L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 190, September 16, 2002
190 PROOF ISSUE
Searching the Land for a Pro-Gun-Rights Judge
Special to TLE
It's unusual for Gun Owners of America, the nation's largest gun- rights lobby (JPFO being considerably smaller than GOA, while the NRA is, of course, the nation's largest gun control organization) to endorse in a judicial race, so I rang Larry Pratt in Northern Virginia to ask about his recent announcement that the group will endorse Nevada state Supreme Court candidate Don Chairez.
"It's unusual for a judicial candidate to even return one of our questionnaires," Pratt explained, "so when we see one returned and he answers the questions (start ital)right(end ital), we sit up and take notice."
GOA takes note of the fact Chairez is "a conservative Republican who's run for Congress" (he left the District Court bench to run unsuccessfully against casino attorney Shelley Berkley for an open seat in '98), and thus has both name recognition and political experience, Pratt explained. It also can't hurt that Chairez and incumbent Bill Maupin stand about even on available campaign cash (Maupin has $93,000 left to spend, and Chairez $75,000, according to the candidates' latest campaign finance reports) or that -- should Chairez win -- he'd be one of only a handful of Hispanic jurists sitting on a state Supreme Court anywhere in the country.
And a conservative Republican Hispanic, to boot? That alone could put Chairez on a short list for eventual elevation to the federal bench, even if he weren't already a hero of the property-rights movement for having stood up to the corrupt Las Vegas political establishment, ruling in 1996 that the city redevelopment agency violated the law and its own regulations when it stole downtown properties like that of the immigrant Pappas family and turned them over to the well-heeled downtown casino moguls for dimes on the dollar.
(A planned piece in the prestigious Los Angeles Times on those illegal downtown "redevelopment" property thefts and their effect in poisoning the well for new private investment in downtown Las Vegas could refocus voter attention on the issue -- and Chairez's lonely, heroic role in it -- in the weeks leading up to the election.)
In contrast with Chairez's pro-property rights decision in the Pappas and Aztec Inn cases -- and only a week before Chairez ruled against the eminent domains seizure of the little Aztec Inn's parking lot for the competing Stratosphere Tower redevelopment project -- Judge Maupin, then also sitting on the district court bench, ruled against the late Ida May's motion that she be allowed to challenge the seizure of her adjoining property, on constitutional grounds.
More recently, however, when the Paul Moldon property seizure case reached the state Supreme Court, Judge Maupin changed sides, standing as the lone Supreme Court dissenter against the seizure.
"So I will say when he got up to the Supreme Court he was the one dissenter, he said my interpretation of the redevelopment statutes was correct," Chairez comments.
But while philosophical support for individual rights is all well and good, how many gun cases actually reach the state Supreme Court, I asked Chairez. Would he really be able to make much difference on the gun issue?
"Frankly, to be honest with you, most of the lawyers in this state don't believe it's worthwhile to challenge a law on constitutional grounds," Chairez responds.
But "Judges are on the bench because of their values." Chairez insists. "Either they do or they don't have any trouble striking down government that's excessive, and that's the big difference between Judge Maupin and me, he's always stood up for big government."
The only reason we're starting to see any discussion of such substantive issues in judicial races, of course, is that the U.S. Supreme Court in Republican Party of Minnesota vs. Kelly, back in June, threw out on First Amendment grounds a state law prohibiting judicial candidates from announcing their views on "disputed legal or political issues."
But that wasn't sufficient to get Nevada Chief Justice Maupin -- who says he can't remember receiving or returning questionnaires from either GOA or the NRA -- to answer any of my gun-rights questions this week.
Over the phone, I tried to ask the judge whether he believes it's constitutional -- under either the Nevada or the U.S. Constitution -- to require licenses or permits to carry a concealed weapon. (None are required in Vermont, for example.) Would he honor a defense that sought to have any such statute thrown out? What about hypothetical state laws banning .50-caliber rifles or banning firearm ownership based on misdemeanor convictions -- questions 13 through 15 on the GOA questionnaire returned by Judge Chairez? Would Judge Maupin oppose laws like that, as Chairez said he would?
"Obviously I support the right to bear arms; that's in the Constitution," Judge Maupin told me.
"So it is a right and not a privilege?" I asked -- precisely the same question worded a slightly different way.
But this time Judge Maupin weaseled. "That's something that's being hotly litigated. I haven't studied it to that degree. ... I just don't know; I haven't given any thought to it. If you're getting ready to ask me a series of questions on contested legal issues, we currently have the decision in Minnesota under study with the Committee on Judicial Elections. ... It still remains unclear, it has not yet been resolved what effect the public statement ... would have on whether a judge could sit on a matter once having spoken out. If you had a case coming up before the Supreme Court, would you want to go before a jurist who's already stated a public opinion about your case?"
This is pretty old sheep dip, of course. I reiterated that I wasn't asking about any specific cases. In fact, I replied that as a defendant I'd be pleased as punch to know the judge was on the record saying all gun laws are unconstitutional, and as a voter I certainly would want to know where a judge candidate stood on such general, constitutional issues. Why would Nevada elect her judges if we're not supposed to ask?
I just wanted to know whether Justice Maupin would dismiss all charges under any state statute which infringed in any way the right to bear arms, which he'd already agreed is a constitutional right. Could the Legislature ban .50-caliber rifles, for example, or would that be unconstitutional?
"You're asking me a question about a legal issue that I haven't had a chance to study. There are certain restrictions on articulated rights in the Constitution. I'm not the kind of judge or lawyer that would answer a question like that. ... I believe that it is our obligation as the head of the court system here in Nevada to make sure that there is a no perception out there that judges are pre-judging cases, pre- judging legal issues before they're fleshed out completely. I just can't get into that discourse and won't."
You did catch the "certain restrictions on articulated rights in the Constitution," I trust. How do you suppose a state law would fare that banned churchgoing on the third Sunday of the month, or that barred publishers from printing books of more than 200 pages? It's only our gun rights under the 2nd and 14th amendments that are subject to these so-called "reasonable restrictions," of course. And the double-talk is getting mighty familiar to gun folk.
Compare this to Chairez, who answered "opposed" to every piece of proposed gun control legislation on the GOA questionnaire, and who favors "Vermont-style legislation that would eliminate all requirements to pay fees and register gun owners and simply allow law- abiding citizens to carry firearms openly or concealed (at the individual's discretion) for any reason except for the commission of a crime."
Isn't that pretty radical, I asked Chairez, who won the $3,000 Curtis LeMay-style 1911 Colt .45 custom-built by CCS Guns at the Friends of the NRA banquet here at the Elks Hall in Las Vegas on Saturday night, Sept. 7?
"It's like Hugo Black used to say," Chairez responds. "The Bill of Rights, those are absolute rights. It says 'Congress shall make no law,' and that means no law, and it's the same thing for the Second Amendment. The rules have to be absolute, bright line rules."
The Chairez for state Supreme Court campaign can accept contributions of up to $10,000 per person or PAC at: Chairez for Supreme Court, 3450 East Russell Road, Las Vegas, NV 89120.
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