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The Erosion of Constitutional Liberties: Voter ID Laws and Gun Restrictions

JURIST Guest Columnist Katie McLay, University of Pittsburgh School of Law Class of 2014, is an officer for the University of Pittsburgh School of Law's Federalist Society. She compares and contrasts the current controversy surrounding two salient constitutional issues: gun control and voter ID laws...

Over the past few weeks, the news cycle nationwide — and certainly within my home state of Pennsylvania — has been dominated by limited topics. Two of those topics are of direct constitutional relevance: voter ID regulations and restrictions on gun rights.

Recently, the Pennsylvania General Assembly passed a law that would require voters to present one of several prescribed forms of identification in order to be issued their ballot for the November election. Legal scholars, politicians, as well as the public, were infuriated by the law's passage and they have closely followed subsequent litigation.

In Second Amendment discussions, it was the tragic shootings in Aurora, Colorado, that sparked national debate about the propriety of gun possession and the constitutional right of the private individual to carry firearms. The constitutional implication for both issues seems relatively obvious. Pennsylvania voters argue that their right to vote is or will be unduly burdened. Advocates for Second Amendment liberties recall District of Columbia v. Heller and McDonald v. City of Chicago, two recent US Supreme Court cases that explicitly recognize the right of the individual to own and carry firearms.

People are crying out in defense of constitutional liberties in response to both occurrences, but nearly all of those people are upset about the loss of only one or the other. For example, the American Civil Liberties Union (ACLU), an organization involved in challenging voter ID laws in several states, is no fan of expansive Second Amendment liberties. Conversely, many of the legislative leaders who supported the new voter ID law in Pennsylvania also either passed or amended legislation to expand Pennsylvania's castle doctrine. It seems that support of voter ID laws and support of less stringent gun regulation are mutually exclusive beliefs.

But why?

The Pennsylvania legislature may have had many potential rationales for enacting the voter ID law. These reasons include cutting down on voter fraud (the existence of which, under the rational basis test, need not be proven) and ensuring that only US citizens can participate in free and fair elections. The judiciary may even recognize Rep. Mike Turzai's now famous admission that the law will allow presidential candidate Mitt Romney to win the state as a rational reason. After all, the courts have recognized equally corrupt rationales in the past. In 2004, the US Court of Appeals for the Tenth Circuit recognized in Powers v. Harris that protection of one business to the detriment of others by the government was a legitimate governmental interest.

Let us assume for a moment that the rationale behind the law was the assurance that only US citizens would be allowed to vote. It seems reasonable enough, especially with the long-standing national debate about immigration. What we have now is the requirement of proof that an individual is legally eligible to vote in order to actually exercise that right. Corrupt motivations aside, opponents of the bill should struggle to take issue with this rationale. Consider, again, the mutual exclusivity point.

Post-Aurora, gun control proponents had new fodder for their vehement advocacy of restrictions on gun ownership. Rep. Ed Perlmutter, the congressman from Aurora, immediately pledged a revival of the Assault Weapons Ban. The nation's preeminent anti-Second Amendment organization, the Brady Campaign, asked supporters to sign a petition agreeing that the shooting was "yet another tragic reminder that we have a national problem of easy availability of guns in this country." Note, as many have, the firearms restrictions in place in Aurora at the time of the shooting.

In my home state of Pennsylvania, citizens are required to jump through a few hoops in order to exercise their Second Amendment liberties. To purchase a gun, they need to submit to a background check, register the firearm and — of particular interest to the discussion — present state-issued identification and provide a valid Social Security number. In order to obtain a concealed carry permit, citizens must present state identification, an application fee and two character references before submitting to another background check.

Additionally, they must verify that they are legally eligible to exercise the rights provided under the Second Amendment. By submitting to a background check, they also verify for the government that they are fit to own and carry firearms and would present no danger to society. Such danger may be indicated by a history of mental illness or a criminal background. Neither the US Constitution nor the Pennsylvania Constitution states that only the socially or mentally fit are permitted to carry. In fact, Article 1 § 21 of the Pennsylvania Constitution provides that the "right of the citizens to bear arms in defense of themselves and the State shall not be questioned." In Pennsylvania, the legislature has put qualifiers on our right to bear arms.

Why, then, are Pennsylvania citizens up in arms (no pun intended) when the legislature puts qualifiers on other constitutionally guaranteed liberties?

The US and Pennsylvania Constitutions both protect the rights of the individual to vote in a free and fair election. Like many other rights defined by the constitutions, however, the legislature is empowered to place restrictions and qualifiers on those rights no matter how clearly they are defined. It has been done with the Second Amendment's right to bear arms, the First Amendment's right to free speech (time, place and manner restrictions) and now with the right to vote. One political philosophy or party is not more correct than another. All are to blame for the constant and often subtle erosions of individual liberties in our state and our country.

Individual liberties are not political issues and they should never be advocated by one side either according to the ebbs and flows of the political process or only to advance an idea of how society should look. The Constitution is — and should continue to be — blind to preference and political philosophy. The US Supreme Court has been clear that the right to bear and keep arms is guaranteed in by the Second Amendment. But our legislatures and the public that voted for them seem willing to accept restrictions on that right that are far and above what is written in the text of the Constitution. Once one right is restricted based on possession of valid identification, the door is opened for others to be so restricted.

Remember also that the Second Amendment requires that a fitness standard is met in order to exercise those constitutional liberties recognized by the US Supreme Court. Here's hoping that this one door stays closed. The fact is that if we accept restrictions on one of our explicit constitutional liberties, then we accept restrictions on them all.

Katie McLay is a JD/MBA candidate at the University of Pittsburgh School of Law and Katz Graduate School of Business. She is a member of the Journal of Environmental and Public Health Law. She holds a Bachelor of Arts in Communication Studies and Political Science from Grove City College.

Suggested citation: Katie McLay, The Right and Left's Erosion of Constitutional Liberties: Voter ID Laws and Gun Restrictions, JURIST - Dateline, Sept. 19, 2012, http://jurist.org/dateline/2012/09/katie-mclay-voter-ID-guns.php.

This article was prepared for publication by Elizabeth Hand, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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