NK asks, I presume rhetorically, if every stupid law is unconstitutional. This brings me to a topic I’ve been meaning to blog about since the McDonald decision: was the reasoning of the Alito plurality really that bad, or even all that different from Justice Thomas’s position? In other words, is a law forbidding law-abiding residents to exercise one of their constitutionally protected liberties really any more consistent with this:

No State shall …. deprive any person of life, liberty, or property, without due process of law[.]

Than it is with this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]

And if so, why? Because it would seem to me that any law that arbitrarily deprives citizens of their freedom, without so much as the pretense that they’ve committed any crime (let alone due process to determine whether or not they have) is every bit as problematic under the Due Process Clause as it is under the Privileges or Immunities Clause – unless you think there’s some reason why freedoms secured by the Constitution are properly described as “privileges or immunities” but not simply as “liberty.”

Tell me why I’m wrong.

Gaston County is considering a 30-day waiting period on marriages performed by magistrates, unless the couple can show they’ve received premarital counseling. That strikes me as a very reasonable idea, particularly if Kinston Free Press’s editorial against it is the best its opponents can do:

The proposal originated from a pro-marriage advocacy group in Gaston County and is based on the premise that counseling will help couples, when faced with marital struggles, work through their differences rather than take them to divorce court. Fewer divorces will mean fewer single-parent families, and two-parent families are generally good for raising children.

Ah, it’s intended as a pro-marriage measure, rather than a deterrent to the same (think waiting periods on guns?). In that case, surely it’s the duty of every good newspaper to oppose the measure vociferously. Oh wait, there’s more:

It’s important to note that while the idea has been floated, no such bill has been introduced in the General Assembly. And the idea that’s floating around would have the program initially operate as a pilot program in Gaston County.

However, pilot programs have a way of spreading like wildfire. Once they catch on in one county, they tend to spread across the state.

Translation: the real problem with this proposal is that it might actually, like, work.

We’re not here to argue against couples getting counseling or lots of advice before getting hitched. But we don’t think it’s wise for the government to make such counseling a stipulation for getting married by a magistrate.

Ah yes, the old “don’t let big government go paternalistic on you” argument against government imposing its own restrictions on a government institution. In a state that requires divorcing couples to wait an entire year before they can get out of a bad marriage, is it that much to ask that they obtain counseling or wait 30 days before rushing into one in the first place?

The waiting period wouldn’t apply to weddings officiated by ministers. The thinking there, legislators say, is that ministers won’t join a couple in matrimony unless he or she has counseled the couple first.

While some ministers do make premarital counseling a practice, not all do.

OK, then. Let’s make the requirement apply to religious and non-religious weddings alike.

Having such a requirement could put kinks in couples’ wedding plans.

Correction: having such a requirement could put kinks in foolish and immature couples’ impulsive wedding plans. It imposes no kinks whatsoever on the plan of any couple wishing to remain engaged for one whole month – or even on those who don’t but are willing to obtain premarital counseling.

Making getting married more complicated could likely lead to more couples going to other states — states with less-restrictive marriage laws — to get married.

Here we find the limits to the domino theory. What gets tried on a pilot basis in one NC county will spread like wildfire to the other 99 counties within the state, but will stop in its tracks as soon as it hits a state line. If there’s one thing worse than slippery slope logic, it’s the “slippery to a point, after which it will magically cease slipping at all” logic employed here. Besides, if the real problem is other states’ laws not being restrictive enough for our tastes, the answer is to change our marriage law so as not to recognize out of state marriages between NC residents that do not comport to our standards. We don’t let residents get divorced in other states or countries, so why should marriage be any different?

Good intentions are behind the idea to impose the waiting period for people getting married by magistrates. But good intentions don’t always make good law.

No, but last time I checked, they didn’t automatically make bad law, either. If the worst thing its opponents can say against this proposal is that it is motivated by good intentions, I think it’s well worth a try.

Me no like gun shows. Gun shows legal. Loophole!

Here are pics of Alan “Mr. Second Amendment” Gura and Paul Helmke dba Brady Center to Prevent Gun Violence, soon to face off at the Federalist Society. More later.

Here’s a capital idea. Since everyone knows that black people are generally stronger than white people, let’s pass a law making simple assault one thing, and “assault on a white boy” another. The statute would read like this:

(a) Any person who commits a simple assault or a simple assault and battery or participates in a simple affray is guilty of a Class 2 misdemeanor.
(b) Unless the conduct is covered under some other provision of law providing greater punishment, any person who commits any assault, assault and battery, or affray is guilty of a Class A1 misdemeanor if, in the course of the assault, assault and battery, or affray, he assaults a Caucasian person, he being a person of African descent of at least 18 years of age.

No constitutional problems there, right? After all, nobody is being punished simply for being black, only for assaulting other people, which you’re not supposed to do, anyway. So surely a law like this would pass constitutional muster. It wouldn’t, of course, and rightly so. However, G.S. § 14-33(c)(2) sure comes close – just substitute “female” for “Caucasian person” and “male person” for “person of African descent,” and there you have it.

