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Old March 29, 2013, 09:33 PM   #26
Spats McGee
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Quote:
Originally Posted by JN01
Quote:
Originally Posted by Spats McGee
It doesn't say "Congress shall not pass any law that affects any religious institution in any way." It says "shall pass no law respecting the establishment of religion." A religious symbol is particular to one given religion, and displaying one on gov't property is akin to endorsing that religion. Prohibiting all religions from allowing concealed carry (or open carry) on their property does not advance one religion over the others.
I don't see how the display constitutes "establishing a religion" but courts have said as much.
You're certainly welcome to disagree. If you'd like to challenge those rulings, the courts are open for business.
Quote:
Originally Posted by JN01
Quote:
Originally Posted by Spats McGee
Comparing them to all other private property is an apples-to-oranges comparison. Bear in mind that I, personally, oppose laws that do prohibit concealed carry on any property, but it's not a violation of the doctrine of separation of church and state.
How so? If a retail sales outlet and a church are both privately owned, and the law allows property owners to prohibit/allow guns on premises, it seems they should both enjoy equal treatment under the law. Discrimination against an individual on the basis of religion is not permitted, is it/should it be different for property owners? And if it is, in fact, discriminatory, does that not speak to the "free exercise" clause? (I realize that no court has said as much, nor, it seems have they said much else about religious rights restrictions lately)
Perhaps it will be helpful for you if I retrace our steps a bit. The discussion at hand was about "no guns in church laws," and whether same violated the doctrine of "separation of church and state." It began here:
Quote:
Originally Posted by Ralgha
Quote:
Originally Posted by Spats McGee
I see a lot of noise on various boards about how the "no guns in church laws" violate separation of church and state. One of my usual comments to such noise is something to the effect of: No, it doesn't. Not unless carrying a firearm is really a tenet of the belief system applicable to the church in question.
It violates separation of church and state because the church is getting preferential treatment by the law. Churches should be treated as any other private business, they can ban guns by their own policy and post signs, but they should not get the benefit of laws that apply specifically to them.
Government buildings and private property were introduced into the equation when you posted:
Quote:
Originally Posted by JN01
If the display of religious symbols on public property, or making reference to religion by government employees or during a government sanctioned event amount to "establishing religion", then how can government policy treating religious venues different than other private entities specifically because of religion not amount to "prohibiting the free exercise" of religion?
At that point, we got to:
Quote:
Originally Posted by JN01
Quote:
Originally Posted by Spats McGee
Comparing them to all other private property is an apples-to-oranges comparison. Bear in mind that I, personally, oppose laws that do prohibit concealed carry on any property, but it's not a violation of the doctrine of separation of church and state.
How so? If a retail sales outlet and a church are both privately owned, and the law allows property owners to prohibit/allow guns on premises, it seems they should both enjoy equal treatment under the law.
So we started with the question of "no guns in church" laws. How is church-owned private property different from other private property in relation to those laws? I'll tell you.

Let's start with the fact that one is owned by the church and the other is not? I promise, I'm not being as snarky as that might come across. It's actually a critical distinction. (Footnote 1) So what does that mean for a no-guns-in-church law? It means that the retail establishment is unaffected by the no-guns-in-church law (unless it doubles as a place of worship). Folks who want to CC into the retail establishment? Also unaffected by the no-guns-in-church law, because the retail establishment is not a church. One legal consequence of that is that the retail establishment lacks standing to challenge such a law.

If a church wants to challenge such a law, it will have to show that it has standing. In order for anybody to challenge a given law, that (potential plaintiff) must have standing. So we need to talk about standing for a moment. One of the elements of standing is that there has to be an actual controversy in regards to the law. The retail store, above, has no actual controversy under the no-guns-in-church law, because it's unaffected by it. The church might have an actual controversy, but in order to establish such a controversy, I submit that it will have to demonstrate that carrying guns in church is a bona fide religious belief held by that particular church.

This is a First Amendment analysis, not an Equal Protection analysis. If you want to discuss whether church-owned private property and other property should be treated "equally under the law," that appears to fall under the Equal Protection Clause of the Fourteenth Amendment, and is a separate analysis. For that one, the one challenging the law would need to demonstrate that he (or she, or it) is similarly situated to other entities in all relevant aspects (Footnote 2), and is being dissimilarly treated to his disadvantage.

