The Bar Exam & The 2nd Amendment: Unrelated Examples Of Swallowed Constitutional Rights.
This post is going out on a limb. I am probably crazy for writing it, but I am a wild man with too much time on his hands at this particular moment. Someone, however, has to say it.
The licensing process for lawyers – the bar exam – and the licensing process for gun owners share an unusual commonality: the government’s regulatory interest has swallowed the constitutional rights at stake.
Almost everyone understands that the Second Amendment guarantees an individual’s right to own a gun. At the same time, most people recognize that governments have legitimate interests in preventing dangerous individuals from acquiring so-called instruments of destruction. What almost no one realizes is that the government’s interest has swallowed the Second Amendment right at stake.
You want a gun? Well, you need to go the police, allow them to fingerprint you (a search), run a background check on you (another search), prove that you are of good character, and provide a satisfactory reason on why you want/need a gun.
Screw up on one aspect? Too bad. You’re out of luck. All the while, the government does not need to prove anything while it denies you access to a gun because you are not “permitted” to own one. In other words, the law presumes that you are unfit to own a gun until you prove otherwise.
The licensing process for lawyers is the same. Guised as a load of malarkey that lawyers occupy some pseudo-elevated place in society as “officers of the court,” the lawyer licensing process is more invasive than a gun application. You have to reveal every job you ever had along with many details about it, every place you’ve lived for a certain number of years, provide fingerprints in some jurisdictions (a search), submit to a background check (another search), a credit check (yet another search), and many more details. On top of it all, you have to pass a two-day exam that’s supposed to test your competence but is nothing more than a cash grab and a hazing ritual designed to protect the inefficient and ineffective members of the bar from competition.
Flub the screening process or struggle with an exam not reflective of practice? Too bad. You’re out of luck and a couple thousand dollars. The common denominator with guns? All the while, the government does not need to prove your incompetence or that you are otherwise unfit to practice law.
American constitutional law takes this approach more often than you think. Apart from the First and Fourth Amendments, there are no presumptions in favor of your rights, and the First and Fourth Amendment presumptions have been gutted in favor of government. The burden lies solely with you to prove that you are deserving of your rights and that you should be protected in exercising them. In most cases, the government bears no burden of proof until you have rebutted the presumption against your rights and erected a presumption for the government to rebut.
While the lawyer licensing process does not enjoy the protection of an enumerated constitutional right, it falls under the unenumerated liberty protected by the Fourteenth Amendment. Some scholars term it the right to work. I call it the right to pursue an honest living. The courts do not want to hear about it.
Rights, however, are stubborn and persistent. They will always raise their heads in a constant struggle against tyranny. An intellectual inspiration of mine, Professor Randy Barnett, has argued that the Constitution establishes a presumption of liberty rather than a presumption of constitutionality regarding the government’s regulations. American courts have missed Professor Barnett’s memo for more than a century now. The law does not favor your constitutional rights, and it likely won’t for a long time, if ever.
Still think that I am crazy for comparing lawyer licensing to gun licensing or that I am just a complaining millennial? Check out the rest of your constitutional rights, and get back to me. Good luck….