. Richardson, 403 U.S. 365, 375, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) …”


Ex parte ERG, 73 So. 3d 634 - Ala: Supreme Court 2011

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The Alabama Supreme Court ALREADY views the rights enumerated in our Declaration of Rights as being fundamental rights:

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Sections 1 through 35 of Article I set out basic and fundamental rights guaranteed to all Alabamians, and § 36 provides that no branch of government has the authority to impair or deny those rights.

1568 Montgomery Hwy. v. City of Hoover, 45 So. 3d 319 - Ala: Supreme Court 2010


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I would like to hear from you if you disagree with my analysis and think I am wrong to vote “NO” to the proposed change to our Declaration of Rights given the above information.








Sincerely,

Eddie Maxwell
 
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49er

Regular Member
Joined
Nov 27, 2008
Messages
156
Location
Central Alabama
This is the result of my research and my conclusions.

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Mr. Maxwell:

Representative Mike Jones requested that I provide copies of Alabama cases holding that the constitutional guarantee contained in Sec. 26 providing for the right of citizen to bear arms in defense of himself and the state is subject to reasonable regulation by the state under its police power. The following cases are attached for your review:

1. Jackson v. State, 68 So.2d 850 (Ala. App. 1953).
2. Mason v. State, 103 So.2d 337 (Ala. App. 1956).
3. Hyde v. City of Birmingham, 392 So.2d 1226 (Ala. Cr. App. 1980).

If you have any questions or need any additional information, please do not hesitate to contact me.

John E. Treadwell
State of Alabama
Legislative Reference Service
11 South Union Street, Suite 613
Montgomery, Alabama 36130
Office: 334.242.7560
Facsimile: 334.242.4358
jtreadwell@lrs.state.al.us






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Jackson v. State, 68 So. 2d 850 - Ala: Court of Appeals 1953

Issues raised:

The grounds of demurrer insisted upon challenge the sufficiency of the indictment, and assail the constitutionality of the statute under which the indictment is found. Appellant's insistence is:

(1) the defendant is not apprised of the nature or character of the accusation against him, as required by Section 6 of the Constitution of Alabama of 1901, for that, he cannot know whether he is charged with a felony or misdemeanor;
(2) Section 186(a), Title 14, Code 1940, as amended, does not prescribe any legal punishment, for the reason that it does not prescribe the place of imprisonment for a person convicted under said statute;
(3) the inclusion of larceny in the definition of the term "crime of violence" set out in Section 172, Title 14, Code, supra, violates the requirement of reasonableness in classification required of legislation enacted under the police power, because larceny is not a crime of violence.



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Looks like there was no challenge to an unconstitutional restriction on the right to keep and bear arms for defense under Sect. 26 and 36 in Jackson.

Appealed to Alabama Supreme Court for writ of certiorari:

Jackson v. State, 68 So. 2d 853 - Ala: Supreme Court 1953
Petition of Henry Palmer Jackson for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Jackson v. State, 68 So.2d 850.
Writ denied.


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Mason v. State, 103 So. 2d 337 - Ala: Court of Appeals 1956
The sole question raised on this appeal by the record and evidence is whether appellant's possession of a pistol, after having been convicted of a crime of violence, is illegal in view of the pardon granted him.

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That is not a challenge of the constitutionality of restricting our right to bear arms for defense, so the issue was not raised.

Appealed to Alabama Supreme Court:
Mason v. State, 103 So. 2d 341 - Ala: Supreme Court 1958

On a careful and studious consideration we are of the opinion the judgment of the Court of Appeals should be affirmed. So ordered.
Affirmed.

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The dissenting opinion discussed the issue that was raised. It was not a challenge to any statute on the grounds that it was an infringement on our right to bear arms for defense …

"We ought not to attribute to the legislature an intent to usurp the power of the governor contrary to the Constitution, and, therefore, ought not to construe the Act of 1936 as applying to convicts who had been pardoned unconditionally by the governor. Prior to 1939, § 174, Title 14, could not apply to a convict who had received an unconditional pardon."


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Hyde v. City of Birmingham, 392 So. 2d 1226 - Ala: Court of Criminal Appeals 1980

It is well-settled and "universally recognized," however, that this right of a citizen to bear arms in defense of himself and the state is subject to reasonable regulation under the police powers of the state. Mason v. State, 39 Ala.App. 1, 103 So.2d 337 (1956), affirmed, 267 Ala. 507, 103 So.2d 341, cert. denied, 358 U.S. 934, 79 S.Ct. 323, 3 L.Ed.2d 306; Jackson v. State, 37 Ala. App. 335, 68 So.2d 850 (1953).

