A few people have queried me as of late about the so-called “rational” basis test which has been posited by some as an iron-clad defense against the constitutional infringement of breed-specific legislation (BSL). Fine, so lets talk about it. The so-called “rational” basis test as it relates to BSL is the lowest form of scrutiny; it is an argument made by lawyers who are paid by states and municipalities to skirt individuals’ constitutional rights. They must necessarily dilute citizens’ 14th amendment property rights in order to make their BSL “legal” because those 14th amendment rights are straightforward and fundamental and therefore hard to negate without some abstract argument which supposes a rational cause.

Our founding fathers would have found the state’s confiscation of property on such flimsy merits abhorrent. Indeed, we should all find such dilute evidence used to negate our 14th amendment equal protection and due process rights abhorrent, especially considering that BSL doesnt even keep the public safer.

If you’re talking about the traditional rational basis test, meaning that “a state law must be upheld if it (or the classification it contains) is rationally related to any legitimate interest of the state,” then I just don’t see why that is such an iron-clad argument that BSL opposers should pack up and call it a day, allowing their tyrannical city and state governments to usurp their equal protection and due process rights and confiscate or restrict their dogs.

There are limitations to the rational basis test, such as “when the classification burdens what the Court determines to be a ‘fundamental right’” and property rights are pretty fundamental. Plus, the “legitimate interest of the state” on a supposed “rational” basis is far too broad a criteria to be used as any kind of benchmark for determining negation of citizens fundamental 14th amendment property rights. The fact that states or municipalities are defending BSL on the merits, or lack thereof, of the “rational” basis test illustrates just how desperate they are to defend what they know to be illegal and unconstitutional legislation.

In the case of BSL you can snow the court (and the people apparently) and tell them that this is a rational application of a law which is in the state’s, and therefore the publics, best interest, but even with all their legal wrangling the “rational” basis test is illegitimate since one states “rationality” is another’s lunacy. Again, such minimal scrutiny applied to individuals’ constitutional rights will always negate the individual’s rights in the interest of the state’s. That’s why in terms of BSL the “rational” basis test is a smoke screen, opaque to the public, which supposedly legitimizes the state’s or municipality’s “right” to confiscate citizens’ property, at the same time usurping citizens’ equal protection and due process rights.

My response to people who cite precedent for the “rational” basis test as regards states and municipalities “right” to pass BSL is that you can pay anyone to push an agenda. As Abraham Lincoln said, “You can fool some of the people all the time.” States and municipalities use citizens’ hard-earned tax dollars to pay so-called “experts” a lot of money to say that “pit bulls” are inherently vicious, though there has yet to be scientific proof of such. Simply hold up a bunch of poster-sized bloody photos of victims of supposed “pit bull” attacks and that is about as much proof as some municipalities have offered as reason enough to negate citizens property rights.

The city of Denver didn’t have to fool all the people all the time to “legitimize” their unlawful “pit bull” ban. They just had to fool enough of them to make it appear as if there was a public call for a ban.   Yet Denver has on several occasions violated their citizens’ due process rights since Denver’s ACOs have repeatedly been unable to discern what is and what is not a “pit bull” as defined by their own ordinance.   And as we so often say on this site, “pit bull” isn’t even a breed.  

Politics isn’t necessarily about what is real; it’s about what you can make people believe. Similarly, BSL isnt about a real threat but rather one created by the media, hysterical hate groups, and, as a result, state and municipal government.

Even with the “rational” basis test, no state or municipality has proven that “pit bulls” are an inherent threat, mostly because the slang term “pit bull” can describe a myriad of dog breeds, their mixes, and lookalikes, which of course even a child can understand would skew bite statistics. And if you can’t prove statistically or scientifically that there is a threat, then it is unlawful to deprive someone of their fundamental right to their property. Blowing up photos of people supposedly mauled by “pit bulls” is hardly a fact-based refutation of concrete scientific evidence.

States and municipalities that successfully use the “rational” basis test as a defense to uphold BSL don’t prove that BSL isn’t a violation of equal protection or due process rights. They simply get away with their BSL in spite of its infringement of 14th amendment fundamental rights using an abstract legal argument that shouldn’t even be applied to BSL.

Despite attempts to use the “rational” basis test to uphold BSL, BSL has been overturned anyway. Consider the 2006 Ohio Appeals Court decision wherein it was determined that there was “no rational basis to single out pit bulls as inherently dangerous.”   [While this decision was overturned on appeal, there was reported evidence tampering during the trial which implies that some very powerful people with very deep pockets rigged a kangaroo court in their favor.]  

Other courts have overturned BSL due to mistaken identity wherein an Animal Control officer or some other “expert” determined a dog was an American Pit Bull Terrier but in actuality it was another breed like an American Bulldog, a Boxer, or a mix. In instances like these, courts have found that breed bans and breed-specific restrictions have negated owners’ due process rights, since how can states and municipalities deprive citizens of their property when they can’t even definitively designate citizens’ property as contraband?

Banning a breed or breeds of dog while simultaneously being unable to definitively discern if any given dog is a banned breed or not is a glaring violation of due process rights. Confiscating dogs under the assumption that they are the banned breed yet having no definitive scientific evidence that they are the banned breed is like banning red cars and then sending out a color-blind officer to police traffic.

Here are the questions pet owners should be asking themselves: Why do legislators continue to propose and pass BSL when they know it is ineffective, expensive, unenforceable, and unconstitutional? Why are city and state attorneys working so hard to negate citizens rights?