What did the Idaho AG say about the 2010 'Idaho Right to Protection Act' ballot initiative on self-defense, gun tracking, and home privacy?

Plain-English summary

A petitioner filed a 2010 Idaho ballot initiative titled the "Idaho Right to Protection Act" addressing three loosely related topics: a self-defense right for "lawful citizen[s] of Idaho," a ban on government tracking of guns or ammunition (including by RFID dust, paint, or other identifiers) belonging to "law abiding citizens of Idaho," and a privacy right in the home limiting searches to occupants caught "in the act of committing a crime." The text would have been placed in Title 18 (Crimes and Punishments) of the Idaho Code.

The Attorney General's Certificate of Review concluded the initiative as drafted made no legal sense in several places, although it stopped short of declaring the entire measure unconstitutional. The recurring problem was that the text would have lived in the criminal code but defined no crime and set no punishment.

On self-defense, Idaho already recognized the right under Idaho Code §§ 18-4009 and 18-4010. If the initiative was meant to expand the right (perhaps by removing the reasonability requirement that bars excessive force), the sponsors should have said so directly. If it was meant to restrict the right (by excluding noncitizens or those whose citizenship was unlawfully obtained), the sponsors should have said that. As drafted, it could be read either way, or as just a redundant restatement.

On gun tracking, the ban was vague: routine business and club records of firearms ownership might or might not count as illegal "tracking," and the term "law abiding citizens" was undefined. The provision could not bar federal officials from tracking guns under federal law because of preemption.

On home privacy, the AG was uncertain whether the petition referred to the Fourth Amendment privacy right (redundant with existing law) or the broader penumbral privacy doctrine that supports cases like Roe v. Wade. As written, the language could be read as forbidding searches of a home for evidence of past crimes, which would be a sweeping change to existing search-and-seizure doctrine and one that would need to be stated clearly.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What three things did this initiative try to do?

First, declare a self-defense right for "lawful citizen[s] of Idaho" without "interference from federal or state agencies." Second, prohibit governmental "tracking" of "law abiding citizens'" guns or ammunition, expressly including markings, RFID dust, paint, or "any other direct identifiers." Third, declare an Idaho citizen's right to privacy in the home, with permission to be "anonymous" so long as not "in the act of committing a crime."

Why did the AG find the self-defense provision unclear?

Because Idaho already recognizes the right of self-defense under Idaho Code §§ 18-4009 and 18-4010, and the existing statute carries a reasonableness requirement (no unreasonable or excessive force). The new language did not specify whether it preserved, expanded, or contracted the existing rule. Limiting the right to "lawful citizen[s]" might exclude lawful permanent residents and others. Omitting reasonableness might allow lethal response to non-lethal threats. Either reading is a substantial change, but the petition didn't say which one was intended.

Why is the gun-tracking ban a problem?

Two reasons. First, vagueness: a gun store keeping internal sales records, or a gun club tracking what weapons members shoot, might or might not be "tracking" within the meaning of the statute. The undefined term "law abiding citizens" compounds the problem. Second, federal preemption: even if Idaho banned its own officials from tracking guns, federal officials operating in Idaho under federal authority would not be bound (the AG made the same Supremacy Clause point in the parallel arrest-authority and Firearms Freedom Act Certificates issued the same week).

What was the AG's concern about the home-privacy provision?

That it was either redundant or sweeping, and the petition did not specify which. The Fourth Amendment and Article I, § 17 of the Idaho Constitution already protect against unreasonable searches of the home; if the initiative meant to restate that, it added nothing. If, on the other hand, it meant to invoke the broader penumbral privacy doctrine that grounds cases like Griswold and Roe, the implications were enormous and unstated. As literally written ("only when the citizen who lives in such a place is 'in the act of committing a crime'"), the language could foreclose searches for evidence of past crimes, a major change from current law. The AG asked sponsors to clarify.

Did the AG say no revisions could fix it?

No. Unlike the parallel arrest-authority and Firearms Freedom Act and federal-law-nullification Certificates of the same week, this Certificate proposed specific drafting fixes for sponsors to consider. The defect here was unclear drafting, not the constitutional structural impossibility that defeated the other three.

Background and statutory framework

The Certificate of Review process under Idaho Code § 34-1809 sends every initiative petition to the Attorney General for advisory legal review before signature gathering. The review covers form, style, and substantive legal problems including any constitutional defects. Recommendations are advisory; the AG takes no position on policy.

Self-defense in Idaho is governed primarily by Idaho Code §§ 18-4009 (justifiable homicide by any person) and 18-4010 (justifiable homicide by public officers), supplemented by case law on reasonableness and proportionality. The Castle Doctrine and "stand your ground" principles have evolved through statute and case law. Any change to the existing rule needs to specify what it changes.

Search-and-seizure doctrine in Idaho rests on the Fourth Amendment to the U.S. Constitution and Article I, § 17 of the Idaho Constitution. The Supreme Court's penumbral privacy doctrine emerges from cases like Griswold v. Connecticut (1965) and was extended in Roe v. Wade (1973) and later cases. The AG's reference to "the penumbral privacy from which the right to abortion derives" is a 2010-era reference to that line, decided well before the 2022 reversal in Dobbs.

