The Rise of Government 'Privileges"

USA Today ran a story about how some public school districts are trying to enforce year round conduct standards on their students. The current target of these conduct contracts are students involved in extracurricular activities. You can be sure that the rest will soon follow. What bothers me about public schools enforcing conduct standards (some of the prohibited conduct is not illegal, BTW) is that you have to sign one in order to participate in extracurricular activities. School administrators justify this intrusion into students private lives by the "it's a privilege, not a right" mantra. Every adult who drives has no doubt heard that driving is a privilege and not a right. The first time you hear that, it's slightly shocking, since not being able to drive in America is basically a condemnation to poverty (unless you live in Manhattan or have a chauffeur).

However, the privilege argument begins to fall apart when over zealous school administrators try to apply it to public schools which are funded by public taxes. Driving can be seen as a right because as a citizen, I don't have to do it. I could opt to not buy a car, not get a driver's license, not pay insurance, etc. However, as a minor in America, I can't opt out of school attendance. As a property owner in the US, I cannot opt not to pay my property taxes which fund the schools and their extracurricular activities. So what kind of privilege are we talking about where I have to pay for it but the government can require me to give up my constitutional rights in order to take advantage of it? Using this logic, the fire department could tell me that their pumping water on my burning home is a privilege and not a right, and If I really want that privilege, I better sign their contract saying I'll be good 24 hours a day (and they define what 'good' is) and perhaps wax their cars while I'm at it.

It won't be long before an unelected government administrator tries to convince us that corruption free government is a privilege, not a right.

What will you be willing to give up to get it?

D.C. Ends Vehicle Inspections - But Is The Joke On You?

D.C. has announced that starting October 1, 2009, they will no longer require vehicle owners to get an annual inspection. This was announced as a budget reduction , allegedly saving the district some $400,000 per year.

Of course, the paranoid in me immediately questions how the People's Republic of D.C. could ever give up this control and revenue stream. Why wouldn't they just increase the inspection sticker price? Seems a bit out of place, doesn't it?? Unless....

Unless it gives them more control. Is it possible, that after October 1, 2009, a D.C. Police officer can pull you over for no obvious violation but instead do it under the cloak of a 'roadside inspection'? Am I really that paranoid? Yes.

Before you judge, consider that this surprise inspection cancellation announcement comes just 65 days after D.C.'s plan of setting up roadside checkpoints in certain high crime neighborhoods was ruled unconstitutional by a federal court. So D.C. can no longer roadblock whole neighborhoods, but perhaps they will now just set up vehicle inspection programs? Perhaps setting up shop in certain neighborhoods? Yes, that makes it all fit together nicely.

We'll see...

Cliff Notes for D.C. vs. Heller

Today the Supreme Court issued it's long awaited ruling in the District of Columbia Et Al. Vs. Heller case (pdf). It should finally put to bed (but sadly probably won't) the rediculous argument that the 2nd Amendment some how only protected the right of the federal government to form an army (militia). It also destroyed several other tired myths that gun-control groups have tried to pass off over the last 45 years. For example:

The 2nd Amendment only protects the right to own 18th century firearms only:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern
forms of search,the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. (D.C. vs. Heller - pg 8).

The 2nd gives the right to bear arms, but congress can take it away by amendment:

We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed." (D.C. vs. Heller - pg 19).

That the last 'big' 2nd Amendment case, United States v.Miller, 307 U. S. 174, 179 (1939), confirmed that the 2nd Amendment didn't apply to ordinary citizens:

Miller did not hold that (that the 2nd amendment was only for state sponsored militia members -subleum) and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men’s federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection." (D.C. vs. Heller - pg 49).

That the Second Amendment is about hunting (and no one really hunts anymore):

Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. (D.C. vs. Heller - pg 24).

All-in-all, the majority delivered a through and well founded opinion, laying out why the Second Amendment is just as important and individual a right as the 1st and 4th. Interestingly, the court did not touch on the issue of gun licensing/registration, primarily because the petitioner (Heller) only asked that the District process his license request. Scalia noted:

Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. (D.C. vs. Heller - pg 3).

That of course leaves open the question of whether or not the government is allowed to require a license in order for a citizen to exercise a right enumerated in the Bill of Rights.

Can the government require a citizen to obtain a permit before exercising his Second Amendment right to own a firearm? Clearly, given D.C.'s post-decision statements, that exactly what they plan on doing. Given that the majority spent 64 pages explaining how the right to keep and bear arms was a right on the same level as the First and Fourth Amendments, it would seem contradictory that they would then claim "oh, but you need a permit from the government to exercise this one" unless the government is also able to require permits prior to speaking, publishing a newspaper or in order to petition the government for a redress of grievances. Or the more extreme example, a permit needed to exercise your right to be free of unreasonable searches and seizures. Alas, this is another area that will have to be ironed out over the coming years.

