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Old February 23, 2006, 07:06 PM   #1
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End of Right to Bear Arms in Ky.?

The End of the Right to Keep and Bear Arms in Kentucky?

Note: This case is not yet final and is not yet posted on the Court's website. The Kentucky Supreme Court has 7 justices. Four joined the majority opinion, two concurred, and one dissented as to the issue involving the right to keep and bear arms. All of the opinions together total 64 pages.

For all practical purposes, the right of Kentuckians to keep and bear arms in defense of themselves or the state may have come to an end today. The end may not be recognized by most people because the state's highest court merely upheld a state law making it a crime for a convicted felon to possess a firearm. The problem is not necessarily the result, though this may be debatable, but how the majority of the Court reached the result. Essentially, the majority opinion ignored the plain wording of the state's constitution and said the right to keep and bear arms in defense of one's self or the state was subject to "reasonable" regulation by the state.

In Posey v. Commonwealth, ___ S.W.3d ___ (2006) (No. 2004-SC-60-DG, February 23, 2006), the Kentucky Supreme Court held the state law, KRS 527.040, did not violate Section 1(7) of the Kentucky Constitution which provides:
All men are, by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: . . . 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.
The majority opinion by Justice Graves (with Chief Justice Lambert, Justice Cooper, and Justice Wintersheimer concurring) reasoned that KRS 527.040 prohibits a specific class of individuals (felons) from possessing firearms and that this classification was rational and, therefore, met minimum state constitutional standards. Majority Opinion, p. 9. The majority discussed English common law and concluded that felons were generally not given the right to possess arms and that the authors of the state's various constitutions, including the current constitution, were undoubtedly aware of this and never intended for felons to be included among those persons protected. Earlier versions of the state constitution referred to the right of "citizens" to bear arms while the current state constitution applies to "all men." The Court determined that the change did not mean to include felons as among those receiving protection.

Note that the majority applied the "rational basis" standard of review rather than the higher "strict scrutiny" standard usually used when basic constitutional rights are impinged. It gets more interesting. "The people's right to bear arms in defense of themselves and of the Commonwealth was first recognized and preserved by our constitution in 1792. . . . The language as we know it today was ratified in 1891. A review of the debates which accompany its modern formulation of Section 1(7) indicate no intent on the part of the drafters to deem the right to bear arms in Kentucky absolute." Majority Opinion, p. 15 (emphasis added). This was particularly interesting since the majority opinion completely ignored Bliss v. Commonwealth, 2 Litt. 90, 12 Ky. 90 (1822) which had construed the 1799 constitutional protection as being absolute and struck down an ordinance prohibiting the carrying of a concealed deadly weapon. The current constitution only added the language making the right to bear arms subject to regulation on carrying concealed weapons.

The majority opinion emphasized the right to bear arms was not unconditional:

Moreover, the text in Section 1(7) does not support the notion that a person's right to bear arms is absolute since it plainly states that one may bear arms for the purpose of self-defense and defense of the State. Such language indicates that the right is conditioned on certain self-evident premises – that it be enjoyed lawfully and without undue interference with the rights of others.

Majority Opinion, p. 16 (emphasis added).

The majority added, "[T]he constitution permits some reasonable regulation of the people's right to bear arms, but only to the extent that such regulation is enacted to ensure the liberties of all persons by maintaining the proper and responsible exercise of the general right contained in Section 1(7)." Id. at 17 (emphasis added). The Court then cited as examples of reasonable regulation laws prohibiting armor-piercing ammunition, making possession of firearms unlawful on school grounds, and prohibiting possession of handguns by minors. The Court concluded that "Under no circumstances may regulation by the legislature be enacted for an arbitrary or irrational purpose, nor may it unduly infringe upon the general exercise of this right as it was envisioned and preserved pursuant to Section 1(7) of the Kentucky Constitution. Id. at 18.

Two justices (Roach and Johnstone) concurred in the decision based on the rationale that the state constitutional guarantee was never intended to apply to felons. They did not join in the expansive language of the majority; i.e, the rational basis test used and the right being subject to reasonable regulation.

Justice Scott gave a lengthy (41 pages) and very interesting dissent. He disagreed that felons were not protected by Section 1(7), though suggesting a constitutional amendment to do so would receive popular support (at least for violent offenders). He noted the violence confronting Kentuckians in 1792 as well as today and the fundamental right to protect ones' self. He argued that the framers of the state constitution understood the right to bear arms was unconditional, the right was inherent in the people, and that the language of Section 1(7) allowed only regulation of carrying concealed deadly weapons. Justice Scott also cited the Bliss case mentioned above. Finally, Justice Scott noted that this case was a deprivation of rights case and that strict scrutiny should be employed as the correct standard, rather than the rational basis test used by the majority.
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