The Second and the Twenty-Fourth

You may have seen this meme floating about (h/t Mare):

Via Facebook/Join the Coffee Party Movement

Via Facebook/Join the Coffee Party Movement

Rand Paul and Ted Cruz both agree criminals and terrorists should not have to show an ID to buy an assault rifle because it is an infringement on their constitutional rights.

But Rand Paul and Ted Cruz both agree a 92 year old senior trying to vote without the proper ID is a threat to our democracy and could destroy our free election system.

Leaving aside the atrocious font, the argument still isn’t quite right. It offers sort of a caricatured summary of the argument in favor of voter ID laws, and doesn’t note the constitutional implications of requiring people to get an ID that they would not otherwise need solely for the purpose of voting. That’s pretty much a poll tax, which is pretty unambiguously unconstitutional. Anyway, here’s my own caricature of the usual response to this meme from the pro-voter-ID-law crowd:

  1. Say something about 2nd Amendment.
  2. Ignore argument about 24th Amendment.
  3. Stress importance of preventing voter fraud. Ignore near-total lack of evidence that voter fraud even occurs.
  4. Express personal incredulity that anyone in 21st-century America wouldn’t have an ID.
  5. Ignore evidence that many people do not.
  6. Make additional statements about the 2nd Amendment.
  7. Take umbrage at being called a racist. Ignore that no one actually said that in this specific thread.
  8. Make vague statements about “liberty.”
  9. Use a sentence with the word “libtard.” Exit comment thread.

Did I miss anything?

The above list originated in comment on a Facebook post. In response to the question “When should you be required to present ID for a civil or constitutional right?” I posited the following:

As an oversimplified answer, when there is a risk or danger to the public. A single gun can be used to harm the public in a way a single vote cannot. The statistics on the danger to the public presented by people with guns (because guns don’t kill people…) are pretty clear, while the figures on in-person voter fraud do not indicate that it is a problem in need of anything like the measures presented by voter ID laws.

Furthermore, the two rights (guns and voting) present different practical considerations.

The right to bear arms, as set forth in the Second Amendment and interpreted by Justice Scalia in the Heller case, does not imply a right to free arms–i.e. the government might not be able to completely prevent a person from owning an AR-15, but it also cannot require gun dealers to provide them free of charge to the public. A gun dealer can charge $1,500 and not violate anyone’s rights. Even Scalia said that the 2nd Amendment does not prohibit reasonable regulations on gun sales or gun ownership with regard to public safety and related issues.

The right to vote, meanwhile, cannot be contingent on payment of a “poll tax” under the 24th Amendment. Voter ID laws effectively require some people to obtain an ID at their own expense for the sole purpose of voting. Even the free voter IDs offered by the state aren’t actually free for everyone, since they require a birth certificate or other documentation, not to mention travel costs and time that may seem insignificant to some, but not others. Multiple courts have held that these requirements amount to a poll tax, since they are expenses incurred for the sole purpose of preserving one’s right to vote.

For people who claim to love the Constitution, the conservatives who support voter ID laws are awfully blasé about the 24th Amendment.

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

District of Columbia v. Heller, 128 S.Ct. 2783, 2816-17 (2008) (J. Scalia writing for the majority).


3 thoughts on “The Second and the Twenty-Fourth

  1. Just found your sight and am thoroughly enjoying it. I’d like to play the ‘Poll Tax’ ‘not Poll Tax’ game. If there were a way to completely eliminate the expense of the ID. And we will have to take this to a pretty ridiculous level to get there but lets say that during the next census a federal employee comes to your home, verifies who you are, gives you a permanent ID that couldn’t be lost or stolen or transferred and registers you to vote all at once. Would there remain any reason to oppose the voter ID?

    • Speaking hypothetically, perhaps not. That sounds like an expensive proposition, though. A national ID system would probably fix some/all of the concerns, but that’s not without its problems and opponents. (Note that I am not saying I favor a national ID system, just that it’s an option.)

      • During this whole debate a couple things have bothered me. First is this odd notion that someone who can go to the trouble of registering can’t go to the trouble of getting an ID. Now the argument that ID’s cost money and some may not be able to afford them seems forced. But that doesn’t mean it isn’t true. Never the less it’s something that seems awfully easy to fix. The other is the way it’s played out between the two main parties. One insists that fraud does take place and wants to come up with a solution. The other swears there is little to no fraud going on but will spare no expense trying to prevent the first from stopping this non existent problem. That is just plain fishy. The solution that would piss just about the entire country off (which may be why I like it) would be to tag every citizen the way we tag pets. A subdermal RFID tag with your name and social security number coded into it would do the trick. You would still need to register in the district you vote in but after that you need do nothing more than let them pass a wand over your arm when you go to the polls.

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