For it's part, D.C. is guaranteed to do everything in it's power to minimally comply. The District's Attorney General, Peter Nickles provided a glimpse of their strategy:

We are going to strictly regulate the registration of handguns. There will be no authorization of automatic or semi-automatics.

Which to me seems like a very questionable legal strategy. Primarily because the SCOTUS opinion clearly says handguns are protected because they are common and popular self-defense weapons.

Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid. (D.C. vs. Heller - pg 58).

And semi-automatics are the most popular type of handgun. Sadly, this is not unexpected from the AG that declared that D.C. roadblocks were clearly constitutional. And oh, and he was on the wrong side of the Heller case as well.

Growing support for traffic fine repeal

Looks like there's a growing sense of just how ridiculous these new traffic fine laws are. A story on WTOP this morning notes there is a web petition that currently has 14,000 + 'signatures'. We'll see. At this point I thought everyone would have forgotten about it and gone back to watching their American Gladiators.

Online Petitions:

http://petitiononline.com/va3202/petition.html (14,000 + signatures at the time of this posting)

http://www.ipetitions.com/petition/VAtrafficfees/signatures.html (1,000 + signatures at the time of this posting)

Virginia's new (and completely unconstitutional) traffic fine law

Starting this July 1, 2007, the state of Virginia will be imposing new “Civil Remedial Fees" on drivers who get certain types of driving citations (tickets). Money generated from these fines will be used to pay for highway improvements throughout the state. And they're no ordinary fines, they're huge. These new 'fees' will be in addition to any fines that are currently charged. A speeding ticket could now easily cost you more than $3,000 in fines. The infractions, along with the fines are listed here.

Aside from the general shock of how steep the fines are, I was also amazed to learn that these fines will only apply to Virginia residents:

“The civil remedial fees established by this section shall be assessed on any resident of Virginia operating a motor vehicle on the highways of Virginia, including persons to whom Virginia driver's licenses, commercial driver's licenses, or learner's permits have been issued pursuant to this title; and persons operating motor vehicles without licenses or whose license has been revoked or suspended.”

So if you’re from another state and are caught speeding in Virginia, you’re immune to these fines. That just doesn't sound right with me, and I believe the Constitution of the United States bars this type of law being passed.

Article IV, Section 2 of the Constitution states that:

The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.

If a citizen from Virginia has a privilege and immunity from some penalty within Virginia, then a citizen of North Carolina (while in the state of Virginia) has that same protection as well. The writers of the Constitution were most likely worried that a state like Virginia might pass laws that only applied to citizens of another state, like Maryland for example. Something like, “

All drivers on the roads of Virginia must pay a highway use fee of $100 per day (*residents of Virginia are exempt).

Imagine the havoc it would create if each state started writing laws that only applied to citizens of other states. Commerce would break down as states retaliated against each other. We would be left with kingdom 'states', rather than a "united" states (the Constitution's authors probably never considered that a state might write laws that ‘stick it’ to only their own people, but that’s what Virginia is going to do).

That's why Article IV Section 2 of the Constitution says that if a citizen of Maryland is exempt from this fine/fee/penalty solely by virtue of the fact that they are a from the state of Maryland, then the state of Virginia has to afford me the same immunity/privilege.

Not content to violate just one part of the Constitution, Virgina has also decided to take on that pesky XIV Amendment. This amendment guarantees, in a nutshell, that no state shall

"...deny to any person within its jurisdiction the equal protection of the laws.

Yet Virginia is planning to afford protection from this fine to the everyone but residents of Virginia. Imagine if the outcry if the phrase "Virginia resident" were replaced by any other description:

"The civil remedial fees established by this section shall be assessed on any (person of African decent, woman, Puerto Rican, Californian, resident of Richmond, etc) operating a motor vehicle on the highways of Virginia..."

In fact, the Supreme Court has already ruled on a similar issue once before (Hicklin v. Orbeck (No. 77-324)). In this case, an Alaskan law required preferential hiring of Alaskans based on their state of residence. The law was struck down in part because the law violated the Privileges and Immunities Clause of Art. IV, § 2.

The mystery in all this is not that Virginia Legislators have no idea what the Constitution says. It's why they would not fine everyone. Why would they forgo all that extra money? What about fining other state's residents has them rattled? You can see from the initial versions of this bill that they intended to fine everyone, then suddenly it was Virginians only.

Could it be they foresaw a bigger problem, maybe a federal problem dealing with interstate commerce?

Update: The VA Code Section related to the fees is located here.