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Well settled? I don’t think so. See the cases cited. The issue was not raised in those cases.
 
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49er

Regular Member
Joined
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Messages
156
Location
Central Alabama
Current language v proposed language of the amendment

AS PROPOSED by Amendment 3 on the November ballot:


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Article I, Section 26

(a) Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.

(b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.



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CURRENT LANGUAGE in our Declaration of Rights:


Constitution of Alabama 1901

Article 1 Declaration of Rights.

That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 26
Right to bear arms.
That every citizen has a right to bear arms in defense of himself and the state.

SECTION 36
Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.
 

davidmcbeth

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..
(b) No citizen shall be compelled by any international treaty or international law to take an action that prohibits, limits, or otherwise interferes with his or her fundamental right to keep and bear arms in defense of himself or herself and the state, if such treaty or law, or its adoption, violates the United States Constitution.


If it violates the US Const. then it would void anyways...the purpose of this is questionable...
and i says "compelled" .. so they can do this of their own free will?

A quirky section...

Of course, no law passed regarding gun rights and our RKBA means anything .. in theory

And all these levels of scrutiny were made up concepts - made up by lawyers, not the people. But the people don't complain about the courts using them either...
 
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John Pierce

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David,

My answer is simple ....

1) We all wish that courts treated gun rights as the inviolate rights we know they should be.

2) They don't and they won't until one of us finds a genie and asks her for a wish.

3) Until then, we have to deal with the system as-is and make it better.

4) As you see in the Hyde decision above, the Alabama courts are currently using a version of intermediate scrutiny.

5) Strict scrutiny would be a far better standard of review.

6) This amendment gives you that standard of review.

7) This amendment also declares the RKBA to be a fundamental right in case there was any question.

I simply can't understand why anyone would oppose such a massive win??????

I mean ... if you got to go on a date with a supermodel would you tell her no because her eyeliner was smudged???

We all need to keep the ball moving forward. Not sit in a circle and complain about the fact that the goalpost is so far away!!!
 

John Pierce

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Messages
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I should add that some of the comments I have seen say something like "If we get an anti-gun judge then they will use this as a means to protect gun control laws."

My answer ... "Under Hyde (which is still good law), any anti-gun judge (with the full support of precedent) could do just that TODAY!!! However, if the amendment passes then Hyde is no longer good law and they MUST use strict scrutiny when evaluating a law and failure to do so would give good grounds for appeal."
 
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OC for ME

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It is not correcting a errant judge's decision, it is the removal of that judge(s) who blatantly rules contrary to the federal and possibly state constitution's clear and unambiguous language.

What is so difficult to understand regarding "shall not be infringed."
 

John Pierce

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No court in the country is going to rule that any right is absolute. They just aren't. Therefore, they need a yardstick by which to judge the validity of laws.

'Level of review' IS that yardstick and strict scrutiny is the gold-standard if you want to protect a given right.

In law school we are taught that strict scrutiny is 'strict in name but fatal in fact'. In other words, most laws cannot survive strict scrutiny.

I know that the legal system seems horribly tangled in tests and jargon but there it is.

Strict scrutiny would damn near be a 100% win. I don't know what else to say. Vote as you wish but if it fails the next time a gun rights case comes before the Alabama Supreme Court, don't be surprised if these words are cited:

“… The constitution in declaring that, ‘Every citizen has the right to bear arms in defence of himself and the State,’ has neither expressly nor by implication, denied to the Legislature, the right to enact laws in regard to the manner in which arms shall be borne. The right guaranteed to the citizen, is not to bear arms upon all occasions and in all places, but merely ‘in defence of himself and the State.’ The terms in which this provision is phrased seem to us, necessarily to leave with the Legislature the authority to adopt such regulations of police, as may be dictated by the safety of the people and the advancement of public morals….”

Your move. I don't live there. I was just trying to answer a question for a friend.


John


It is not correcting a errant judge's decision, it is the removal of that judge(s) who blatantly rules contrary to the federal and possibly state constitution's clear and unambiguous language.

What is so difficult to understand regarding "shall not be infringed."
 

Grapeshot

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We too often discuss matters in terms of how we think they should be and that anything less is a major fail.

That isn't the way things are in the light of day (again forget should be) and you walk into that courtroom.

I suggest that we need all of the tools we can get and the stronger and more specifically worded the laws are, the better off we shall be.

Hell yes, strict scrutiny.
 

