It's been a bad couple of weeks for Arkansans' right to self-defense. Last week, I lost a gun-rights case in the Arkansas Supreme by a vote of 4 to 3.
That case has been covered in this paper and needs no further elucidation. But you might have missed that two weeks ago, in another case, the right to bear arms also gave way to government encroachment as a result of an Arkansas Supreme Court decision involving the same 4-to-3 split among the justices.
The Arkansas Supreme Court has seven justices; two and a half are consistently pro-gun rights. Rhonda Wood and Cody Hiland are the stalwarts. Shawn Womack supports the right to self-defense, but he won't rule for it in cases involving the state. All three are conservative.
The decidedly anti-gun justices--irrespective of what the law requires--are the three liberals: Karen Baker, Courtney Hudson, and Dan Kemp. And Barbara Webb recently has demonstrated repeated antipathy towards clear gun rights.
Wood and Baker are in a runoff for chief justice right now. The election is in November. For a variety of reasons, including Wood's conservative respect for our inherent right to self-defense--as well as her ability to apply the law the way it is written rather than imposing her political preferences--I support her.
The recent Arkansas Supreme Court case I'm about to detail lays bare how justices respecting Arkansans' gun rights and the Constitution too often lose out to other court members who prioritize their political preferences. In this case, Justices Wood and Hiland followed the law, the anti-gun activists bastardized it, and Justice Womack continued with his unwillingness to enforce any law against the state when it's sued--which effectively landed him on the wrong side of gun rights this time.
Fourteen years ago, Floyd Sagely was involuntarily committed for about 45 days. As a result, he lost his gun rights. Sagely has no way to get them back under Arkansas law. In contrast, Arkansas affords convicted felons multiple means to restore their firearm rights. Wait, what?
As Sagely's counsel aptly argued, this difference violates the Equal Protection Clause of the United States Constitution, which prohibits states from denying any citizen, well, the "equal protections of the laws." The attorney general took the opposite position--that involuntarily committed Arkansans somehow are treated constitutionally notwithstanding they enjoy diminished rights relative to (of all people) felons.
The liberals (Baker, Hudson, and Kemp), along with Webb, agreed with the attorney general. Indeed, Webb, who campaigned as a conservative, surprisingly wrote the majority opinion stripping Sagely of his constitutional right to equal protection.
Wood, in contrast, soundly stated in her dissent the constitutional importance of gun rights--something the left continues to ignore--and the basic tenet that the Constitution requires all similarly situated people to be treated alike under the law.
She wrote that "the right to bear arms is important and fundamental enough to Arkansans and Americans that a regulation depriving any citizen of that right should receive the full measure of our scrutiny ... [O]nce the State carved out a legal path for felons [to recover gun rights], the State could not constitutionally ignore those like Sagely who were previously involuntarily committed." And Hiland rightly joined Wood's well-reasoned opinion.
Womack, as he routinely does in actions against the state, asserted that Arkansans simply never can sue the state because of a provision in the state constitution that says that Arkansas shall not be a defendant in state court. I truly appreciate Womack's fidelity to the text, but law isn't always that reductive.
Both the United States Supreme Court, regarding federal law, and all of the remaining justices on Arkansas' Supreme Court, regarding the state constitution, recognize that this type of prohibition only applies to suing the state for money--not for actions seeking injunctive relief (i.e., ordering the state to stop violating citizens' rights).
This distinction, for you law nerds, reflects the difference between courts of "equity" (not the DEI type) and courts of "law"--the former empowered to enjoin, the latter authorized to award financial judgments.
To hold that courts can't enjoin unconstitutional state action against its citizens means that Arkansans denied any right guaranteed in our state constitution--such as the right to free speech, the right to bear arms, or the right to hunt--can't sue to stop some jack-booted state agency from interfering with these constitutionally guaranteed protections. I don't believe that the drafters of the Arkansas constitution intended for the explicit rights constraining state action recognized therein to be entirely hortatory.
Constitutionalists correctly describe our founding documents as limiting government power. That explanation doesn't work if you're not entitled to sue the state when it directly violates those "guaranteed" rights.
Finally, the Arkansas Supreme Court clearly determined that citizens may sue to enjoin the state. All justices are bound by that precedent irrespective as to whether they agreed or dissented at the time (or thereafter)--until a majority decides otherwise. United States Supreme Court Justice Antonin Scalia followed precedent he didn't find persuasive--until he convinced four other justices to reverse it--for this reason.
I truly hope Womack--who is decidedly pro-gun rights in cases involving municipalities--will refine his application of sovereign immunity to comport with the court's precedents protecting the individual rights guaranteed in Arkansas' constitution. He certainly can do so and still state his disagreement with those prior opinions. The sign of a great judge is his ability to grow. Womack undoubtedly has that potential.
While I wasn't involved in Sagely's case, I regularly litigate gun laws before the Arkansas Supreme Court as part of my Sisyphean efforts to protect our constantly under-threat right to self-defense. As you can see, even the simple cases vexingly can turn out to be, eh, long shots.
This is your right to know.
Robert Steinbuch, the Arkansas Bar Professor at the Bowen Law School, is a Fulbright Scholar and author of the treatise "The Arkansas Freedom of Information Act." His views do not necessarily reflect those of his employer.
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