The federal preemption analysis on gun tracking by federal officials follows the same Supremacy Clause framework set out in the AG's parallel Certificates of Review on the arrest-authority initiative and the Firearms Freedom Act initiative, both issued the same week.

Citations

Idaho Code: §§ 18-4009, 18-4010, 34-1809.

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021010b.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

February 10, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL

Re: Certificate of Review
Proposed Initiative Related to Idaho Right to Protection Act

Dear Secretary of State Ysursa:

An initiative petition was filed with your office on January 19, 2010. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." Due to the number of initiatives that were submitted for review and the available resources for performing the reviews, we did not communicate directly with the petitioner as part of the review process. The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles must impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure.

MATTERS OF SUBSTANTIVE IMPORT

A. Introduction

This initiative apparently addresses three substantive matters. First, it provides that a "lawful citizen of Idaho" has the right to self defense, defined as "the right to defend himself or herself, unless he or she is in the act of committing a crime, without interference from federal or state agencies." Second, it provides that, "Law abiding citizens of Idaho shall not have their gun or ammunition rights waived by any governmental agency nor shall their guns or ammunition be tracked, with but not limited to, markings or radio frequency identification (RFID) dust, paint, or by any other direct identifiers." Third, the initiative states that citizens have a constitutional "right to privacy in such citizen's home . . . and to be anonymous as long as such citizen is not in the act of committing a crime." The initiative continues that the state and federal government had "surmised [sic]" powers in excess of constitutional grants despite lack of "authority to supersede these constitutional guarantees."

B. Review and Recommended Revisions or Alterations

Generally, it is difficult to discern what the legal goal of this initiative is. Although it would be included in the "Crimes and Punishments" section of the Idaho Code (Title 18), it does not define a crime or set any punishment.

As to the first substantive matter, Idaho already recognizes a right of self-defense. See, e.g., Idaho Code §§ 18-4009 and 18-4010. Because it must be presumed that this legislation would change the right of self-defense, it must either restrict or expand that right. It might restrict that right by limiting it to "lawful citizen[s] of Idaho." If it is not the intent to deny self-defense to non-citizens or those who obtained their citizenship rights unlawfully, perhaps this language should be stricken.

Likewise, the right of self-defense might be expanded by the proposal through omission of the reasonability requirement. Currently, under Idaho law, a person may not use unreasonable or excessive force in self-defense. If it is the intent of this initiative to remove that, making it possible to kill a criminal who is not actually a threat to the life or health of the victim, the initiative should be worded accordingly.

If it is not the intent to change Idaho law regarding self-defense, then this portion of the initiative should be deleted. If, on the other hand, it is the desire to change the law, then the best course would be to instead amend the statutes governing self-defense.

As to the second substantive matter, this law would apply to prevent the tracking of guns or ammunition of "law abiding citizens of Idaho" by Idaho citizens and government. It would also prevent Idaho governmental agencies from "waiv[ing]" the gun rights of any "law abiding citizens of Idaho." This law would be preempted by federal law such that this would not apply to federal officials.

Although this initiative would make tracking guns illegal, it does not provide a penalty for such conduct. What conduct constitutes the crime of tracking a gun or ammunition is also vague. For example, a store that keeps internal records of gun or ammunition sales might be guilty of criminal activity under this section, as could a gun club that keeps track of what weapons its members own or shoot on a regular basis.

The initiative also does not define "law abiding citizens." Presumably the intent here is to allow the tracking of weapons possessed by criminals, but does not specify whether this means someone with a past conviction, someone currently suspected of criminal activity, or both.

As to the third substantive matter, it again does not define a crime or a punishment. It states that Idaho citizens enjoy a constitutional right to privacy. It should be noted that it is unclear if this initiative is merely referring to the privacy granted by the Fourth Amendment (and its Idaho counterpart) or rather refers to the penumbral privacy from which the right to abortion derives. Again, if this initiative is merely to declare that citizens have the rights already granted by the Idaho and United States constitutions, such would be merely redundant. If it is to declare that those rights must be defined differently than as held by precedent of the Supreme Court of the United States and the Idaho Supreme Court, such a declaration is preempted and of no legal effect.

If this initiative is intended to grant specific rights in excess of the constitutions as interpreted by the respective highest courts, such specific rights should be specifically articulated. As it is currently written, one interpretation of this part of the initiative is that police may search a "home, farm, vehicle, trailer, or any other place of domicile" only when the citizen who lives in such a place is "in the act of committing a crime." This appears to prevent the search of a home or other domicile for evidence of past crimes. Whether it is the intent of the initiate to prevent police from searching for evidence of past crimes in a domicile should be clearly stated. Otherwise, this section should be rewritten to give guidance as to its intent and effect.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alanna Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.

Sincerely,

LAWRENCE G. WASDEN
Attorney General

Analysis by:
KENNETH K. JORGENSEN
Deputy Attorney General