49er

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Joined
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Messages
156
Location
Central Alabama
My question is why would our court of last resort, (not the Criminal Court of Appeals in Hyde) break precedent and treat Section 26 any differently than the other sections of our Declaration of Rights? They certainly treated some of those rights as near absolute as a court can:



xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Current Declaration of Rights case law from the Alabama Supreme Court:


In 2009: “... As stated in § 36, Ala. Const. 1901, quoted above, the rights enumerated in Alabama's Bill of Rights are not the only rights retained by the people, but "everything in this declaration of rights is excepted from the general powers of government and shall forever remain inviolate." Ala. Const.1901, § 36. The ban on impairing the obligations of contracts provided in Ala. Const.1901, § 22, is obviously one that shall forever remain inviolate. ...
Shoney's LLC v. Mac East, LLC, 27 So. 3d 1216 - Ala: Supreme Court 2009


In 2010: “... We note that "ection 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it." Ex parte Cranman, 792 So.2d 392, 401 (Ala. 2000). Sections 1 through 35 of Article I set out basic and fundamental rights guaranteed to all Alabamians, and § 36 provides that no branch of government has the authority to impair or deny those rights. Section 6 ensures that no Alabamian will be deprived of life, liberty, or property without due process of law. ...
1568 Montgomery Hwy. v. City of Hoover, 45 So. 3d 319 - Ala: Supreme Court 2010

In 2012: “ … Article I, § 14, Const. of Ala. 1901, states that 'the State of Alabama shall never be made a defendant in any court of law or equity. This constitutional provision `has been described as a "nearly impregnable" and "almost invincible" "wall" that provides the State an unwaivable, absolute immunity from suit in any court.' Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872 (Ala.2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala. 1994)).”
Ex parte Burnell, 90 So. 3d 708 - Ala: Supreme Court 2012


HOUSTON, Justice (concurring in the result).
I do not agree with the quote from Slagle v. Parker, 370 So.2d 947, 949 (Ala.), appeal dismissed, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17 (1979), that "ince the right to bring an action for wrongful death is a product of the legislature, it can be modified, limited, or repealed as the legislature sees fit." I believe that §§ 1 and 35, Alabama Constitution of 1901, which provide that right to life is a fundamental right, combined with that portion of § 13, Alabama Constitution of 1901, which provides "that every person, for any injury done him, in his ... person ... shall have a remedy by due process of law," create a constitutional right of action for wrongful death that is excepted out of the general powers of government by § 36, Alabama Constitution of 1901.
I agree with all other portions of Justice Maddox's opinion and with the result reached.
SHORES, J., concurs.
Northeast Utilities v. PITTMAN TRUCKING, 595 So. 2d 1351 - Ala: Supreme Court 1992
 
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John Pierce

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Staff member
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Messages
1,777
If the Supreme Court is so eager to treat the RKBA as inviolate then I have a few questions:

- Do you have ANY state laws regarding firearms?
- How are they enforceable?
- Why didn't the lawyer in Hyde just appeal to the Supreme Court for his 'inviolate' stamp?


John


My question is why would our court of last resort, (not the Criminal Court of Appeals in Hyde) break precedent and treat Section 26 any differently than the other sections of our Declaration of Rights? They certainly treated some of those rights as near absolute as a court can:



xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Current Declaration of Rights case law from the Alabama Supreme Court:


In 2009: “... As stated in § 36, Ala. Const. 1901, quoted above, the rights enumerated in Alabama's Bill of Rights are not the only rights retained by the people, but "everything in this declaration of rights is excepted from the general powers of government and shall forever remain inviolate." Ala. Const.1901, § 36. The ban on impairing the obligations of contracts provided in Ala. Const.1901, § 22, is obviously one that shall forever remain inviolate. ...
Shoney's LLC v. Mac East, LLC, 27 So. 3d 1216 - Ala: Supreme Court 2009


In 2010: “... We note that "ection 36 erects a firewall between the Declaration of Rights that precedes it and the general powers of government, including the authority to exercise judicial power, that follow it." Ex parte Cranman, 792 So.2d 392, 401 (Ala. 2000). Sections 1 through 35 of Article I set out basic and fundamental rights guaranteed to all Alabamians, and § 36 provides that no branch of government has the authority to impair or deny those rights. Section 6 ensures that no Alabamian will be deprived of life, liberty, or property without due process of law. ...
1568 Montgomery Hwy. v. City of Hoover, 45 So. 3d 319 - Ala: Supreme Court 2010

