Friday, March 22, 2013 | 3 comments

Permission Slips to Exercise Fundamental Rights

By Jeremy Lyman

Article 1 Section 6 of Utah’s constitution states, “The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed.”

Today, Governor Herbert is hanging his hat, not on that particular sentence, not on the fundamental principle of liberty, not on the inherent right of the individual to bear arms, but on the second part of that clause which says, “but nothing herein shall prevent the Legislature from defining the lawful use of arms.”

Governor Herbert has chosen to veto House Bill 76, which would allow law-abiding Utahns to conceal carry an unloaded firearm without needing a permission slip (conceal carry permit). The bill passed through both the House and Senate by over a 2/3 vote.

Utah law currently recognizes the right to carry a weapon without a permit as long as it is not concealed, but does require a state-issued permit to cover that same weapon with a jacket, to carry it in one’s briefcase, or in another concealed fashion.  We have previously written about the fundamental nature of the right to bear arms.  We posted an article specifically in support of HB 76.  We led the charge in support of the bill, along with two other gun bills, with a petition signed by over 1,000 Utahns, each indicating their support to the legislature and to Governor Herbert.

The Governor’s reasons for his veto, which he is required by law to provide, are spelled out in a letter addressed to legislative leaders.

We find his reasons lacking in substance, and falling far short of justifying his rejection of a policy which moves Utah in the direction of more liberty and away from unnecessary government intervention.  He claims to be an ardent supporter of the individual right to bear arms, even a concealed permit holder himself.  He extols the virtues of the Second Amendment of the U.S. Constitution, and describes the right to bear arms as “a fundamental right which must be jealously protected.”  But then he reveals the truth. The truth is that he does not support individual liberty, but rather seeks excuses for maintaining government control.

As we’ve previously discussed, the right of the individual to keep and bear arms is innate.  It is natural.  If you believe in God, then you must believe that this right is a God-given right.  Either way, the right to protect one’s own life, liberty, and property is inherent. It exists not because of government, but in spite of it.  It predates the United States, and therefore predates the U.S. Constitution.  It certainly predates Utah’s constitution. Even if the U.S. and Utah constitutions did not provide specific protection for the right to bear arms, it would still be one’s natural right, a right that no government could legitimately restrict without just cause.

Both the U.S. Constitution and Utah’s Constitution recognize this inherent right.  The men that penned both of these documents recognized that this right already existed, and simply affirmed this recognition in the text of the documents, with no attempt to claim origination for the right itself.  The second part of the clause in Utah’s constitution, the part that Governor Herbert would have us focus on, does not mean what he would have you believe.  The “nothing herein shall prevent the Legislature from defining the lawful use of arms” addition is of recent origin, and does not restrict this fundamental right.  The Governor would have you believe that this clause means that your right to bear arms begins where the state legislature says it begins and ends where they say it ends.  In other words, his interpretation of this clause would mean that your right to bear arms can be defined by the state legislature.

If this were so, then there would be no fundamental right.  The federal government’s framers said, in the Declaration of Independence, that men have been endowed with “certain unalienable rights…”  If the right to bear arms, the right to defend one’s own life, liberty, and property, and that of one’s family and others, is indeed one of these fundamental rights, as recognized by the U.S. and Utah constitutions, and as recognized by the founders, then it is unalienable.  It cannot justly be taken.  It cannot be infringed.  It cannot be unjustly limited.

The ability of the legislature to define the “lawful use of arms” is correctly interpreted to mean that one’s lawful use of arms cannot be limited, but one’s unlawful use of arms can be limited.  If arms are used to violate another individual’s rights, then the right to keep and bear arms has been abrogated.  Lawful use of arms cannot be limited.  Unlawful use can.  One has the right to bear arms, but not if the use of arms is inherently unlawful.  This clause gives the legislature the ability to limit the use of arms to “lawful” uses.  In other words, it is not legal to steal from one’s neighbor, and as such one cannot assert that their right to keep and bear arms gives them the right to use those arms to hold their neighbor at gunpoint and steal from them.  This would not be a lawful use of one’s firearm.

