Don Brockett is the former Spokane County prosecuting attorney (1969-1994), and author of The Tyrannical Rule Of The U.S. Supreme Court: How The Court Has Violated The Constitution. He wrote this opinion piece which appeared in the Spokesman-Review on March 13, 2019.
Recently, Gov. Jay Inslee and Attorney General Bob Ferguson sent a letter to gun dealers about the provisions of Initiative 1639. Ferguson previously criticized sheriffs who are resisting the passage of the initiative. The sheriffs are correct; the governor and attorney general are wrong.
As state elected officials, Inslee and Ferguson take the following oath: “… I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution and laws of the state of Washington, …”
The foundational documents of our state and nation are the Washington and U.S. Constitutions. These documents establish contracts between the people and their governments and form the basis for our constitutional republic. Both contracts have provisions for their change by amendment (WA Article XXIII, U.S. Article V).
Article I, Section 24 of the Washington Constitution provides:
RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired … .
The provisions of Initiative 1639 certainly “impair” the right to bear arms in violation of the provisions of the Washington Constitution and therefore can only be changed by amendment. Since the attempt to change the gun laws was not accomplished by that process, the provisions of Initiative 1639 are void.
In addition, Article I, Section 2 of the Washington Constitution provides:
SUPREME LAW OF THE LAND.
The Constitution of the United States is the supreme law of the land.
The 2nd Amendment of the U.S. Constitution provides:
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
It is equally clear that the provisions of Initiative 1639 “infringe” on the right to bear arms under the language of the 2nd amendment of the U.S. Constitution and are therefore void. Such a change would have to occur by amendment of that document.
Is it true that court proceedings should have to occur when laws are passed in violation of the mandated procedure? Even the ones that are void because of the manner in which they were established? The argument is made that Initiative 1639 expressed the will of the people. That may be true but all citizens and especially a lawyer guided by the contracts we call the Washington and U.S. Constitutions know that their provisions can only be changed by amendment. The initiative process allowed by Article II, Section 1 of the Washington Constitution is not an amendment.
A contract must be followed as written, until it is changed by amendment by the allowed procedure. Any other attempt to change the language or effect of the language in a constitution is void.
A simple example may make it clearer to see that the suggestions of the governor and attorney general would be dangerous. What if an initiative approved by the people were to take away the right of free speech or free press? Would they then argue that a vote on such an initiative should be followed until a lawsuit is brought and a court decides the issue? What if the initiative were to allow a search and seizure without a warrant being obtained based on probable cause? Would we all blindly accept such a change without the constitutional language being amended under the amendment articles and have to bring a lawsuit for a court to decide the issue? So even if the action is void we would have the burden to question it by filing a lawsuit and waiting for a decision in the meantime suffering a loss of our rights? To suggest such a procedure is ridiculous.
The governor and attorney general should obey their oaths and follow the provisions of the Washington and U.S. Constitutions or they should leave office. That is what they signed up to do.