Ballot Briefing: Amendment 5 and gun rights

Missouri Ballot Briefing - With Banner

Leading up to Missouri’s Aug. 5 primary election, Missouri Business Alert is examining the ballot measures that will be put to voters. Today’s focus is Amendment 5, which would strengthen the language of the Missouri constitution regarding the right to bear arms. 

Missouri Business Alert’s complete coverage of the ballot measures is available here.

Missouri’s constitution states that the right of citizens to keep and bear arms, “shall not be questioned.” Now, the state is calling on voters to decide if the language regarding that right should be made even stronger.

Sen. Kurt Schaefer, R-Columbia, sponsored Amendment 5, one of five ballot measures that Missouri voters will decide on next month. The measure was approved for the ballot with a vote of 23-8 in the Senate and 122-31 in the House. Schaefer said the amendment would make Missouri’s articulation of gun rights one of the strongest in the nation.

“What it really does is add language that the right to keep and bear arms under the Missouri constitution is an unalienable right, which is just another word to used to say it is a right of the highest level,” Schaefer said. “The other thing it does is it requires the court to apply a strict scrutiny standard in reviewing any infringement on the right, but that really is a consequence of it being an unalienable right.”

The language of the ballot summary reads:

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?

State and local governmental entities should have no direct costs or savings from this proposal. However, the proposal’s passage will likely lead to increased litigation and criminal justice related costs. The total potential costs are unknown, but could be significant.

The amendment primarily affects how a court interprets laws. Rights that are considered unalienable or fundamental receive the highest level of judicial review by courts, strict scrutiny. Legislation must pass a three-part test under this standard to prove it serves a compelling government interest, is narrowly tailored and uses the least restrictive means possible.

 Photo courtesy of Wikimedia Commons
Kurt Schaefer | Courtesy of Wikimedia Commons

The measure extends rights related to ammunition and accessories, concealed weapons and personal defense. It also states the changes should not prohibit the General Assembly from weapons restrictions on felons or the mentally ill.

However, it is this change of language to require courts to use strict scrutiny that opponents are fighting the most.

A number of opponents, including St. Louis Police Chief Sam Dotson, St. Louis Circuit Attorney Jennifer Joyce and Jackson County Prosecutor Jean Peters-Baker, challenged the language of the ballot summary earlier this year in Missouri Supreme Court. The court turned down the case because it was filed too close to election day.

Rep. Stacey Newman, D-St. Louis, said she has worked with a number of prosecutors and city officials in the state, including the mayors of Kansas City and St. Louis, to fight the amendment. She said the amendment is unnecessary and would allow criminals to challenge courts for more gun rights, overwhelming the courts with litigation.

“First of all, most people aren’t aware that we already have a right to bear arms in our (Missouri) constitution,” Newman said. “What this would do is make this so a judge would have to apply more scrutiny. This would be inalienable gun rights. I think the majority of us can agree, this would put a giant hurdle in front of law enforcement and prosecutors.”

Louisiana sees litigation spike

Louisiana is often used as an example of a state where gun laws have been challenged as a result of a change constitutional language regarding gun rights. In 2012, voters in Louisiana overwhelmingly approved an amendment that declared gun ownership a fundamental right, subject to strict scrutiny.

Rep. Stacey Newman | Courtesy of Missouri House of Representatives
Stacey Newman | Courtesy of Missouri House of Representatives

The state attorney general’s office has helped district attorneys defend about 200 legal challenges so far, and the state’s Supreme Court has heard four challenges to state gun laws, according to attorney general spokeswoman Laura Gerdes Colligan. In one notable case, a convicted felon argued gun possession charges against him should be dropped. An Orleans Parish judge ruled in favor of the man, but the state’s Supreme Court later ruled otherwise.

Dan Zelenka, president of the Louisiana Shooting Association, supported the amendment in the state. He said Louisiana courts previously evaluated gun laws with a lower level of scrutiny. The intent of the amendment was not to overturn a lot of existing gun laws, he said.

“It looks like the Supreme Court’s attitude is that the existing laws were going to be upheld, but new laws would have to be looked at with an eye toward the strict scrutiny standard,” Zelenka said.

Opponents fear financial burden

Opponents of Missouri’s amendment say strict scrutiny will come at a cost to prosecutors and, ultimately, taxpayers.

In Missouri State Auditor Tom Schweich’s financial summary of the amendment, the Office of the Attorney General, the Office of Administration and the Office of the State Public Defender all predicted it would lead to increased litigation. None of the offices estimated specific financial impacts.

Mark Reading, an opponent of the amendment and former state budget official, submitted estimates that the measure could cost the state and local governments more then $270 million in new security costs, but some have questioned Reading’s estimates. Backers of the amendment did not submit any financial projections to Schweich’s office. 

Schaefer, who is running for state attorney general in 2016, said he doesn’t expect a flood of litigation.

“Could there be some litigation? Sure, there could be,” Schaefer said. “But, your right to keep and bear arms is a specifically enumerated right that you possess already in the Missouri and United States constitution. If there is some litigation to protect that right, then that’s just the cost of protecting the right.”

Overall, Newman said the amendment is part of a trend of the legislature to move forward an agenda when it’s not able to pass new laws.

“This is all about a specific gun agenda,” Newman said. “This is all about an agenda that people want to keep getting reelected to office based on fear of gun rights. To me there’s no other alternative than to look at this as extremely dangerous. If you are a victim of a gun crime, you will lose rights under this.”

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