Amendment 5 on August Ballot…Maybe Not Good For Firearms Freedom

Posted: July 3, 2014 in Elections, Fire Arms
Tags: , , ,

The August 5th mid election state wide ballot has entirely too many proposed Constitutional Amendments. As shown very clearly by the Constitution Party’s analysis below, things that look good on their face may actually be more restrictive and destructive to individual liberty than a cursory look might indicate.

Check this out and please, make up your own mind based on research:

Constitution Party of Missouri
Constitutional Amendment 5 (SJR 36)

Ballot language  Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is a unalienable right and that the state government is obligated to uphold that right? 

Current Article I, Section 23. That the right of every citizen to keep and bear arms in defense of his home, person and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

Proposed new Article I, Section 23That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned[; but this shall not justify the wearing of concealed weapons].The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.

In the proposed new amendment shown above, words enclosed in [  ] will be removed from existing law. Words in Bold will be added to existing law.

The one positive about this amendment is the removal of the words “but this shall not justify the wearing of concealed weapons”.

However there are several problems with this amendment:

1. The very first line reads “That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms ………..”What is a normal function? There is no definition of “normal function” in state statutes.  This will be subject to future interpretation.

2. “The rights guaranteed by this section shall be unalienable”(Unalienable rights are rights which cannot be given away or given up.)  The next line reads Any restriction on these rights shall be subject to strict scrutiny.” So these rights are unalienable UNLESS they are restricted? In which case the restrictions will be subject to strict scrutiny. Who will impose restrictions? Who will provide the scrutiny for said restrictions?

3. “Nothing in this amendment shall be construed to prevent the passage of general laws by the General Assembly that limit such rights for convicted violent felons or persons adjudged to be a danger to self or others as the result of a mental disorder or mental infirmity”. While many will see this language as reasonable, allowing government to determine who can possess firearms is fraught with unseen and unknown danger. Historical cases of governments using “mental illness” as an excuse to detain and imprison its citizens are many.

The Constitution Party of Missouri recommends a “NO” vote on Amendment #5.

 

Comments
  1. Ron Calzone says:

    My good friends at the CP have this one all wrong. This is my reply to their three areas of concern:

    1) It’s clear that the anti-gun folks want to take our ability to USE our firearms, even if they can’t take the guns, themselves, away. Protecting things needed to effectively use them, like ammo and accessories, is a good addition to our constitutional rights. If we had not included “typical to the normal function of such arms” the opposition would still have been able to try to limit magazine capacity, etc.

    2) “Any restriction on these rights shall be subject to strict scrutiny.” is probably the most important phrase in the amendment. We always have had laws restricting our God-given unalienable rights, and we always will. Some of those restrictions are necessary to any society, if you are going to respect and protect OTHER’S God-given unalienable rights.

    For instance, I think most of us would agree that a law against slander (restricting someone’s free speech rights) would be appropriate. Likewise, we would agree that there should be legal consequences when someone deliberately lies about or misrepresents a product. If a filling station sold you “gas” that was really water, you would want him to be accountable for ruining your engine.

    And I think most of us would agree that a law restricting target practice in a crowded urban neighborhood was an appropriate restriction of the right to keep and bear arms.

    All of those things would pass the legal standard of review called “the strict scrutiny test”.

    A law, however, saying you can’t own a gun if you live in a crowded neighborhood, or fire one in protection of your life or property, would not pass the strict scrutiny legal test.

    The addition of that language to SJR 36 is a direct response to the modern courts’ tendency to “dumb down” our rights by applying “lesser” standards of review of laws restricting our rights. Increasingly, courts are redefining and diminishing our rights by applying something called “the rational basis test”. Learn more about it here: https://soundcloud.com/institute…/make-believe-judging-the and ://www.ij.org/…/other_pubs/neily_georgetown_journal.pdf

    In sum, the strict scrutiny clause in SJR 36 is not at all opening the door for more infringements on our gun rights, but it IS forcing the courts to use the toughest standard of review when such unconstitutional laws are challenged.

    3) With respect to the final clause, the current CP position is: “While many will see this language as reasonable, allowing government to determine who can possess firearms is fraught with unseen and unknown danger. Historical cases of governments using “mental illness” as an excuse to detain and imprison its citizens are many.”

    Again, I think most of us would agree that the state SHOULD be able to restrict the rights of SOME people — those serving time in prison for murder, for instance. Such people have rightly lost the right to move about freely and to associate with whomever they choose. And they have also lost the right to keep and bear arms.

    The language in SJR 36 builds new fences around the state’s ability to make those sorts of restrictions. For instance, right now a VA doctor can unilaterally make the determination that veteran is unfit to own a gun. With SJR 36, the individual gets due process — a court of law has to determine that he is a real danger before he loses any rights.

    SJR 36 greatly ties the hands of the state and provides unprecedented protection to Missourian’s right to keep and bear arms.

    – Ron Calzone

  2. David Murphy says:

    1) It’s clear that the anti-gun folks want to take our ability to USE our firearms, even if they can’t take the guns, themselves, away. Protecting things needed to effectively use them, like ammo and accessories, is a good addition to our constitutional rights. If we had not included “typical to the normal function of such arms” the opposition would still have been able to try to limit magazine capacity, etc.

    2) “Any restriction on these rights shall be subject to strict scrutiny.” is probably the most important phrase in the amendment. We always have had laws restricting our God-given unalienable rights, and we always will. Some of those restrictions are necessary to any society, if you are going to respect and protect OTHER’S God-given unalienable rights.

    For instance, I think most of us would agree that a law against slander (restricting someone’s free speech rights) would be appropriate. Likewise, we would agree that there should be legal consequences when someone deliberately lies about or misrepresents a product. If a filling station sold you “gas” that was really water, you would want him to be accountable for ruining your engine.

    And I think most of us would agree that a law restricting target practice in a crowded urban neighborhood was an appropriate restriction of the right to keep and bear arms.

    All of those things would pass the legal standard of review called “the strict scrutiny test”.

    A law, however, saying you can’t own a gun if you live in a crowded neighborhood, or fire one in protection of your life or property, would not pass the strict scrutiny legal test.

    The addition of that language to SJR 36 is a direct response to the modern courts’ tendency to “dumb down” our rights by applying “lesser” standards of review of laws restricting our rights. Increasingly, courts are redefining and diminishing our rights by applying something called “the rational basis test”. Learn more about it here: https://soundcloud.com/institute…/make-believe-judging-the and ://www.ij.org/…/other_pubs/neily_georgetown_journal.pdf

    In sum, the strict scrutiny clause in SJR 36 is not at all opening the door for more infringements on our gun rights, but it IS forcing the courts to use the toughest standard of review when such unconstitutional laws are challenged.

    3) With respect to the final clause, the current CP position is: “While many will see this language as reasonable, allowing government to determine who can possess firearms is fraught with unseen and unknown danger. Historical cases of governments using “mental illness” as an excuse to detain and imprison its citizens are many.”

    Again, I think most of us would agree that the state SHOULD be able to restrict the rights of SOME people — those serving time in prison for murder, for instance. Such people have rightly lost the right to move about freely and to associate with whomever they choose. And they have also lost the right to keep and bear arms.

    The language in SJR 36 builds new fences around the state’s ability to make those sorts of restrictions. For instance, right now a VA doctor can unilaterally make the determination that veteran is unfit to own a gun. With SJR 36, the individual gets due process — a court of law has to determine that he is a real danger before he loses any rights.

    SJR 36 greatly ties the hands of the state and provides unprecedented protection to Missourian’s right to keep and bear arms.

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