In 2012: “ … Article I, § 14, Const. of Ala. 1901, states that 'the State of Alabama shall never be made a defendant in any court of law or equity. This constitutional provision `has been described as a "nearly impregnable" and "almost invincible" "wall" that provides the State an unwaivable, absolute immunity from suit in any court.' Ex parte Town of Lowndesboro, 950 So.2d 1203, 1206 (Ala.2006) (quoting Alabama Agric. & Mech. Univ. v. Jones, 895 So.2d 867, 872 (Ala.2004); Patterson v. Gladwin Corp., 835 So.2d 137, 142 (Ala.2002); and Alabama State Docks v. Saxon, 631 So.2d 943, 946 (Ala. 1994)).”
Ex parte Burnell, 90 So. 3d 708 - Ala: Supreme Court 2012


HOUSTON, Justice (concurring in the result).
I do not agree with the quote from Slagle v. Parker, 370 So.2d 947, 949 (Ala.), appeal dismissed, 444 U.S. 804, 100 S.Ct. 24, 62 L.Ed.2d 17 (1979), that "ince the right to bring an action for wrongful death is a product of the legislature, it can be modified, limited, or repealed as the legislature sees fit." I believe that §§ 1 and 35, Alabama Constitution of 1901, which provide that right to life is a fundamental right, combined with that portion of § 13, Alabama Constitution of 1901, which provides "that every person, for any injury done him, in his ... person ... shall have a remedy by due process of law," create a constitutional right of action for wrongful death that is excepted out of the general powers of government by § 36, Alabama Constitution of 1901.
I agree with all other portions of Justice Maddox's opinion and with the result reached.
SHORES, J., concurs.
Northeast Utilities v. PITTMAN TRUCKING, 595 So. 2d 1351 - Ala: Supreme Court 1992
 

49er

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Messages
156
Location
Central Alabama
38 page gun control bill passed at the same time as proposal for Amend. 3

The same legislators who passed the bill proposing this change to our Declaration of Rights were in the process of passing a 38 page gun control bill during the very same session of the legislature.


View their 38 pages of gun control at the following link and then tell me they are serious about protecting our right to bear arms for defense that our Declaration of Rights declared to be "excepted out of the general powers of government and shall forever remain inviolate":

Act 2013-283
http://arc-sos.state.al.us/PAC/SOSACPDF.001/A0009908.PDF
 
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49er

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Joined
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Messages
156
Location
Central Alabama
If the Supreme Court is so eager to treat the RKBA as inviolate then I have a few questions:

- Do you have ANY state laws regarding firearms?
- How are they enforceable?
- Why didn't the lawyer in Hyde just appeal to the Supreme Court for his 'inviolate' stamp?


John



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- There are laws regarding bearing arms for defense in the Code of Alabama 1975. To my knowledge, NONE of them have been challenged on purely constitutional grounds to our court of last resort.

- They are enforced by only those who violate their oath to support our consitutions.

- I cannot answer for the lawyer in Hyde. The Court was deeply divided, and Section 36 of our Declaration of Rights was never even mentioned. Lawyers and judges don't always get it right. Our court of last resort frequently overturns opinions of the Court of Criminal Appeals when given the opportunity.


EXAMPLE:

EX PARTE PATE, Ala: Supreme Court 2013

http://scholar.google.com/scholar_c...6332&q="Luther+Stancel+Pate"&hl=en&as_sdt=206
 

49er

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Messages
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Location
Central Alabama
Hyde v Bham dissenting opinion (Court was split 3-2)

DeCARLO and BOOKOUT, JJ., dissent with opinion.

DeCARLO, Judge, dissents.

Article I, § 26 of the Constitution of Alabama of 1901, declares: "That every citizen has a right to bear arms in defense of himself and the state."

In the foregoing matter, the City of Birmingham justifies, through exercise of its police power, an infringement on this right to bear arms. The particular ordinance involved deprives citizens of bearing arms in a racially disturbed area because, from the City's point of view, such bearing of arms would incite others to riot. This argument, I suggest, has no more merit than the argument that short skirts on women incite would-be attackers to rape.

This court in Morris v. State, Ala.Cr.App., 342 So.2d 417, recognized that, under T. 14, § 175, Code of Alabama 1940, Recompiled 1958, a person had a right, with a permit, to carry a pistol in a vehicle. The court also said the statute did not prohibit the carrying of an unconcealed pistol. The court commented that a person had a right to carry a pistol unconcealed in a "scabbard or holster, worn on the side and not covered."

It appears that the Birmingham City Ordinance would not permit a person to go into an area with a "long gun" but would allow a person to enter the same area with a pistol or a revolver. Without question, the long gun carried in a truck would not incite a person to riot anymore than would a pistol or a revolver carried on a person's hip. The City's Ordinance is vague, unconstitutional, and an unwarranted infringement on the right of citizens to bear arms.

