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View Full Version : Is a state ban on guns in church a First Amendment violation?


rromeo
04-14-2011, 11:58 AM
I'm sorry that this isn't fully California related, it's a current issue here in Virginia.

Gun control advocates fired back at Virginia Attorney General Ken Cuccinelli Wednesday following a legal opinion issued by Cuccinelli that says it's OK to bring guns to church in the name of self defense.

Cuccinelli also says houses of worship have the right to bar weapons from their premises.

Calling it "an extreme legal opinion," the group Virginians for Responsible Gun Laws blasted the opinion with statements from state Sen. A. Donald McEachin, D-Henrico and Rabbi Ben Romer of Congregation Or Ami.

http://www2.timesdispatch.com/news/2011/apr/13/advocates-criticize-cuccinelli-on-guns-in-church-ar-970443/

In my mind, the AG is correct. It is legal to bring a gun, but the church is allowed to say no. A law banning guns would violate the separation of church and state. Am I wrong? My esteemed state Senator Donald McEachin is planning legislation next year to ban guns in churches under any circumstances.

Andy Taylor
04-14-2011, 12:04 PM
In my opinion if a church want to ban guns on their property it is their right to do so. If they want to allow them, it is also their right to do so. A ban at the State level would not allow the church this freedom, and therefore violates the church's property rights.
The so called seperation of church and state is no where in the Constitution, however.

Crom
04-14-2011, 12:06 PM
I think you're correct. It would seem that the Senator's proposed legislation would be unconstitutional. Have some pro gun, pro freedom civil rights attorneys write letters to Senator McEachin, explaining that they are looking forward to the small fortune they will earn from the lawsuit that will come forth due to his failure to understand the law.

rromeo
04-14-2011, 12:22 PM
The so called seperation of church and state is no where in the Constitution, however.

I'm aware of that, but the First Amendment states: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
The bolded portion is the key here. Banning guns in church could prohibit the free exercise.

socalblue
04-14-2011, 12:25 PM
The so called seperation of church and state is no where in the Constitution, however.

How about the 1st Amendment? "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ......" Difficult to be more clear about the separation of religion from the government.

Don't confuse respect (or political expediency) for lack of separation. Our historic culture along with the free speech component of the same 1st Amendment virtually guarantees that religion & politics will never be truly separated.

stix213
04-14-2011, 12:41 PM
The so called seperation of church and state is no where in the Constitution, however.

The fact its not written word for word is irrelevant, as the supreme court has already recognized the separation of church and state as part of the first amendment (based on the writings of Thomas Jefferson, Reynolds v. United States 1878). Its clearly part of the US Constitution.

Untamed1972
04-14-2011, 12:53 PM
I think the state needs to mind it's own business and let each church makes its own determination on whether they want guns in their church or not.

dustoff31
04-14-2011, 1:19 PM
I'm aware of that, but the First Amendment states:
The bolded portion is the key here. Banning guns in church could prohibit the free exercise.

Only if you are claiming that your religion requires you to carry a gun. Maybe it does, I don't know.

FWIW, the Sikhs got certain concessions from the .gov in CA, as their religion does require that they carry knifes.

But the bottom line is that the government should stay out of it. I'm sure the pastors and congregations of each house of worship are quite competent to decide whether they they want pack in church or not.

hoffmang
04-14-2011, 8:39 PM
A state ban on firearms in churches is a 1A violation. VA's AG has now solved that problem for VA law, but GA law remains incorrect.

Luckily Georgia Carry is appealing a district court decision on that issue that didn't go our way: http://georgiacarry.com/state/places_of_worship/

-Gene

N6ATF
04-14-2011, 10:06 PM
In my opinion if a church want to ban guns on their property it is their right to do so.

In my opinion it would no longer be a church. It would be an organized massacre cult.

Josh3239
04-14-2011, 10:18 PM
A state ban I would not support. Whatever the rules the Churches want to set on their property is their business.

How about the 1st Amendment? "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ......" Difficult to be more clear about the separation of religion from the government.