OK, you say, but surely this one of those crazy laws that just sits on the books, right up there with that one about cussing boisterously on public streets in counties other than Pitt or Swain. No one really gets charged under such a blatantly unconstitutional law, do they? Yes, they do.

It’s a trap, folks. Speculating on Elena Kagan’s sexuality is a no-win. Attempting to out her, makes it look like you look like a complete douchebag if you turn out to be wrong, and even if you’re right it makes you look like the Spanish Inquisition for caring – only this time, they do expect the Spanish Inquisition. Just don’t go there. We already know where she stands on gay rights, namely fanatically pro, even to the point of endorsing an attack on the Solomon Amendment so frivolous that all eight participating Justices, which included all four liberals, rejected it. Where she stands on issues like that is our business. Whether she is gay or not herself, or whether she now lives in the world’s most transparent closet, is not.

UPDATE: The original draft said all four liberals currently on the court rejected Kagan’s position on the Solomon Amendment. Of course that is wrong, as Justice Sotomayor was not on the court yet.

Howard Bashman reports that the Obama Administration has unofficially promised to appoint Elena Kagan to replace John Paul Stevens and become the third woman to serve as a Supreme Court Justice. I hereby offer a free gram of cocaine^* to the first person who can persuade me as to how Ms. Kagan, if confirmed, would be the third woman on the Supreme Court. Possible theories:

1. Sandra Day O’Connor wasn’t really a Supreme Court Justice.
2. Ruth Bader Ginsburg isn’t really a woman.
3. Sonia Sotomayor … um … you tell me.

^*Offer void where prohibited by law.

Once again, the California Supreme Court has been called upon to decide if the Constitution is unconstitutional. At least this time they picked the right Constitution, but…

Sideshow Bob Hege and his lesser-known colleagues got trounced on Tuesday, but the push for Senate Bill 351, which would ban felons from running for sheriff in the future continues. What I want to know is, why are they only considering a ban on felons serving as sheriff? Better we should ban felons from holding any elective office. Show me a convicted felon who should ever be allowed to serve as a legislator, a judge, a governor or what have you, and I’ll show you a felony that shouldn’t be a felony. Fix that instead.

This is only the latest of a series of “don’t throw out too much of the bathwater” reforms that seem to be the rule rather than the exception in this state. Here are some other examples of reforms enacted as though the General Assembly’s heels were stuck in tar:

1. In 1995, we went shall-issue, allowing a person with a concealed carry license to carry anywhere he wants, except where he can’t, which is almost anywhere in the state.
2. That same law exempted CHP holders from our infamous, Jim Crow era law requirement that any prospective gun purchaser obtain a discretionary permit from his local sheriff to purchase the gun, but did not reform or otherwise amend the permit requirement itself. So while I, as a CHP holder can walk into any gun store from Asheville to Nag’s Head and walk out with all the guns I can afford, my next door neighbor can’t purchase any guns at all without visiting the local sheriff first, in person, and asking him to please, please, pretty please give him a permit to buy one gun. And the sheriff will have nearly unfettered discretion to turn him down.
3. All but seven U.S. states have had the good sense to abolish the common law tort of alienation of affection. North Carolina is easily the best known, and probably the most egregious, example of the “but seven.”^* In 2007, Clemmons dentist Kirk Turner killed his estranged wife Jennifer, a killing prosecutors argued was motivated in part by an alienation of affection suit Jennifer had filed against his girlfriend. Last August, Turner was ultimately found not guilty by reason of the jury’sSBI’s insanity. The General Assembly responded not by finally the rest of the civilized world in abolishing the infamous tort, but merely by restricting to conduct that occurred prior to separation. The current suit against the girlfriend goes forward, and if the next alleged homewrecker so much as winks at the next Kirk Turner one day before he moves out, that case will go forward too.
4. North Carolina has one of the most oppressive annexation laws in the country. Residents of an area targeted for annexation, who may have deliberately chosen that property because they did not wish to live in a city, have no voice in the annexation process at all. The leading “reform” bill, House Bill 524, purports to address this by allowing a referendum, but only if a petition is signed by 15% of the registered voters in the combined area of the existing municipality and the area targeted to be gobbled up by it. Even if that insurmountable hurdle is miraculously met (bear in mind that 15% of the population of the combined area will often exceed 100% of the population of the targeted area), the referendum itself calls for a vote of the combined populations, as well. And even this illusory “reform” remains highly controversial, only barely passing the House last year. The real reform bill, SB 494, doesn’t appear to be going anywhere.
5. As one of those quaint states that still have dry counties, it should come as little surprise that we have socialized alcoholism too. Lately our government-run pushers have been plagued with scandal, so our governor has kicked around the idea of … um … trying a baby form of privatization most ABC customers won’t even notice.

Given this long track record of preserving bath water on the off chance there’s a baby somewhere, I guess I should be thankful that the current proposal would cover all felons, rather than just the ones who committed their felonies in the course of their duties at the very office they now seek, and then only if they previously put prisoners in pink cells, slapped cheesy front plates on all of their cop cars, filmed reality shows and generally acted like all-purpose douchebags before they became convicted felons.

