[EL] More ID arguments

[Robbin Stewart]

Matt,

I'll take a stab at this.

Cases often turn on the standard of review, and then on the evidence.

Voter ID so far has been litigated as an issue of free speech and equal
protection under the federal constitution,and on the explicit right to vote
found in nearly every state constitution. In some areas of law the
standards are well-determined, at least one would think. In other areas the
standards are more difficult to pin down, what Hasen has called
indeterminacy.

The post-mcdonald 2nd amendment is in a state of indeterminacy. We don't
know what the standard of review is. This issue is likely to be central to
whatever the next gun rights case to come to the court will be.

Under the 24th A, there's a similar indeterminacy. There's been one case,
Harman v Forssenius, which wasn't exactly clear about what standard it was
using, although it seems stronger than the Anderson v Celebrezze test that
was used in Crawford.

In Crawford, the district and circuit courts erred in applying only the lax
review standard of Burdick v Takushi. This error was reversed at the
Supreme Court, although unfortunately there weren't five votes on this
point.

In Crawford, there wasn't enough of an evidentiary basis for plaintiffs to
argue for strict scrutiny under Norman v Reed,and the court abandoned its
prior use of strict scrutiny on the equal protection claim as in Harper.

There are dozens of older cases, not yet collected anywhere, under the
state constitutional clauses, but generally these cases announce results
instead of setting out a conceptual framework.

So Missouri, Georgia, Indiana, and Wisconsin can reach opposite results on
similar facts and similar texts, because when there is indeterminacy, the
personal preferences of the judges take on a larger role.

Heller and McDonald were game changers. Many of the judges are used to
operating in an environment where second amendment rights were not
considered fundamental. On the other hand, some judges, elected from rural
areas or operating under stronger state constitutional protection of gun
rights, are welcoming the chance to write strong opinions (like Emerson.)
It's going to take years for 2nd Amendment jurisprudence to settle down to
predictability. It took from 1910 to 1965 to get to the point where the VRA
could be passed,and 50 years later there are still disputes about whether
the VRA remains relevant and needed.

You ask whether ID to buy a gun is subject to attack. If you mean, will
this case win right now, probably not. If you mean, could someone write and
publish an article setting out a good argument, probably yes. Eugene
Volokh's articles provided a foundation for Emerson,and Emerson provided a
foundation for Heller.

I'm a conservative/republican/libertarian opponent of voter ID and most gun
regulation.
I support Hasen's suggestion of a thumbprint an an alternative to voter
ID,and I oppose his national ID card. We know from history such a card
wouldn't be limited to voting,and could be abused for authoritarian reasons.
Cordially, Robbin Stewart




On Tue, Mar 27, 2012 at 12:35 PM, Mathew Manweller <ManwellerM at cwu.edu>wrote:

>  Rick,
>
> I have been following your numerous posts about your objections to voter
> ID laws. I have a (somewhat) hypothetical for you that I would be
> interested in your response.
>
> The Second Amendment guarantees an individual's right to own a gun (or at
> least under the Heller and McDonald decisions). This guarantee is actually
> more direct than the "right to vote" which doesn't actually exist--only the
> right not to have your vote denied on a few basis (race, gender, age, etc).
>
> So, are laws that require that one show an ID before they can purchase a
> gun also subject to attack because they would disproportionately fall on
> minority groups? It seems all the same arguments would apply.
>
> Regards,
>
> Matt Manweller
>
>
> Central Washington University
> Assoc. Professor of Political Science
> manwellerm at cwu.edu
> 509-963-2396 >>> Rick Hasen <rhasen at law.uci.edu> 3/27/2012 8:06 AM >>>
>  “Why Do Liberals Fear Discussing the Truth of Voter ID?”<http://electionlawblog.org/?p=32257>
>
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