Taxing a right is illegal
As much as I hate to agree with a racist, a Newport man was ejected from a council meeting after he protested the city’s parade tax ordinance which requires fees and permits to peacably assemble:
A man who said he is a resident of Cocke County was escorted from the Newport City Council meeting Tuesday evening after he continued to protest the city’s parade ordinance.
Randy Gray told the council he believes the ordinance violates the U.S. Constitution because it requires a permit for public speech, which he argued is guaranteed.
Gray declined later to comment on whether he is associated with the Ku Klux Klan, whose representatives had been expected to attend Tuesday’s meeting.
January 14th, 2004 at 11:52 am
Aside from being a racist schmuck, the guy is probably wrong, as well. His argument proves way too much; “rights” are licensed all the time. In fact, one of the most common “sucker answers” on the Multistate Bar Examination is any answer that holds a law constitutional on the gruonds that the affected conduct is “a privilege, not a right,” or unconstitutional on the grounds that it is “a right, not a privilege.” Legally, that distinction simply does not exist.
Here are a few examples of “rights” that have been, and continue to be, licensed:
If all of my examples are ultimately overturned, then I agree that Randy Gray should be let off, as well. Barring that, I see no reason to extend to him the benefits an absolutist version of the First Amendment, which isn’t available to the rest of us.
January 14th, 2004 at 11:59 am
While I would have to bow to your superior knowledge, i find the practice fairly deplorable. Taxing rights has long been used to stifle the excercise of them (try buying a gun in NYC at a cost of $600 just in fees to governments; or the most deplorable was poll taxes).
I can understand (and tend to agree) with some points but there is a point where the line must be drawn. I think people tend to disagree on where that line is.
January 14th, 2004 at 3:09 pm
I agree – licensing a right does raise constitutional concerns if it imposes an unreasonable burden on the activity in question. Charging $650 for the privilege of owning a $300 gun (or whatever) certainly falls into that category. The particular fee Gray is protesting against doesn’t strike me as all that unreasonable, assuming it is applied in an evenhanded, viewpoint-neutral fashion (as opposed to, say, charging the Klan $250 and the NAACP $25).
Of course, none of that bears on the fact that Gray was ejected from the City Council meeting over the issue. Theoretically, he could be right on the permit issue but wrong to badger the City Council about it, or, depending on the open meeting laws, vice-versa.
January 14th, 2004 at 7:40 pm
Actually SCOUS has ruled a few times that taxing someone for the enjoyment of a Right is constitutionally repugnant. These cases mainly happened in the late 1800-early 1900’s but to my knowledge are still good law.
Now the permit system for guns is blatently uncostitutional. But since when has SCOTUS not looked the other way when someone mentions 2nd of anything?
Marraige – most states have a common law provision where you shack up a certain time & boom – you’re wed. similarly there’s no state imposed fee on a priest or preacher or some other clergy performing a ceremony. So you can get married w/o a license – it just won’t be recognized by the state till y’all have been living together X number of years.
Drivers license – all states will tell you its a privilege. Same with a hunting or fishing license in all but a few states. In theory this is a losing argument for a number of reasons. But the state is not about to let those cash cows loose.
But one thing about parade permits – they involve a group. Far as I know there’s no license for you or me or anyone else to grab a soapbox & talk it up on mainstreet. So what I’m tentetively thinking is that licenses, permits, etc… for group activities (performed by a group) that utilize & possibly tie up public space can be licensed within limits; mainly for the purpose of not having two groups parading towards each other in the middle of rush hour.
So I’m not bothered by it as long as the permits are distributed equally on a first come first serve basis, there’s no favoritism on behalf of the state for or against a particular group, & the fees are not restrictive.
restrictions, fees & licensing for individual Rights however is a whole ‘nother ball of wax.
January 15th, 2004 at 2:38 pm
Publicola, you’re wrong.
Gun permits: even if courts were to wake up tomorrow and figure out that there is a Second Amendment lodged in there between the First and the Third, this does not mean the RKBA could not be regulated at all. An overly discretionary licensing system, like NYC’s, would probably be held unconstitutional, but an evenhanded one like Illinois’s would not be. Alas, there is no constitutional “right” to be free of unnecessary red tape.
Marriage: contrary to your post, most states do not recognize common law marriages anymore, except to the extent that they do recognize common law marriages that are valid in other states (e.g., if you get a common law wife in Idaho and then move to California, you’re still married).
Driver licenses: please read my post more carefully. I said right to travel, not right to drive. Technically, it is possible to travel without driving, of course, but one would be hard pressed to argue that losing the legal right to drive does not significantly impact the right to travel. Besides, the whole “rights/privileges” distinction is a legal nullity anyway. If any state ever took the “driving is a privilege, not a right” meme to its logical conclusion and adopted a “may issue” driver licensing scheme instead of the “shall issue” model we take for granted in all 50 states, then trust me, there would be legal challenges up the wazoo.
