My restraint is better than thine

Posted on February 18, 2010 by Michael Reitz

An interesting little subplot played out in today’s Sieyes opinions. As discussed below, the basic question was whether the state law that prohibits minors from possessing guns is unconstitutional.

Justice Jim Johnson, in his one-vote dissent, wrote that the gun possession statute should be subjected to strict scrutiny—the highest standard of judicial review. In other words, the State would be required to show that the statute restricting a 17-year-old from possessing a gun is narrowly tailored to achieve a compelling governmental interest. He stressed the “fundamental nature of the right to keep and bear arms throughout our nation’s history and our legacy of extending that right to young people.” Using this analysis, Justice Johnson would have invalidated the law.

Justice Sanders’ majority opinion, however, does not go so far. Writing for the Court, he held that the Second Amendment is incorporated against the states via the Fourteenth Amendment, and the Washington Constitution explicitly protects the individual right to bear arms. Justice Sanders also discussed the appropriate standard of review, and declined to apply strict scrutiny or a less stringent analysis. But Justice Sanders noted that the Mr. Sieyes provided no argument or authority for finding the state’s gun restriction unconstitutional. Without adequate briefing from the parties, the Court declined to address the issue. Justice Sanders seemed to chide Justice Johnson for a lack of restraint: “The argument put forth by the dissent is no substitute for an argument briefed by opposing parties.”

Justice Debra Stephens takes the restraint refrain even further. While agreeing with the case's outcome, she wrote separately to criticize the majority opinion’s lengthy analysis of the constitutional issues at stake. “I would refrain from engaging in an extended exploration of the unsettled question of federal incorporation of the Second Amendment. Restraint is particularly appropriate here because the very question is currently pending before the United States Supreme Court.”

But Chief Justice Barbara Madsen plays the restraint trump card. She signed the majority opinion and added the notation “result only” to her vote. So while we see her position we have no clue as to her rationale.

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Seattle Times blasts Brown v. Owen ruling

Posted on March 9, 2009 by Michael Reitz

It’s good to be king lieutenant governor. That’s the conclusion from a Seattle Times editorial about last week’s ruling in Brown v. Owen.

Lt. Gov. Brad Owen, as president of the state Senate, refused to rule that the state’s two-thirds vote threshold for tax increases was unconstitutional. Sen. Lisa Brown took the question to the Supreme Court, which declined to interfere in what it called an “intrahouse dispute.”

The Seattle Times editorial says that the Supreme Court’s deferral places too much power in Owen's parliamentary role. “That's heady authority in a year when the lawmakers are talking about raising taxes to help close an $8 billion budget deficit.”

This editorial may exaggerate the lieutenant governor’s power. As Justice Fairhurst pointed out, any senator who disagrees with the president’s ruling on a point of order may appeal, and the members of the Senate can overturn the ruling with a simple majority vote. Furthermore, the legislature can—and has on several occasions—suspend the two-thirds requirement. Ultimately, the legislature can repeal the barrier to tax increases with a simple majority vote.

I agree that our checks-and-balances system requires the courts to police legislative abuses, and courts shouldn’t act as legislative rubberstamp committees. But this particular act of judicial restraint, in my opinion, was appropriate. (Note: Publishers of this blog filed an amicus brief in support of the two-thirds requirement.)

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