Amendment 5, a proposed Missouri constitutional amendment on the Aug. 5 ballot, seeks to protect further the right to bear arms.
"It's going to strengthen the protection that the right to keep and bear arms under the Missouri constitution," said Allen Rostron, a constitutional law professor at the University of Missouri-Kansas City. "Everybody is familiar with the Second Amendment of the U.S. Constitution, of course, but there's also a provision in the Missouri state Constitution that guarantees a right to keep and bear arms, and this is designed to strengthen that right."
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?
To a layman, the language of the initiative is likely to read a lot like the Second Amendment. But critics of the proposal say it belies a more substantive change.
"In practical terms, the amendment would take away the legislature's right to regulate concealed weapons, and it would subject all of our laws to 'strict scrutiny,'" said Chuck Hatfield, an attorney representing groups, including St. Louis Chief of Police Sam Dotson, challenging the ballot language. The lawsuit is currently on appeal to the Missouri Supreme Court, with oral arguments to be heard today.
There's a spectrum of different levels of protections that rights receive, with the strongest being strict scrutiny. Strict scrutiny means the government would have to have a particularly good justification for infringing on that right.
"I think this really goes further than most people want to go," Hatfield said. "It would call into question the ability of the government to regulate concealed weapons. I believe that if the amendment passes, that the permitting requirement [for concealed carry weapons] would be struck down."
Sen. Kurt Schaefer, R-Columbia, and the amendment's sponsor, said it offers an added layer of protection from "anti-gun politicians in Washington, D.C."
“This measure protects a fundamental right that our country was founded upon,” Schaefer said in a statement. “The erosion of even one constitutional liberty signals the vulnerability of them all. This measure is about drawing a line in the sand and making it clear that in Missouri, we will do everything in our power to safeguard the freedoms we’ve enjoyed since the creation of this country.”
Of course, the amendment would not have any bearing on federal gun laws, as Missouri does not have the authority to invalidate federal gun laws.
Schaefer has said the amendment would make Missouri's protection of gun rights among the strongest in the nation. Missouri's proposed amendment is similar to one passed by Louisiana in 2012, which had different language on the ballot.
Louisiana's asked voters if the right to bear arms should require "the highest standard of review by a court."
Rostron said Louisiana's language was more understandable to voters.
"I thought their ballot language was a lot better. Missouri's really sounds like it's just reiterating what is already true. I'd probably be inclined to vote for that; it doesn't sound like it really changes the law," Rostron said. "But if you read the whole measure, you see that no, there actually is stuff in there that significantly changes the legal standards."
A judge, however, has ruled that the language of the ballot is acceptable. In early July, Cole County Judge Jon Beetem dismissed the lawsuit, saying the language was fair.
The ballot language also said out that the amendment could be costly.
"State and local governmental entities should have no direct costs or savings from this proposal," the language reads. "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."
Hatfield argues the costs will be significant, with legal challenges coming to nearly every state gun law. Schaefer has said that if the law can't meet the strict scrutiny test, then it shouldn't be a law anyway.
Follow Chris McDaniel on Twitter: @csmcdaniel
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