Monday, February 11, 2013 | 2 comments

The Legislative Threat to Liberty

By Connor Boyack

Two weeks ago marked the beginning of the 2013 general legislative session in Utah, where legislators, lobbyists, and citizen activists converge on the Capitol to promote their personal, political, and corporate interests.

To educate and remind Utahns of what this means for them, we decided to post a billboard along I-15 which clarifies the situation more forcefully than many seem to understand. It’s taken from a well known quote by Gideon J. Tucker: “No man’s life, liberty, or property are safe while the legislature is in session.”

In an 1866 ruling as a “surrogate” (judge) presiding over a lawsuit against the estate of a deceased individual, Tucker used the quote above to highlight the importance of constantly monitoring what legislators were doing. This is made more explicit in a preceding sentence where Tucker indicated that an issue at the heart of the lawsuit “arose from want of diligent watchfulness in respect to legislative changes.” In other words, somebody had violated the law because they didn’t realize that the law had recently changed.

This point is a perfect example of what James Madison wrote nearly a century earlier. In Federalist 62, Madison decried the constant changing of “laws” which had no solid foundation and which were altered for unnecessary reasons:

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Utahns have the good fortune, compared to other states, of being ruled by a legislature which is only in session 45 calendar days per year (excluding infrequent and brief interim sessions). This part time status significantly reduces the harm that could otherwise be done by full time career politicians. (Ahem.)

But a lot can be done in 45 days, and Utah’s legislature being only part-time does not mean that liberty is never violated in this state. The opposite is true, and there is much that needs to be done to correct it. The laws in Utah are indeed “mutable” (constantly changing), and often in a direction inimical to individual liberty.

This is seen most easily in our Legislation Tracker, where we sift through the hundreds of proposed bills being proposed in the legislature and highlight the ones that strongly support or oppose liberty. At the time of this writing, there are 38 ranked bills, 30 of which the Libertas Institute opposes because they violate life, liberty, or property. That’s not a very good track record for this session so far.

A sign in the office belonging to the Speaker of the (Utah) House of Representatives, Becky Lockhart, states: “Never underestimate the power of stupid people in a large group.” This power, the not-so-proverbial “tyranny of the majority,” is one which year after year, decade after decade, has methodically and increasingly been used to violate, and not protect, the liberty of individuals governed by the “large group” of politicians.

It is for that very reason that Tucker noted that one’s life, liberty, and property are not safe when the legislature is in session—the very people who in theory should be securing individual rights are the ones who actively violate them. Our billboard will be on display along I-15 for the next two months, standing as a reminder of the legislative threat to liberty that will exist for the next several weeks.



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2 comments
Joseph Sorensen
Joseph Sorensen

The billboard is frighteningly true:

 

Today a bill intended to protect rights related to the 2nd Amendment was transformed into a blatant violation of those same rights.  During the Feb. 28 House floor-session HB268 was un-circled, amended, effectually reversed, and passed.  This bill that initially appeared to protect a gun bearer from charges of disorderly conduct is now going forward as an infringement on the right to openly carry.

 

The bill made it through committee after legislators received mass e-mails urging their support of an amended version of the bill.  The amended version removed language that obviously infringed a persons right to carry and replaced it with language that subtly and more definitively restricts the right.  I’m assuming that this subtlety was not pointed out in encouragements to forward the mass e-mail support. 

 

On the floor the bill was further amended to clarify the restriction.  In response to concerns that this bill still permitted “offensive” firearms to be carried in public places, the sponsor of the bill refuted this idea and expressly confirmed that the bill effectually prohibits the carrying of un-encased firearms in public places.  In effect the bill will outlaw the open, visible carrying of anything but a handgun.

 

Even those who agree, should be concerned by the deceptive way this has been achieved.  I’m guessing most citizens who supported this bill last week don’t realize how it has been transformed, and that many would no longer support it if they did.

 

The problem with bills that violate rights protected by the Constitution is that any recourse will likely further diminish freedom.  This is in accordance with early arguments against a Bill of Rights, which suggested that if we start trying to explicitly enumerate freedoms we implicitly deny freedom regarding anything not explicitly addressed.  By saying that people cannot be charged with disorderly conduct simply for carrying an “encased firearm” HB268 implies that carrying any un-encased firearm is disorderly.  Again, the sponsor of the bill confirmed that this is exactly what it effects.

 

Sadly if HB268, assuming it is signed into law, is ever challenged by an appeal to the 2nd Amendment now the Utah Supreme Court is bound, and rightly so, by the provision in the Utah Constitution which allows infringement on the right to bear arms.  Even worse, recourse by an appeal to the U.S. Supreme Court would make the issue federal and binding either way on States taking away the States’ ability to make its own decision regarding firearms. 

 

As so often happens when we try to address issues via government, HB268 in a supposed attempt to protect freedom has diminished it. Often leaving things relating to freedom unsaid is a million times better than trying to define them.  When freedom is enforced it is not freedom.

 

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