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Are Second Amendment Rights Protected by Americans with Disabilites Act (ADA)?
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| Blind woman learns to shoot |
An Georgia television station raised a question about whether a person who is legally blind should be allowed to exercise their Second Amendment rights. They asked if a person who is legally blind should be forbidden, by law, from carrying a weapon to protect themselves. From newschannel9.com:
Her father, Sheriff Warren Wethington, taught her how to shoot.He told Byfield he wants his daughter to be able to protect herself.
“The people who express their opinions that my daughter's not safe with a gun most likely have never held one, shot one or know anything about one,” Sheriff Wethington said.
“I'm not a threat to society. I'm a law-abiding citizen, and just because I'm legally blind doesn't mean I shouldn't have a permit to defend myself,” Bethany Wethington told Byfield.
Another person, referred to as Bunch, has a friend who does not want him carrying a pistol, because he cannot see well, even though he trusts him with a gun in his house.
I struck me that preventing a person from exercising their Second Amendment rights, because of a disability, might be a violation of the Americans with Disabilities Act (ADA). I looked at the ADA website for hints. From ada.gov:
§ 35.130 General prohibitions against discrimination
(a) No qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity.
That seems fairly straightforward. But how about the claim that blind people are not issued drivers licenses? First, drivers licenses are considered privileges, not a Constitutional right. Second, there is a portion of the ADA that addresses the idea that a disability could make someone dangerous. From ada.gov:
§ 35.139 Direct threat.(a) This part does not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others.
(b) In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
It seems that such an assessment would not be too difficult. We know that legally blind people have defended themselves, with firearms, in their homes. We know that it is possible for them to do so in public. The burden should be on public entity to show, in each individual case, that there is a direct threat that cannot be overcome with a reasonable accommodation.
It is not uncommon for people to be partially blinded in an initial attack, and still be able to defend themselves.
All of the legal cautions that are normally taught to people with normal vision apply to people who are legally blind, so I do not see anything special there.
I have not heard or read of any instances where people have been harmed because a legally blind person shot someone by mistake. This seems to simply be another form of prejudice about disabilities. I suspect that legally blind people are well aware of their limitations, and have spent far more time on determining how to function with those limitations, than people without them have. The National Federation for the blind issued a statement including this paragraph:
In recent days there has been much discussion about whether blind individuals should be permitted to own and/or carry firearms. The National Federation of the Blind, the oldest and largest nationwide organization of blind Americans, understands that guns are dangerous weapons and that anyone who owns, carries, or uses them must therefore exercise great care and sound judgment in doing so. Blindness has no adverse impact on a person’s ability to exercise due care and good judgment. State firearms laws must be applied in a nondiscriminatory manner to blind individuals. Recognizing that laws and regulations regarding the granting of permits to own and/or carry firearms vary throughout our country, our single position on firearms regulation is that a permit to own and/or carry a gun should not be denied to any individual solely on the basis of blindness.
I have not heard of ADA challenges to firearms permit laws that discriminate on the basis of physical disability; but I will not be surprised when one happens.
©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
Link to Gun Watch
Source: http://gunwatch.blogspot.com/2016/02/are-second-amendment-rights-protected.html
Felons Rights to Guns, and Yes even the Disabled.
It is a right of defense against that government, or any other person who might violate your rights to Life, Liberty, Property, or the right
to defend the above. By allowing criminals to be defined out of rights are secure, as it is the government… who defines crimes.
Citizenship is the right to have rights and not subject to good behavior of the citizen.
(Trop v. Dulles). In 1866, the rights were extended to all persons in the United States under the 14th amendment, and 1871 civil rights
act. (Currently under title 28, section 1343 USC, title 18 sections 241-245 USC, title 42, sections 1981-1985 USC
As a vested protected property interest, it is not subject to forfeiture by later congress, without becoming a bill of attainder. it was not
limited to the lawful citizen, even in the beginning.
All of our”founding fathers” were traitors by definition, and subject to execution. Yet we now define “felonies as anything subject to more
than a year in jail, even though the original definition required hard labor for infamous crimes, and even then, it was only capable of
being accomplished by a writ of attainder, (Blackstone’s commentaries on Laws of England)
The only means by which to make rights secure, was to secure them for all, and to punish the lawbreaker, by imprisonment or execution, not
to deprive them of the rights that were common, and belong to all citizens equally.
Under the 1871 civil rights act, it was recognized that the states would try to deprive rights under the color of law by declaring
felonies, and the punishment for those felonies (often involving curfews or other restrictions) was a deprivation of rights. it was made
a felony act for a reason, and one of the rights involved was particular mentioned in the Congressional records as the right to keep and
bear arms for self-defense, including against their own government… for no other could engage in acts under the color of law, statute,
ordinance, regulation, or custom to deprive them of their rights. It included officers both federal and state, judicial and executive.
And was so rarely enforced it was near forgotten about. See McDonald v, Chicago, 2010.
To be quite frank, if they are citizens, they retain ALL their rights of citizenship. The citizenship is the rights, not the title. If they
are not citizens, the governments have transgressed, as stripping citizenship for a crime is unconstitutional (Trop v. Dulles) as an 8th
amendment issue.
Further, stripping the rights from any person, under the color of any law, statute, ordinance, regulation, or custom in any state, territory,
district, or possession, is a felony act, punishable up to and including life in prison, or the death penalty under title 18, section 242
of the US code.
The supreme court has already found that this code ( under the 1866 civil rights act) was the reason for the establishment of the 14th
amendment, and that the 1871 civil rights act reestablished it, and placed all states on notice. ( McDonald v. Chicago) that the second
amendment was fully enforceable against the states.
The objective of the act ( Under Monroe v. Pape) was to prevent any group from depriving the rights of the minority, under any semblance of
any law, regardless of the color or other statutes.
The Supreme Court of the United States, 1866: “The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.”.
United States Supreme Court, Cruden v. Neale, 2 N.C. 338 May Term 1796: “…, every man is independent of all laws, except those prescribed by nature. He is not bound by any institutions formed by his fellowman without his consent.”
Murdock v. Pennsylvania, 319 U.S. 105: “No state shall convert a liberty into a license, and charge a fee therefore.” (Fishing, hunting, traveling by any means, arms, building ones home, etc)
Miller v. U.S., 230 F. 2d. 486, 490; 42: “There can be no sanction or penalty imposed upon one, because of his exercise of constitutional rights.”
Davis v. Wechsler , 263 US 22, 24.
“Where rights secured by the Constitution are involved, there can
be no rule making or legislation which would abrogate them.”
Miranda v. Arizona, 384 US 436, 491.
“The claim and exercise of a constitutional right cannot be
converted into a crime.”
Miller v. US, 230 F 486, 489.
“There can be no sanction or penalty imposed upon one because of
this exercise of constitutional rights.”