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Another View -- Dan Itse: Who will defend the NH Constitution if we do not?

May 02. 2013 9:06PM

The authors of the Union Leader's April 16 editorial ("Gun rights") and Chuck Douglas' April 19 op-ed ("In NH, the attack of the constitutional illiterates") would have done well to read the article on the Honor Your Oath Rally printed in the April 14 Sunday News. That article was factual, it was based upon attending the rally and listening to the speakers. It included actual quotations; imagine that. The Union Leader editorial and Chuck Douglas' column criticizing the rally were not based upon actual knowledge, but what the writers wanted the readers to believe. They were asking the reader to believe things that simply aren't true.

The readers were led to believe that this was a Second Amendment rally; it was not. It was a rally calling the legislators to honor their oath of office. As a speaker, I did not mention the Second Amendment once. The readers were led to believe that the Constitution of Virginia is somehow relevant to our laws. However, we do not live in Virginia; this is New Hampshire. The laws of this state are restrained or empowered only by the constitution of this state and the Constitution for the United States.

The readers were led to believe that Jack Kimball and Rep. John Hikel somehow rely upon Part 1, Article 38 of the constitution of the State of New Hampshire to justify the lawsuit and the petitions. That simply isn't true. Douglas called Article 38 precatory, implying that it holds no actual power, but is only advisory.

Article 38 was originally the last Article in our Bill of Rights, the capstone, to tie it all together. It puts the people firmly in charge of enforcing the Constitution upon those in government. The first two phrases could be considered precatory, though I would suggest hortatory (another arcane word meaning an exhortation):

"A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to justice, moderation, temperance, industry, frugality, and all the social virtues, are indispensably necessary to preserve the blessings of liberty and good government; the people ought, therefore, to have a particular regard to all those principles in the choice of their officers and Representatives."

The people are called to know their constitution and to use it as the measure of whom they send to work for them in government. The last phrase is anything but advisory: "And they (the people) have a right to require of their lawgivers and magistrates, an exact and constant observance of them (those principles), in the formation and execution of the laws necessary for the good administration of government." This phrase means the people have the right to require the legislators, governor and bureaucrats, and judges to strictly obey the constitution.

The right to submit petitions is codified in Part 1, Article 32, which gives the people (individually or collectively) the right to petition the Legislature when the government injures them. Are the petitioners aggrieved by the passage of an unconstitutional law? The justification to enter the law suit is provided by federal statutes on conspiracy and racketeering.

The editorial and column take the position that because the law was considered constitutional when it was adopted in 1977, it must be constitutional now, making it a mere policy decision. As we stated at the rally, this ignores two substantive and relevant changes that have occurred in the interim.

In 1982, the people adopted Part 1, Article 2-a of the New Hampshire Constitution, which strengthens and makes explicit the people's right to defend their life, liberty and property with arms. In 2005, the Supreme Court of the United State, in Castle Rock v. Gonzalas, recognized that the police have no duty to protect any person against an assault. Specifically, absent a statute requiring that person be protected, and the funding to carry that statute into practice the police could not be required to protect a person from assault.

Part 1, Article 3 states that the Legislature is required to recognize that the failure to provide a protection promised in order to secure a surrender of a right makes the surrender void. Therefore, the Legislature must also recognize that a proposal to require a surrender of rights based upon a protection that cannot be provided for any reasonable cost, must be unconstitutional. This is especially true when the right to be surrendered is explicitly recognized.

Knowing that the police can never protect every person from assault all the time, the Legislature has no power to require any person to surrender their right of self-defense. While giving rhetorical lip service to "stand your ground," this paper's editorial and column writers undermine the very rights that justify it.

Dan Itse is a Republican state representative from Fremont.

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