I fail to see how prohibiting the government from establishing a state religion or stopping someone from practicing their religion is in anyway a wall of separation between the Church and state. In fact, the text of the 1st Amendment makes it clear there is no separation. As long as the government isn't establishing a state religion nor prohibiting the exercise of religion, they can be involved in religion.

But I do agree, that a complete barrier between religion and state is completely unrealistic.

The fact its not written word for word is irrelevant, as the supreme court has already recognized the separation of church and state as part of the first amendment (based on the writings of Thomas Jefferson, Reynolds v. United States 1878). Its clearly part of the US Constitution.

The 1st Amendment, with regard to religion only prohibits government from stopping people from practicing their own religion or establishing a state religion. I am just not getting how that is a wall of separation. Additionally, Thomas Jefferson used the wall of separation analogy to explain to Baptist Ministers how the 1st Amendment protects them and their religion. He did not use it to describe how the government is out of the religion business.

I perhaps missed something in Reynolds v United States, but from what I've gathered they did NOT recognize a wall of separate, they just recognized that you can't use the 1st Amendment as a defense to something illegal, such as human sacrifice not being protected by the 1A.

sawchain
04-15-2011, 12:24 AM
A state ban I would not support. Whatever the rules the Churches want to set on their property is their business.

I understand this position and agree with it. But, if a church can do what it wants on its own property, can't a church also deny blacks from being able to attend? In Heart of Atlanta Motel vs United States, (http://en.wikipedia.org/wiki/Heart_of_Atlanta_Motel_v._United_States) the supreme court ruled that blacks could not be discriminated against. Isn't it also reasonable to argue that I cannot be discriminated against for exercising my 2A rights?

Andy Taylor
04-15-2011, 7:27 AM
The term "seperation of church and state" has most often been used recently in attempts to remove "In God We Trust" from our currency.The courts have, so far, upheld "In God We Trust" as constitutional, as the 1st speaks of "freedom of religion" not "freedom from religion". Splitting hairs perhaps.

Wernher von Browning
04-15-2011, 8:23 AM
I'm aware of that, but the First Amendment states:
The bolded portion is the key here. Banning guns in church could prohibit the free exercise.

Well, does this involve handguns with snakeloads? ;)
(Now THAT'S something I'd like to see on YouTube...)

J.D.Allen
04-15-2011, 9:07 AM
A state ban on firearms in churches is a 1A violation. VA's AG has now solved that problem for VA law, but GA law remains incorrect.

Luckily Georgia Carry is appealing a district court decision on that issue that didn't go our way: http://georgiacarry.com/state/places_of_worship/

-Gene

GA also has a bigger problem in that they ban carry, licensed carry, at any public event or gathering.

repubconserv
04-15-2011, 9:23 AM
In my mind, the AG is correct. It is legal to bring a gun, but the church is allowed to say no. A law banning guns would violate the separation of church and state. Am I wrong? My esteemed state Senator Donald McEachin is planning legislation next year to ban guns in churches under any circumstances.

church members are protected under the 2nd for carrying a gun wherever. Though, you are right, THE CHURCH can say "no guns." I really don't see this as a 1A issue. Govt banning the carry of guns at schools is not a 1A issue, why would this be? (unless of course as someone already stated, your religion requires you to carry)

I fail to see how prohibiting the government from establishing a state religion or stopping someone from practicing their religion is in anyway a wall of separation between the Church and state. In fact, the text of the 1st Amendment makes it clear there is no separation. As long as the government isn't establishing a state religion nor prohibiting the exercise of religion, they can be involved in religion.

The 1st Amendment, with regard to religion only prohibits government from stopping people from practicing their own religion or establishing a state religion. I am just not getting how that is a wall of separation. Additionally, Thomas Jefferson used the wall of separation analogy to explain to Baptist Ministers how the 1st Amendment protects them and their religion. He did not use it to describe how the government is out of the religion business.

I perhaps missed something in Reynolds v United States, but from what I've gathered they did NOT recognize a wall of separate, they just recognized that you can't use the 1st Amendment as a defense to something illegal, such as human sacrifice not being protected by the 1A.

