Sunday, July 14, 2013

Desperation, Politics and Judicial Activism

By Dave Dargo

Judge Winston L. Kidd of Hinds County, Mississippi has employed rather tortured logic to justify an injunction infringing on the rights of the people in Mississippi. Judge Kidd isn't the first person to misunderstand plain english in an attempt to infringe the fundamental rights of the people and I'm sure he won't be the last. Judge Kidd and his logic, however, represent a real threat to the rights we the people retained.

The State of Mississippi has simple language in its constitution regarding the right to keep and bear arms in section 12:

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.
The language given above gives no rights to the citizen. Rather, it tells the government of the State of Mississippi that this right shall not be called into question. The language then goes on to grant a power to the state which is the power to "regulate or forbid carrying concealed weapons". It's rather simple. The citizens have the right to bear arms in defense of their person but the state can regulate or forbid concealed weapons.

What does such language mean practically? It means that a citizen in Mississippi can bear arms openly in Mississippi but the bearing of arms in a concealed manner may be regulated by the state.

Consistency is something we can count on from the anti-gun statists who believe that the people can only do what the state allows. The statists are unhappy that mere citizens have the fundamental right to bear arms without the state's permission so they have stretched and stretched as far as they can to forbid it.

It started with some courts in Mississippi ruling that a pistol in a holster worn upon the hip is concealed. After all, parts of the pistol can't be seen when it's in its holster. The tortured logic of this definition of concealed reminds me of my best friend when I was three years old. If he didn't want anyone to see him he would cover his eyes; after all, if he couldn't see you then you couldn't possibly see him. He would run down the street with his hands over his eyes thinking he was invisible. Judges who ruled that a pistol being held in an openly displayed holster constituted concealment and, therefore, required state permitting were stretching the bounds of logic.

But, as if that weren't enough, the state's attorney general issued an opinion that Mississippians don't have the right to openly carry firearms because they weren't granted that right in the constitution. Once again, the constitution doesn't grant rights to the people. Those rights already exist. The constitution grants powers to the government and the only power granted to the state of Mississippi here is the right to regulate concealed weapons.

The state legislature had enough of this nonsense and passed House Bill 2 last year clarifying that carrying a pistol concealed does not apply to a pistol carried "upon the person in a sheath, belt holster or shoulder holster that is wholly or partially visible".

There, problem solved, we all now understand that a weapon that is carried in a belt holster is not considered concealed if the holster is wholly or partially visible. Wow, that was easy.

Easy, that is, until the elitists and Judge Kidd came along. Judge Kidd has issued an injunction blocking implementation of the law.

I love reading well written court rulings - it's almost like reading poetry. There is, unfortunately, nothing poetic about Judge Kidd's ruling. Judge Kidd asks, "How are law enforcement officials to determine which individuals are a threat to the general public?" Ignoring, for a moment, that this has nothing to do with the open carrying of a firearm, the honorable Judge Kidd seems to believe that if the weapon is concealed then it doesn't exist. Apparently the open carrying of a firearm represents some type of potential danger that concealed carry of that firearms does not represent. I remind you of my invisible friend.

The judge's logic centers on issues that are of no concern to the judiciary: the difficulty that law enforcement may have with enforcing laws or the feelings of the general public. The people have spoken through their legislature and it is up to law enforcement, the uncomfortable public and even judges like Judge Kidd to get over it.

Here is the most dangerous statement in the judge's opinion, "This Court has found no case law, or any other authority, which gives an individual the absolute right "to open carry" a weapon, as contended by the State."

Judge Kidd's court has now determined that if a right is not expressly granted to the people then no such right exists. This single statement demonstrates to me that Judge Kidd does not understand the source of our rights, the structure of our government nor the purpose of a republic founded on the principle that people grant powers to the government.

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