Individual vs. Group: While it’s not unreasonable to argue that groups should need permits and individuals should not, this does not follow from your rights-based analysis, and is in fact inconsisten with the “you can’t regulate a right” argument. The “right of the people to peaceably assemble” clearly contemplates group activity, not just individual protests.
January 15th, 2004 at 7:17 pm
Xrlq,
Nope. Not wrong.
Gun permits: This would be a regulation on the Right to Arms. Aside from the arguments about registrations only true purpose is to make confiscation easier (of couse you’ll be shocked I agree with those arguments)a side effect of registration is that it does indeed infringe upon the Right to Arms. Registration involves expenses of time, money & frustration (name one registration system adminestered by any government agency that wasn’t subject to frustrating those who registered or attempted to0 & as such it makes buying, owning or possessing a firearm more difficult. That would constitute an infringement. & I strongly disagree that Illinois’ registration system is even handed. It might be compared to other systems (like DC or NYC)but it still infringes & chills the Right to Arms.
Ya see, the second amendment states that the rights of the people to keep & bear arms shall not be infringed. Couple that with the 14th amendment applying the bill of rights to the state & what you have is exactly a constitutional right to be free of red tape when pursuing the exercise of this Right.
Infringe, after all, means to “…To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law…” That’s the second definition from Webster’s 1828 edition. I chose that as it’s the closest to the time of the 2nd amendment’s writing I could find on short notice.
Now registration wouldn’t necessarily break a person’s right to arms (although it’s eventual outcome – confiscation- will), but it would violate that Right, even if only minimally. It would certainly transgress & it certainly violates the constitutional prohibition on action that vilates & transgresses our Right to Arms.
So if you’re cool w/ registration, then amend the constitution, cause registration conflicts with the 2nd amendment.
January 15th, 2004 at 7:28 pm
Xrlq,
It’s my understanding that most states do have common law statutes in effect. I will concede that I could be mistaken. & further I’m not crazy about states issuing marraige licenses at all. Not because of any Rights based argument, but simply because marraige is not the state’s business. Anything legal that is covered by marraige can & should be covered by private contractual agreements enforcable under a state’s law. But that’s a whole ‘nother issue.
I read what you said & realize you’re speaking of the Right to Travel generally. I brought up the Right to drive arguments merely to show that there’s a lot of well reasoned thought concerning driving being a Right, not a privilege as the state’s will assert.
But the distinction between driving being a privilege instead of a Right is relevant: the state can at its whim decide that you or anyone else cannot have a drivers license. They can revoke it when they want & you really can’t do anything about it. In practice they don’t do this, but it’s for pragmatic reasons, not because they lack the authority. Drivers licenses are may issue, not shall issue. It’s just that it works more like a shall issue system in practice. But either way, may issue & shall issue deals with a privilege, not a Right.
January 15th, 2004 at 7:46 pm
Xrlq,
Individual v. group:
For stricly pragmatic reasons it is necessary to intervene in group activities. I’m all for that peacable assemblage thing, but if that involves pedestrains in the middle of the interstate at rush hour, then I’m inclined to think that some regulations are necessary. I think we all would be.
But regulations that affect activity, even activities regarded as Rights, are much different than regulations based upon prior restraint. Activity that will cause some preventable disruption &/or danger is not within the scope of the Right as I see it. Hence, laws registering firearms are bad, while laws prohibiting firing guns in a crowded building aren’t.
So it’d have been more correct for me to say that pragmatically I can go along with regulating a group activity, but I should have made the distinction between what’s cool & what’s not on the basis of prior restraint, not necessarily collective vs. individual Rights.
Still, taxing a Right, even where there’s a justifiable reason for regulation of activity is not cool. Permits, restrictions of location & time for the parade, etc… could be issued without charging a fee.
So I’d have to say the guy would have been correct if his argument was based strictly on the monetary side of things ($250???), but limiting group activity to avoid conflict with others who wish to use public space is not that compelling.
Now something seperate is the threat of arrest if a demonstration is organized. A group of people protesting is quite different than a parade & as long as the protestors take care to not impede upon the public’s access (i.e. not completely blocking the sidewalk or blocking the road) than any attempt to arrest or dispurse them would be violative of the Right to assemble.
Unfortunately in cases like this the might of government usually wins over the Right of the people or person.
January 16th, 2004 at 10:49 am
Just for the record, I’m not “cool” with gun registration. I think it sucks. From a constitutional perspective, however, I’d be hard pressed to argue that the Second Amendment should be applied more rigorously than the First, the Fourth, the Fifth, the Sixth or the Fourteenth, to name only a few of the more prominent examples. From where I sit, all gun control is bad policy, but not all bad policy involving guns implicates the Second Amendment.
And before “strongly disagree[ing] that Illinois’ registration system is even handed,” you might want to research the basics. Illinois doesn’t even have a registration system. What it does have – the FOID – is a horrible idea, but it is administered evenhandedly, nothing like NYC let alone DC. If you want a FOID, you fills out the form, you sends them a photo and a check for $5.00, and (unless you’re in one of a few statutorily prohibited categories such as felons, illegal aliens, fugitives or loonies) you gets your FOID.