The term "seperation of church and state" has most often been used recently in attempts to remove "In God We Trust" from our currency.The courts have, so far, upheld "In God We Trust" as constitutional, as the 1st speaks of "freedom of religion" not "freedom from religion". Splitting hairs perhaps.

Our founders built this nation on the principles of the Christian religion, Pres washington declared Thanksgiving to be a national holiday (http://memory.loc.gov/ammem/GW/gw004.html), stating that it would be a day to thank God for His signal favors.
Congress was the one to suggest this idea less than 24 hours after Bill of rights was signed into law. (despite "evil" religion being the main purpose of the holiday)

goodlookin1
04-15-2011, 10:04 AM
I wouldnt care what they say....I'd carry at Church anyway!

All it takes is some muslim wackjob doing the "will of allah", or some other misguided soul to decide to shoot the place up. May God condemn me if I stand by and let that happen without doing something about it. This world is a horrible place with many horrible people....take away our ability to carry at Church: Why dont we just paint a target on our foreheads, asking someone to come in and rob or murder us without fear of meeting armed victims!

Oh and in case you are wondering, yes I am politically incorrect.

Kestryll
04-15-2011, 11:16 AM
How about the 1st Amendment? "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ......" Difficult to be more clear about the separation of religion from the government.

Don't confuse respect (or political expediency) for lack of separation. Our historic culture along with the free speech component of the same 1st Amendment virtually guarantees that religion & politics will never be truly separated.

There is no 'separation of Church and State' clause.
There IS an Establishment Clause and that's all it really is.
It is called that because of the wording in the First Amendment, here is the relative part:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
These 16 words that address religion are the focal point of the Establishment Clause:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;
Notice how it does NOT mention a separation but only states very clearly what the Government CANNOT do.

Actually the essence of the Establishment Clause is the prevention of a State mandated religion (see: Church of England) and the assurance that the freedom to exercise your religion could not be hampered or regulated by the Government.

There is no 'separation of Church and State' or 'wall of separation' in the Constitution and the the one reference of it is nearly always used out of context. It was in a letter by Jefferson to a CHURCH, said to assure them that the Government would not try to quash their religion.

This was the letter in 1802 to the Danbury Baptist Association in reply to a letter from them addressing concerns that their religious freedoms were not seen as immutable but instead as privileges granted by the legislature - as "favors granted." Jefferson wrote that the assure them that their right to their religious view and the expression of them would be protected from governmental intrusion, not to bar their views from the government.

Let's look at the whole paragraph that famous line comes from:

Believing with you that religion is a matter which lies solely between man & his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.


Jefferson seems far more concerned with preventing the government from limiting or adversely affecting citizens expression of their faith and their religious views then he was about limiting the citizen.

Again, both the Amendment and the Danbury Letter have to be seen in their historical context. The 'bogyman' that drove many to America was the Church of England. Join and believe by order of Law.
This is what the Founders strove to prevent and set checks in place for, not to protect State from religion but to protect religion from State.

rromeo
04-15-2011, 11:56 AM
Thank. Obviously I shouldn't have said separation, but the point I was getting at is the same I think. A state law That prohibits guns has the potential to "prohibit the free practice."

J.D.Allen
04-15-2011, 11:58 AM
Very well said Kes, it's freedom OF religion. Not freedom FROM religion.

Dreaded Claymore
04-15-2011, 3:39 PM
Very well said Kes, it's freedom OF religion. Not freedom FROM religion.

This "it's not freedom FROM religion" phrase has never made any sense to me. Has anyone ever seriously argued that the government wants to twist the First Amendment and PREVENT people from exercising a religion?

Before anyone says it, I am aware that there is an organization called the Freedom From Religion Foundation. They are not the government, they are radical atheist extremists, and entirely different from proponents of religious freedom (like me).

mcsoupman
04-15-2011, 4:05 PM
I am a pastor looking to CCW so I can carry at church. Churches are potential targets, plus just had our 3rd shooting in the area in the last year. This one was across the street.