[Footnote 1: Mind you, there are certain stores, such as Hobby Lobby, that (at least claim to) have integrated a belief system into their corporate structure so as to be able to claim religious exemptions, but those are the exception rather than the rule.

Footnote 2: I'm not entirely sure how SCOTUS has phrased that test under something like this, but that ought to be pretty close.]
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Old March 30, 2013, 01:35 PM   #27
JN01
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But those restrictions are made because of the supposed religious beliefs of the groups affected.

If churches are perceived as pacifist havens where no instruments of violence should be allowed and government passes a law to universally enforce that policy, is that not promoting a religious view (whether it is correct or not)?

Are you saying that religious organizations can be singled out for any kind of restriction as long as it does not directly affect religious practice? Could a government body pass a series of nuisance laws aimed at all places of worship in order to have a chilling effect on the practice? What if those laws were instead aimed at all publishers? Would that not constitute an attempt to infringe on a free press?
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Old March 30, 2013, 02:59 PM   #28
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Quote:
Originally Posted by JN01
But those restrictions are made because of the supposed religious beliefs of the groups affected.
No, they're not. The restrictions are made because the legislature does not believe that firearms belong in any place of worship (as those laws are typically written). If you have any evidence that the specific belief of a given church played a role in the legislative debates, trot it on out.

Quote:
Originally Posted by JN01
If churches are perceived as pacifist havens where no instruments of violence should be allowed and government passes a law to universally enforce that policy, is that not promoting a religious view (whether it is correct or not)?
That's vague enough that I'm going to pass on speculating.

Quote:
Originally Posted by JN01
Are you saying that religious organizations can be singled out for any kind of restriction as long as it does not directly affect religious practice? Could a government body pass a series of nuisance laws aimed at all places of worship in order to have a chilling effect on the practice? What if those laws were instead aimed at all publishers? Would that not constitute an attempt to infringe on a free press?
Questions 1 and 2, no, but I don't have time right this minute to lay out the finer points of A1 jurisprudence for you. The short story is that some restrictions, if applicable to all churches generally, without respect to which religion is at issue, are acceptable. (Zoning laws come to mind.) I'll try to get back later to fill in some of the blanks. Questions 3 & 4, those are freedom of the press, not religious questions, and I'll pass on dealing with those, as they're off-topic.
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Old March 30, 2013, 04:34 PM   #29
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Not to veer this too far off-course, but I recall reading that some of the Sikh faith will settle for a decorative dagger that is basically spot-welded in the sheathed position. IIRC, that related to a NY case/decision.
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Old March 30, 2013, 05:50 PM   #30
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Quote:
The restrictions are made because the legislature does not believe that firearms belong in any place of worship
I'm not trying to be argumentative, just trying to grasp the logic here. How can a law effecting only places of worship be construed as not having any religious connection?

What is the secular reasoning for prohibiting guns in church?
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Old March 30, 2013, 07:21 PM   #31
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There will always be tension between religious freedom and ostensible governmental desire to protect and serve the greater good. Defining freedom is a tricky thing. There are many things endorsed by various religions that are not legal in our country, and there are many others that are absolutely forbidden by some religions that are perfectly legal. It will always be so.

On topic, I believe strongly that I have a God given right and responsibility to protect myself, my loved ones, and those who cannot protect themselves from evil. I also understand that freedom of religion does not give me license to violate the established laws of the land whether I believe in them or not, without facing the consequences. My beliefs and affiliation does not give me special rights or privileges, and neither does yours.
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Old March 30, 2013, 07:22 PM   #32
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To get to the bottom of the secular reasoning for a particular law, we'd have to go to the legislative record, and see what the legislators actually said. Or if there are any codified legislative findings, we could look there. I don't have access to any such materials from home (& don't honestly don't know if I could get them at work).

However, some possible reasons:
1) Many churches have day care centers. It is just as dangerous to have guns around small children at churches as it is secular schools. Accordingly, guns are prohibited from churches.
2) Churches, synagogues and other places of worship are traditional forums for peace and tranquility. The carrying of firearms would be disruptive to other people desiring such peace and tranquility. Accordingly, guns are prohibited.

