Let’s consider everybody’s most cherished entitlement: Fundamental Right X (“FRX”). Suppose FRX is guaranteed by the Constitution, as confirmed by the Supreme Court. But local policymakers aren’t big fans of FRX. They think it disrupts public safety, conflicts with their cultural norms and moral convictions, and even poses an existential threat to life itself. The thought of people exercising this right offends every fiber of their being and sends them all writhing in disgust.
So, in the interest of protecting everything they hold dear, these local officials devise a clever plan. Instead of unlawfully outright denying people’s entitlement to FRX, they start imposing procedural hurdles, protocols, and prerequisites. These burdens aggregate to form such an obstacle that actually exercising this theoretical right becomes a practical nightmare, even as the right stands fortified in Supreme Court lore. Is that fair? Is it constitutional? Is it American?
By now I’m sure you’ve guessed what the real FRX must be. So, be my guest…
Hold that thought for a second, and bear with me while I shift gears. Most of you have heard me say a thousand times how ecstatic I am about Tennessee’s new campus carry law. It allows full-time faculty members at public universities (i.e., Yours Truly) to carry concealed on campus if they have a valid permit. Under the statute as enacted, the only requirement is that carriers must “provide written notification to the law enforcement agency or agencies with jurisdiction” over the campus. Yes, that sounds a lot like registration, but at this point I’ll take what I can get.
In an attempt to be proactive, I went ahead and sent my written notice last week. In response, I got an email from Police Services saying something along the lines of, “Hold your horses, lady.” Then, yesterday at 4:30 p.m. (close of business), a campus-wide email went out, listing oodles of newly-minted hoops for permit-holders to jump through if they ever hope to carry on campus. Perhaps the most interesting is the requirement that I make an appointment with Police Services to go and sit for an interview in person, sign a document swearing absolute allegiance to internal campus policies, fill out an “Intent to Carry” form, and then wait indefinitely while Police Services verifies my eligibility, at which point I will receive an email confirmation. Do they expect me to forego concealed carry until I hear back from them, no matter how long it takes? Must I sign this thing even if it conflicts with the statute?
Oh, and since my university has tens of thousands of students over multiple campuses, the administration has determined that the “agency or agencies with jurisdiction” must include not just Campus Police but also another five neighboring police forces. So, each of those agencies will get a copy of my “registration.” <Sarcasm> But don’t worry; the statute says that info is strictly confidential. </sarcasm>
What’s to stop the university from piling on additional requirements? What if they decide that permit-holders have to wear a pin on their lapel that secretly identifies them as concealed carriers? What if they are required to have their campus ID cards encoded with a digital flag to signify their permit status? What if the university institutes a fee for this eligibility “interview”? <sarcasm> Oh, it wouldn’t be a fee to carry. No, it’ll just be a harmless, unrelated administrative fee to help cover the incidental overtime required for all those one-on-one interviews. </sarcasm>
Or maybe during this interview they’ll ask me to “Spell backwards, forwards” or “Write right from the left to the right as you see it spelled here.”
While I am reluctantly willing to cooperate under the circumstances, my great concern is the slippery slope. I don’t want the powers-that-be to circumvent the law by polluting it with regulatory red tape. A right deferred is a right denied. This became crystal clear with literacy tests and poll taxes. And yesterday, the Supreme Court reaffirmed the same notion with respect to abortion. Apparently, the Lone Star State had gotten a little too heavy-handed with its procedural regulations for abortion clinics. In a 5-3 decision with a serendipitous name (Hellerstedt), the Court yet again forbade any excessive or pretextual protocols that would “constitute an undue burden” or “place a substantial obstacle in the path of” people seeking to exercise a constitutionally guaranteed right.
Since there tends to be a lot of overlap between the gun community and the pro-life community, I spent much of the day getting Facebook pings from pro-gun friends who were eager to trash this pro-choice SCOTUS ruling. In my humble opinion, this is dangerously shortsighted. American constitutional standards are the same across the board, regardless of the legal issue at stake. In the universe of fundamental rights, we don’t get to cherry-pick which ones the Court will protect while letting others be disemboweled by technicalities. Many may not like the ultimate implications of the abortion ruling, but we cannot afford to overlook the utility of its reasoning for Second Amendment advocates. Whether it’s the right to vote, or the right to bear arms, or the right to end a pregnancy, SCOTUS guards all fundamental rights from collateral attack. The issue is not whether everyone likes the particular right in question. Instead, the issue is simply whether it’s a fundamental right or not.
I’m not a fan of abortion, and I’m certainly not advocating that anyone else should be (although I’m also not in a position to judge, since I’ve never personally worn those shoes). However, you won’t find me spouting off on social media about just how abominable the Hellerstedt decision is. Instead, I’m stashing the opinion in my back pocket and keeping it handy for the day when my university gets a little too heavy-handed with its procedural regulations for campus carry. Thanks to Hellerstedt (and its first two syllables), I’ve now got a lot more legal ammunition work with in the event that my beloved employer decides to step over the line, like Texas did.
14 comments on “Abort! Abort!”
From what Instapundit has posted, UT Knoxville hasn’t been as ham handed on campus carry (so far at least) as Memphis U seems to be. And while I’m not an abortion fan, you’re right that Supreme Court decisions are transportable from case to case it this is a handy one to file away.
Interesting! I’ll check out Instapundit…
This is somewhat similar in substance to a blog I am releasing soon, myself . Great piece, T!
Thanks, Ben! Do let me know when your post is published. I’d love to read it! -tgj
Unfortunately, I didn’t strike while the iron was hot…as a result of more recent current events taking over the headlines, I’ll be delaying the release of the blog for a time when the issue of protected rights is back in the scope of the public eye. I will be sure to let you know when it’s released.
Another totally transferable PEARL from the Hellerstedt decision: “Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations.” Whole Woman’s Health v. Hellerstedt, No. 15-274, 2016 WL 3461560, at *21 (U.S. June 27, 2016). Thank you, Justice Breyer.
spring breeze, that’s what i love about your blog! you have the ability to see through the smoke and mirrors and come up with a workable strategy. the never ending administrative requirements are a definite threat to our freedoms and are always sold as “reasonable,common sense” regulations that eventually pile up to become, in effect, restrictions. i do believe that is the real goal. blog on!
You are too kind, Roger. 🙂 Thanks for reading!
I’ve just become a recent lurker and find your writings very thought provoking and worth responding to. I have come to the conclusion that when starting a discussion of this type that the first thing we need to do is define the terms we are talking about, so that everyone is starting from the same point. First of all define a “right”. From my reading and studying I have come to the following definition; the exercise of a “right” compels nothing from anyone else, either proactively or retroactively. Any compulsion involved and it is no longer a right. Not health care, food, nor shelter can be “rights” because they require the compulsion of someone to work on someone else’s behalf. The right to keep and bear arms has no compulsion on anyone else, neither does free speech require any compulsion for one person to another. I think that this basis is what I find missing in most discussions of “rights” vs. wants or desires or even needs.
Hi there! Welcome to the party! Thanks for this perspective. I definitely agree that touchy subjects are always better approached with a common set of baseline definitions so that everyone at least start out on the same page.
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