If the other interpretation is applied to the clause, then there would be no limit to the extent to which the legislature could infringe on the right to bear arms.  One cannot claim otherwise.  What would the limit be?  There is nothing else that would define the limit.  The right to bear arms would not be recognized as a fundamental individual right, but rather as a right to be defined at the whim of politicians and bureaucrats, a right which could be limited and changed from time to time, a right which for all intents and purposes, could be essentially revoked through regulation. We see the attempts by gun control advocates at the federal level.  We decry their actions and claim that the federal government has no authority to infringe whatsoever.  We should make the same claims about the state.  We should insist that our state release the unconstitutional control that it has seized.

Governor Herbert claims that “I have yet to receive any credible evidence that Utah’s current permit process constitutes a hardship.”  His statement is irrelevant.  He has no right to impose a state permit process with respect to one’s fundamental rights.  Onerous or not, the burden of obtaining the permit is undue.  If the concealed permit process is deemed to be of no undue burden, then the same process could easily be justified as a requirement for gun ownership itself.  After all, of what benefit is it to own a gun if you can’t “bear” (carry) it?  If the government, in the name of public safety, can justly regulate the carrying of a weapon, then it might as well start at the ownership level.  People who own guns will inevitably carry them.

Governor Herbert states, “Indeed, there are currently more than 430,000 holders of Utah concealed firearms permit both inside and outside the state.”  The fact that 430,000 people have been forced through an unjust process does not itself justify the process.  He further states, “Both gun owners and the people of Utah benefit by having concealed firearm carriers receive and understand this [Utah firearms laws] prior to receiving a permit.” This is likewise irrelevant.  The people of Utah would benefit if they all understood calculus, molecular chemistry, and thermodynamics, but this does not change the fundamental lack of authority the government has to force people to take courses on those subject matters.

He also states that Utah’s current permitting system has been in its current form for more than 15 years, and that it has become a national model.  The longevity of any given policy is hardly a measure of its virtue.  Whether or not other states follow Utah’s lead with respect to any given policy should have no bearing on whether the policy is worth keeping.

Finally, the Governor claims that he has received dozens of letters from law enforcement agencies opposing the bill.  As previously mentioned, he has received signatures of support from over 1,000 citizens, and thousands more have called his office in recent days asking him to sign HB76. What ultimately matters is not who is in favor or opposed to a policy, but whether the policy itself is legitimate, just, and wise.

We are not surprised to see law enforcement officials seeking to limit firearms use. But we are concerned regarding the degree to which the Governor is submitting to their expressed concerns. If he received dozens of letters from law enforcement agencies supporting a ban on “assault weapons,” or supporting general gun registration, or universal background checks, would the Governor stand on principle and defend the right to keep and bear arms, or would concede to agents of the government wanting to violate the rights of the very individuals who employ them?

Thankfully the legislature has at its disposal the ability to override the Governor’s veto.  We encourage all supporters of liberty, and particularly the fundamental right to bear arms, to contact their state legislators and politely urge them to support a veto override session to overturn the Governor’s actions and protect the rights of their constituents. Utah should be leading the nation in doing what’s right, not what is perceived to be popular.



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About the Author

Jeremy Lyman is Director of the Center for Private Property. For the past nine years he has held a real estate license in the State of Utah and has served on the board of directors for the Salt Lake Board of Realtors®, the Utah Association of Realtors®, and the National Association of Realtors®. He is currently the CEO for Blue Mountain Hospital, a Critical Access Hospital located in Blanding, Utah.


3 comments
James D
James D

Of all the many bad bills that got passed this session Gov Herbert managed to reject one of the very few good ones. Unbelievable and yet unsurprising...

cboyack
cboyack moderator

 @StephenJensen Scroll up and find the graphic in the sidebar that says "who represents you?" -- clicking that will get you a tool where you can look up your state legislators.

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