Take a quick look at the other side of the coin. I said earlier that the A1
Quote:
. . . .doesn't say "Congress shall not pass any law that affects any religious institution in any way."
It would be permissible for Congress to exempt faith-based charities from certain taxes. I'm not a tax lawyer, but I'm pretty sure that Congress has, in fact, done just that. Is that "connected to religion?" At least arguably, yes. Are other corporations treated differently? Yes, absolutely.

What would be impermissible would be for Congress to exempt (for example) Roman Catholic charities, or Buddhist charities, or charities of one other particular faith, to the exclusion of others. Or to give one group a larger tax advantage than others.
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Old March 30, 2013, 07:41 PM   #33
Glenn E. Meyer
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It was also the plan of folks opposed to concealed carry to ban as many places as possible. That would make carry such a pain that few would do it.

Libraries, theaters, etc. - these would have surface validity to ban as you don't want to disturb the peace. The surface validity of having God protect in the house of worship or not insulting God (who probably could take care of that by turning Open Carriers into pillars of salt) or not disturbing the peace of prayer would be used to convince folks to support such a ban. The real motive was to make carry annoying.

It is my belief (based on my great experience in Constitutional law ) that the text part of the First:

Quote:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
is relevant. A ban should be based on interfering with some dangerous practice as human sacrifice (for an extreme example). Free exercise means to me that you can attend services in any condition you want unless there is a risk. You cannot demonstrate a differential risk of guns at services. Thus, an absolute carry ban makes sense (not from our view though) but interferring with how you go to services is not constitutional unless you show specific risk - peace or offending a supernatural entity is not that.
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Old March 30, 2013, 08:06 PM   #34
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And to play the Devil's Advocate, . . . The other side of that is the argument that unless carrying that firearm is central to the actual exercise of your religion, prohibiting you from carrying it does not infringe upon (much less prohibit) the free exercise thereof.

That's what makes this interesting. The Sikhs have a clear element in their belief system that at the very least requires the carrying of the kirpan. Whether that stretches to the polymer semiauto pistol. However, even if an argument that support the carrying of a weapon exists for other religions (as Aquila Blanca pointed out), I can think of no other in which the carrying of a weapon is so conspicuous and central.
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Old March 30, 2013, 08:59 PM   #35
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In addition there are already laws on the books that recognize that wearing a Kirpan is a federally protected right. http://sikhcoalition.wordpress.com/2...irpan-at-work/
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Old March 31, 2013, 12:01 AM   #36
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Spats, this is where my point comes in. There are precedents for other religions seemingly popularized for the purpose of getting around a law. If a new religion were to spring up and become popularized saying that we must have a weapon in reach at all times, would it be permissible?

I think the way to look at it is to go to the furthest extreme and then decide what we're looking at. We know that certain religions are allowed to carry a weapon. Are any religions allowed to open carry automatic weapons and destructive devices? If no, how about to own or concealed carry? What about open carry of a semi automatic weapon? What if the religion specifically states that you must make use of the best available weaponry?
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Old March 31, 2013, 06:37 AM   #37
Spats McGee
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dakota.potts, I don't know about any "religions seemingly popularized for the purpose of getting around a law," but that doesn't mean that they're not out there. It really just means I'm unaware of them.

As for the rest of the "what if," I don't know. If a member of said "new religion" wanted to challenge a law, my best guess would be that the member had best be prepared:
1) to go to jail;
2) to go to jail for a long time;
3) to lose the challenge (thus staying in jail and losing gun rights forever);
4) to expend a great deal of money on legal challenges, both civil and criminal.

Could a member of such a religion win? I don't know, and figuring it out is much more than I can answer in an internet post. The devil is in the details, and I'd likely have to interview several members of the religion, including the member challenging the law and his or her clergyman, as as well as spend several hours researching the law on state and federal levels.
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Old March 31, 2013, 09:00 AM   #38
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...dakota.potts, I don't know about any "religions seemingly popularized for the purpose of getting around a law," but that doesn't mean that they're not out there. ...
Sorry, don't have a link, but if memory serves starting in the 1960s there were a number of "religions" founded that included the use of hallucinogenic drugs as part of their services and an essential basis of their doctrine for the purpose of allowing legal use of peyote, mescaline, LSD or whatever other substance the founders favored. I don't recall the fate of these "religions" but their history might possibly give some insight as to the possible course of events for "The Church of the Armed Disciples" or whatever the suggested order might be called.