^*The other “but six” are Hawaii, Illinois, Mississippi, New Mexico, South Dakota and Utah. By way of comparison, Mississippi finally got around to abolishing slavery in 1995.

UPDATE: Two commenters (albeit with a shared IP) argue that I’m wrong about the Turner case, and that Kirk did indeed act in self-defense. Admittedly, I haven’t followed the case nearly as closely as they seem to have done, so I can’t rule out the possibility that they’re right. I don’t believe, however, that this affects my greater point about alienation of affection suits in general, or the one against Turner’s girlfriend in particular. For one thing, I think the odds of the lawyers for Jennifer’s estate advancing the theory that their own client was a would-be murderer (or at least a would-be Lorena Bobbitt) are extremely remote. For another, no matter who you think the aggressor was, it’s plain as day there was no love lost between the Turners, and therefore, no affection for anyone else to have alienated.

UPDATE x2: Given the more recent reports about the State Bureau of Investigation’s grossly unscientific behavior in this case and others, I hereby retract my allegation that the Turner jury was insane. Any case that depended too heavily on “evidence” produced by that back of Mike Nifong wannabes has reasonable doubt written all over it.

By now everyone under the sun has weighed in on Arizona Senate Bill 1070 but my initial take is that there may be less than meets the eye. In particular, the part about demanding “papers” from U.S. citizens of Hispanic origin (real or perceived) is wee bit hyped. Per Arizona Revised Statutes 11-1051(B), the “papers” needed to create a presumption that you are not an alien unlawfully present in the United States consist of any of the following:

1. A valid Arizona driver license.
2. A valid Arizona nonoperating identification license.
3. A valid tribal enrollment card or other form of tribal identification.
4. If the entity requires proof of legal presence in the United States before issuance, any valid United States federal, state or local government issued identification.

Call me good-German, but I almost never leave home without my wallet, which in turn contains a valid driver license. Are Zonies all that different? I mean, I know they like to carry guns without permits, but who drives without one? Or even walks to a bar unprepared to get carded. Maybe we should have a new civil rights campaign for 17 year olds whose civil rights are violated by bars who won’t serve them without seeing their “papers.” But if you are a U.S. citizen or lawful resident in Arizona who doesn’t have a driver license or state ID, and don’t want to carry your passport everywhere you go, consider getting a permit to carry a concealed weapon. They won’t be much use for carrying a concealed weapon anymore (except in restaurants and bars) but they will provide easy proof to the cops that you’re legit. Such permits are also a wise investment for residents of Hawaii, Maine, Michigan, New Mexico, Oregon and Washington, the six bonehead states that issue driver licenses to illegals willy-nilly,^* making their licenses worthless as proof of lawful residency per criterion #4.

Will the new law be upheld? That’s a good question. Should it be? That’s a better one. I will state unequivocally that it should not be struck down on any of the bases the Orwellian named ACLU or MALDEF are likely to advance, but I do think there is a legitimate federalism concern here. Can a state effectively do the federal government’s job for it, or by so doing, has it encroached on the powers of the federal government every bit as flagrantly as the federal government routinely encroaches on the powers of the states? And if so, do two constitutional wrongs make a constitutional right? I don’t know. Here’s hoping Congress will get off its [symbol of Democratic Party] and preempt the issue with new federal legislation that just “happens” to look a lot like Arizona’s.

Lastly, I should note is that the popular snark over a recent MSNBC headline stating “Law Makes It a Crime to Be Illegal Immigrant” is misplaced. As anyone who has made it through at least one semester of law school without flunking out can tell you, the words “crime” and “illegal” are hyponymous, not synonymous. In other words, all crimes are illegal, but not all (nor even most) illegal acts are crimes. As Patterico explained some time ago, 8 U.S.C. 1325(a) makes illegal entry (or attempted entry) by an alien a crime, but merely being here illegally is a civil offense, even though it may be a result of a past crime. I stress “may” because not all illegals entered the country illegally; some came legally and overstayed their visas. Even where it can be proved that a given illegal must have entered illegally (e.g., ICE records conclusively demonstrate that he was never issued a visa), how does one prove that the offense occurred in Arizona, or that it occurred recently enough to be prosecutable as a criminal offense? To the extent that the new law changes this, it most certainly does create a crime where mere non-criminal illegality existed before – exactly as the much-maligned MSNBC headline said. This may well be the first time I’ve had to defend MSNBC on anything. Please, dextrosphere, let it be my last.

^*A seventh state, Utah, also issues driver licenses to illegals. I didn’t count them, however, as they issue a different class of driver license to illegals, which are specially marked as “driver privilege cards” and have an overall design that basically screams out “Hello, Mr. ICE Officer, I’m an illegal alien!” I don’t anticipate that holders of normal driver licenses from Utah, which do require proof of lawful residency, will have any problems in Arizona.