For the foregoing reasons, I therefore dissent.

BOOKOUT, J., joins in the above.
 

49er

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“ … We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach. The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges' assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.”

District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008
 

49er

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Messages
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Central Alabama
We too often discuss matters in terms of how we think they should be and that anything less is a major fail.

That isn't the way things are in the light of day (again forget should be) and you walk into that courtroom.

I suggest that we need all of the tools we can get and the stronger and more specifically worded the laws are, the better off we shall be.

Hell yes, strict scrutiny.



I'll stick to the current language of our Declaration of Rights thank you:


Constitution of Alabama 1901

Article 1 Declaration of Rights.

That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 26
Right to bear arms.
That every citizen has a right to bear arms in defense of himself and the state.

SECTION 36
Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.
 

49er

Regular Member
Joined
Nov 27, 2008
Messages
156
Location
Central Alabama
We too often discuss matters in terms of how we think they should be and that anything less is a major fail.

That isn't the way things are in the light of day (again forget should be) and you walk into that courtroom.

I suggest that we need all of the tools we can get and the stronger and more specifically worded the laws are, the better off we shall be.

Hell yes, strict scrutiny.



I'll stick to the current language of our Declaration of Rights thank you:


Constitution of Alabama 1901

Article 1 Declaration of Rights.

That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:

SECTION 26
Right to bear arms.
That every citizen has a right to bear arms in defense of himself and the state.

SECTION 36
Construction of Declaration of Rights.
That this enumeration of certain rights shall not impair or deny others retained by the people; and, to guard against any encroachments on the rights herein retained, we declare that everything in this Declaration of Rights is excepted out of the general powers of government, and shall forever remain inviolate.




XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXx


Constitutional Convention of 1901
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
REJECTED:
@ 172
Day 7
Ordinance No. 87, by Mr. Ferguson:
An Ordinance concerning the right of citizens to bear arms.
Be it ordained by the people of Alabama in Convention assembled, That in lieu of Section 27 of Article I. of the Constitution of 1875, the following provision shall be enacted:
Section ---. That every citizen has a right to bear arms in defense of himself and the State, but the General Assembly shall have the power to regulate the bearing of small arms, shall define the same, and shall pass laws requiring a license for the bearing of such small arms.
Note--For the benefit of the Committee the following authorities are cited:
Miller vs. Texas, 153 U. S. P., 533, and authorities there cited: 92 U. S. P. 542 ; 116 U. S. P. 252.
Referred to Committee on Preamble and bill of Rights.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

REJECTED:

@ 215-216

Day 8
Ordinance No. 131, by Mr. Murphree:
Relates to duelling, concealed pistols and other deadly weapons.
Be it ordained by the people of Alabama in convention assembled, That
Section 47, Article IV of the Constitution of Alabama, be and is hereby amended so as to read as follows:
The General Assembly shall pass such penal laws as they may deem expedient to suppress the evil practice of dueling and carrying pistols and other deadly weapons concealed.


XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
 
Last edited:

davidmcbeth

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I completely understand why strict scrutiny is desirable to some -- and how courts now use the various levels of scrutiny.

The best thing IMO, long term and correctly, is not to play the whack-a-scrutiny game at all.

Once its there (or once someone starts playing the whack-a-scrutiny game), then who knows, a proposal or next proposal would be for the lowest level of scrutiny to be on the ballot....then what? You screwed yourself over because you admitted, by supporting strict scrutiny, that this method is a correct method.

What will John do if this proposal fails and next election its on the ballot as the lowest level of scrutiny...John cannot go back and say that the scrutiny game is goofy.

And judges say that they use strict scrutiny when they do not ~ so what's the point?

Even if you win, the win will be a short term win IMO .. next election it will be up to change the level.

People might get screwed over (even me) .... I understand that too ...
 

skidmark

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Valhalla
At the moment is seems that the right really cannot be infringed, and the best the state can do is go after someone's behavior. Kinda-sorta like we say it ought to be.

So why not just say "No" to any and all attempts to adment what exists? Don't get hung up over what level of scrutiny to apply. Don't get wrapped around the axel of how reasonable or not the proposed restriction is.

If you must go beyond "Just say No" why not focus on what's happened when other rights were restricted - reasonably or not. But that's a slippery slope - lots of folks don't remember what it was like before the restrictions just like they cannot imagine a world without the internet or cable tv.

stay safe.
 
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