As a layman, it seem to me Spats has pretty well laid out the probable results of such an attempt, though.
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Old March 31, 2013, 12:06 PM   #39
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Quote:
It is my belief (based on my great experience in Constitutional law ) that the text part of the First:

Quote:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
is relevant. A ban should be based on interfering with some dangerous practice as human sacrifice (for an extreme example). Free exercise means to me that you can attend services in any condition you want unless there is a risk. You cannot demonstrate a differential risk of guns at services. Thus, an absolute carry ban makes sense (not from our view though) but interferring with how you go to services is not constitutional unless you show specific risk - peace or offending a supernatural entity is not that.
Thanks Glenn, that's part of what I was trying to say but not getting across.

I like to think I'm a reasonably intelligent guy, but these legal issues really baffle the hell out of me sometimes, particularly those those that seem to show a disparity in application (such as the difference in treatment of the religious establishment and free exercise clauses, or how the 2nd has been completely twisted beyond recognition over the years).

I do appreciate those legal minds on the board (Spats and others) trying to sort it out for us mere mortals.
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Old March 31, 2013, 01:38 PM   #40
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Thanks for the great answer nonetheless, Spats. When you list those things that a religious person should prepare to do to change a law, do you believe this Sikh man should be preparing himself for those things/already is?
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Old March 31, 2013, 02:35 PM   #41
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If you're going to challenge criminal laws, you don't have to wait to be prosecuted, but there must be some reasonable threat that you could be. (ATM, I don't remember the exact wording.) As part of the pleading, the plaintiff will have to say:
1) I am prohibited by law from doing X.
2) I would very much like to do X.
3) Were X not illegal, I would do it.

IOW, the plaintiff has to make a statement under oath that he wants to break the law.

The other way to challenge a criminal law is to go break it, and challenge in as part of your defense.

Do I think the Plaintiff has prepared himself for one of the things I've listed? Yes, I do. Constitutional challenge to a federal law is long, expensive, and not risk-free.
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Old April 1, 2013, 12:59 PM   #42
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Quote:
if memory serves starting in the 1960s there were a number of "religions" founded that included the use of hallucinogenic drugs as part of their services and an essential basis of their doctrine for the purpose of allowing legal use of peyote, mescaline, LSD or whatever other substance the founders favored. I don't recall the fate of these "religions" but their history might possibly give some insight as to the possible course of events for "The Church of the Armed Disciples" or whatever the suggested order might be called.
I read about this a bit a long time ago and, as I recall, for a religious exemption from a law they had to show that the thing in question (drugs, firearms, or whatever) was a central part of their organized religion and ceremonial practices before the law was made. That way people could not just think up new religions every time they did not want to comply with the law. The only groups I know of that were successful challenging the law were Native American groups that had a long established tradition of peyote use as part of their religion. Mescaline on its own might not fall under the exemption because it would need to be extracted from peyote, normally the intact plant is ingested for ceremonial purposes. The Sikh caring of a knife is also a long established tradition but firearms are not so the exemption might be hard to defend for firearms.
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Old April 1, 2013, 01:30 PM   #43
zukiphile
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Quote:
Originally Posted by Glenn E Meyer
Thus, an absolute carry ban makes sense (not from our view though) but interferring with how you go to services is not constitutional unless you show specific risk - peace or offending a supernatural entity is not that.
I share that conclusion. The infringement is not primarily against the church, but on the rights of one who wishes to attend. The bill of rights should not function as a Chinese menu in which you get to pick your favorite protected rights and sacrifice the others.

Certainly, we would object to a state law permitting the state to engage in prior restraint of speech if spoken at a church. Requiring a fellow to suspend his right as described in the Second Amendment while he attends church imposes a burden on that First Amendment right as well as the Second Amendment right.

Quote:
Originally Posted by Spats McGee
And to play the Devil's Advocate, . . . The other side of that is the argument that unless carrying that firearm is central to the actual exercise of your religion, prohibiting you from carrying it does not infringe upon (much less prohibit) the free exercise thereof.
How many other rights may a state restrict in exchange for the free exercise right?

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