Quote of the day—On licensing a right

I was going to make the content of this image my quote of the day because of the application to I-1639:

LicensingLiberty

“No state shall convert a liberty into a license, and charge a fee therefore.”

(Murdock v. Pennsylvania, 319 U.S. 105)

“If the state converts a right (liberty) into a privilege, the citizen can ignore the license and fee and engage in the right (liberty) with impunity.”

(Shuttlesworth v. City of Birmingham, Alabama 373 U.S. 262)

Unfortunately, as near as I can tell, neither ruling contains the word “convert”. There are some phrases that one might extrapolate to what is seen above, but they are extrapolations.

Here is the phrase in MURDOCK v. PENNSYLVANIA (CITY OF JEANNETTE) which I found to be the best fit:

A state may not impose a charge for the enjoyment of a right granted by the Federal Constitution.

And in SHUTTLESWORTH v. BIRMINGHAM, (1969) No. 42:

“It is settled by a long line of recent decisions of this Court that an ordinance which, like this one, makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official – as by requiring a permit or license which may be granted or withheld in the discretion of such official – is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.” Staub v. Baxley, 355 U.S. 313, 322 . And our decisions have made clear that a person faced with such an unconstitutional licensing law may ignore it and engage with impunity in the exercise of the right of free expression for which the law purports to require a license.

Hence, I would like to suggest people not use the “quote” which has been circulating for some time now. Use an exact quote from the actual cases so you won’t get drawn into a debate over the meaning of the words you used versus what the courts actually said.

The actual words should be strong enough to make the case for our rights to be free of licensing restrictions. This practice should actually be far more effective since it avoids the deflection made possible by using words not actually found in case law.

9 thoughts on “Quote of the day—On licensing a right

  1. Shuttlesworth v. Birmingham should render unconstitutional all “May Issue” CCW laws. Sadly it’s never that simple dealing with the courts. Also
    Washington is in the Ninth Circuit Court’s jurisdiction, so we’re looking at a long road to the Supreme Court. The irony is that Shuttlesworth originated as part of the Civil Rights movement adored by the left, and will be opposed on the grounds that it doesn’t apply to anything other than peaceful protests. Grrrrr!

  2. Florida SC declared (as have a few other states I think) that CCW is not a “right”. The real kicker is that they ALSO declare that Open Carry is not a right either. The FSC ignored that one with hand waving, even though it was brought up during oral arguments. Can’t have it both ways, but getting them to agree to that has been the issue, especially when judges rule based on their personal agenda rather than the Constitution.

  3. Reading that second, actual quote, it reads much stronger to me than the paraphrase of it. Sounds like we here in WA might have a leg to stand on once this gets to court. I certainly hope so.

    • I hope so too. It won’t be easy. The 9th Circuit is unlikely to agree with us and the 2nd Circuit already said it wasn’t a problem for the gun laws of New York. It will depend upon the Supreme Court agreeing to hear it and a willingness to disrupt all the anti-gun licensing laws all over the country.

  4. I would bet it will hinge on the phrase “contingent upon the uncontrolled will of an official”. They will claim the enforcement isn’t “uncontrolled,” but that there are regulations/policies to be followed, therefore it’s “controlled.”

    As to the “can’t have it both ways” argument, the left ALWAYS wants it both ways, and usually gets it, because the so-called “conservatives” let them.

    • The mental health part of the background check is where the most “discretion” of the official will come into play. And with the initiative saying that they will have zero liability for any action they take, such as denying someone their rights, while in their official capacity will make this the “loophole” by which they can turn the right to keep and bear arms into nothing more than smoke and mirrors.

      When this goes to court they need to take with it “chilling effect” and all the other First Amendment verbage collected over the years.

  5. If the constitution and the previous laws around it meant anything, we wouldn’t be writing new ones all the time, while refusing to enforce the old.

    Therefore; the failure is seen in the process.

    If the founding principles were embraced, no more laws would be necessary, or even wanted. When the founding principles are not embraced, or even generally understood, we realize only too late that the one “law” which matters is that of intimidation and force. We’re seeing an emergent system of brute force disguised in the trappings of law and order, and those trappings grow Progressively thinner and more transparent.

    This is the “is is” era. Far from embracing the principles, we’re far from reaching a discussion on the principles. Instead we’ll spend our lives arguing over what the definition of “is is”.

    If nothing means what it means, “infringed” has no meaning, and even the strongest, most unambiguous words in the English language, “shall” and “shall not”, have no meaning, and no law, new or old, has any meaning either.

    All definitions must be flexible, or “living” and we are to prove that by killing them.

    Just as it matters not so much who votes but who counts the votes, neither does it matter what the laws say. What matters is who decides what the laws say, who decides to enforce them accordingly, and thus; who is most intimidated by whom.

    In short; if the Decalogue is rejected in favor of something “better”, we’ve already failed. Stop. Step away. Reset and try again; try to make better laws, fail again, reset and try again.

    Kipling had it figured out in 1919. What’s our problem?;

    “…As it will be in the future, it was at the birth of Man
    There are only four things certain since Social Progress began.
    That the Dog returns to his Vomit and the Sow returns to her Mire,
    And the burnt Fool’s bandaged finger goes wabbling back to the Fire;
    And that after this is accomplished, and the brave new world begins
    When all men are paid for existing and no man must pay for his sins,
    As surely as Water will wet us, as surely as Fire will burn,
    The Gods of the Copybook Headings with terror and slaughter return!”

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