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