Post by readingsomestuff on May 2, 2009 23:38:01 GMT -5
The constitutions give instructions to governments as they interface with the People, and throughout our history as a nation there have been many times called into question when any individual or organization becomes an actor or agent of the state. Their designation determines the rights of those who interact with the actor/agent and the rights of the actor/agent in their state action or agency.
One example is that a sworn police officer might receive qualified immunity in the course of lawfully performing their duties yet they would be restricted in how they conducted search/seizure in that performance by the constitutions. On the other hand, a non-state actor (who was not commanded by the state) would not have the qualified immunity but does not have such constitutional restrictions on his ability to perform searches/seizures, even where they may be criminal otherwise. Another example is the confidential informant directed by the police to perform some action that would amount to entrapment; entrapment occurs when the actor is a agent of the state, and that actor becomes so upon performing the actions directed by the state actor; it is not entrapment when there is no state agency.
State agency is most likely to occur either by the disbursement of funding or by having an organization act specifically in the interests of the state as directed by the state. It is a tough pill to swallow when collegiate organizations receive large amounts of funding from the state, some of it metered by state metrics, where information is required to be harvested and provided to the state for the money (making the college an agent for the state in the performance). These types of actions make it hard to recognize whether the facilities are of the state and should therefore be governed differently than if they were private property.
Something made not entirely clear to me on a very superficial review of FIRE's website is how technical and legal analysis may or may not have been made in regards to each specific school and how it is funded or carries out state instructions. Because there is much talk about 'free speech/religion/association' on the site, it is ever so important to decide whether each school qualifies as a state agency or a private organization, as it fixes the organizations rights very differently in each case. For one there should be a legal crusade and the other a moral crusade. I feel that there needs to be a significant undertaking in realizing these schools as what they really are (generally, state agencies) so that one's rights will apply as they do through all government intervention.
Once these organizations are recognized as state agencies, we have to review how the law must apply. Regarding the possession and carry of firearms, discussions about preemption come up. 18PACS6120 (In Title 18, our Crimes Code" says that "No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition [...]" I would suggest that there is a question whether that is a criminal violation or a directory exemption to crime. The reason this is important is because we would have to first realize how the college became an state agency, and therefore we must determine what it is or how it was delegated power, and what the power of the delegator was. We know, for example, that sometimes PSP buildings exert regulation of possession of firearms in their buildings even though the legislature has not prescribed that they should, and by a reading of 6120, maybe they are not specifically prohibited by that statute form doing so.
The 2A/Art1Sec21 certainly preempts the infringement and questioning of our right to keep and bear arms. The question is where the preemptions attach differently when they are manifested simply by the constitution or are enacted through statute. The courts have held that for some rights there must be a statutory vehicle by which they are enforced yet have held for some others that no statutory vehicle need exist and are self-executing.
The question of agency goes beyond schools and on to such things as banks. Banks are instructed by the state to collect information pursuant to the Patriot Act and other acts, which might then be being transmitted to the Secretary of Whatever. Doing this would effectively make them a state agency in that capacity. Should that agency demand that one ought to be allowed to carry firearms, according to law, into a bank, as if it were public property, rather than leaving the bank with the ability to prevent persons from entering the bank with firearms, should they choose that policy, under penalty of trespass?
Maybe the same question can be asked for all the property that was socialized during our most recent federal bailouts.
One example is that a sworn police officer might receive qualified immunity in the course of lawfully performing their duties yet they would be restricted in how they conducted search/seizure in that performance by the constitutions. On the other hand, a non-state actor (who was not commanded by the state) would not have the qualified immunity but does not have such constitutional restrictions on his ability to perform searches/seizures, even where they may be criminal otherwise. Another example is the confidential informant directed by the police to perform some action that would amount to entrapment; entrapment occurs when the actor is a agent of the state, and that actor becomes so upon performing the actions directed by the state actor; it is not entrapment when there is no state agency.
State agency is most likely to occur either by the disbursement of funding or by having an organization act specifically in the interests of the state as directed by the state. It is a tough pill to swallow when collegiate organizations receive large amounts of funding from the state, some of it metered by state metrics, where information is required to be harvested and provided to the state for the money (making the college an agent for the state in the performance). These types of actions make it hard to recognize whether the facilities are of the state and should therefore be governed differently than if they were private property.
Something made not entirely clear to me on a very superficial review of FIRE's website is how technical and legal analysis may or may not have been made in regards to each specific school and how it is funded or carries out state instructions. Because there is much talk about 'free speech/religion/association' on the site, it is ever so important to decide whether each school qualifies as a state agency or a private organization, as it fixes the organizations rights very differently in each case. For one there should be a legal crusade and the other a moral crusade. I feel that there needs to be a significant undertaking in realizing these schools as what they really are (generally, state agencies) so that one's rights will apply as they do through all government intervention.
Once these organizations are recognized as state agencies, we have to review how the law must apply. Regarding the possession and carry of firearms, discussions about preemption come up. 18PACS6120 (In Title 18, our Crimes Code" says that "No county, municipality or township may in any manner regulate the lawful ownership, possession, transfer or transportation of firearms, ammunition [...]" I would suggest that there is a question whether that is a criminal violation or a directory exemption to crime. The reason this is important is because we would have to first realize how the college became an state agency, and therefore we must determine what it is or how it was delegated power, and what the power of the delegator was. We know, for example, that sometimes PSP buildings exert regulation of possession of firearms in their buildings even though the legislature has not prescribed that they should, and by a reading of 6120, maybe they are not specifically prohibited by that statute form doing so.
The 2A/Art1Sec21 certainly preempts the infringement and questioning of our right to keep and bear arms. The question is where the preemptions attach differently when they are manifested simply by the constitution or are enacted through statute. The courts have held that for some rights there must be a statutory vehicle by which they are enforced yet have held for some others that no statutory vehicle need exist and are self-executing.
The question of agency goes beyond schools and on to such things as banks. Banks are instructed by the state to collect information pursuant to the Patriot Act and other acts, which might then be being transmitted to the Secretary of Whatever. Doing this would effectively make them a state agency in that capacity. Should that agency demand that one ought to be allowed to carry firearms, according to law, into a bank, as if it were public property, rather than leaving the bank with the ability to prevent persons from entering the bank with firearms, should they choose that policy, under penalty of trespass?
Maybe the same question can be asked for all the property that was socialized during our most recent federal bailouts.
However, CCAC has clear rules about what needs to be done to distribute information to students on campus. Solicitation does not imply purchasing anything. People were kicked of a mall for soliciting nothing (literally) to promote Buy Nothing Day.