Missouri Right to Bear Arms, Amendment 5 (August 2014)
|Referred by:||Missouri State Legislature|
|Status:||On the ballot|
- 1 Text of measure
- 2 Background
- 3 Support
- 4 Opposition
- 5 Reports and analysis
- 6 Media editorial positions
- 7 Lawsuits
- 8 Path to the ballot
- 9 See also
- 10 External links
- 11 Additional reading
- 12 References
The Missouri Right to Bear Arms, Amendment 5 is on the August 5, 2014 primary election ballot in Missouri as a legislatively-referred constitutional amendment. The measure, upon voter approval, would establish the unalienable right of citizens to keep and bear arms, ammunition and accessories associated with the normal functioning of such arms, for the purpose of defense of one’s person, family, home and property.
The amendment would allow the state to limit the possession of arms by convicted felons and those adjudged as mentally ill. Currently, citizens have the right to bear arms in defense of home, person and property, but the right is not considered “unalienable.” The amendment was sponsored in the Missouri General Assembly by State Senator Kurt Schaefer (R-19) as Senate Joint Resolution 36.
Text of measure
The language will appear on the ballot as:
The official ballot title and fair ballot language read as follows:
|“||Official Ballot Title:
Fair Ballot Language:
|I • II • III • IV • V • VI • VII • VIII • IX • X • XI • XII • XIII|
|Section 23. That 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|
While no costs are directly cited in Amendment 5's ballot language, Missouri State Auditor Thomas Schweich has stated that, if passed, it "will likely lead to increased litigation and criminal justice related costs." These costs would arise from the amendment providing a new legal ground for challenging criminal laws and local ordinances.
1999 Proposition B
Missouri voters rejected a 1999 ballot measure, Proposition B, which would have authorized law enforcement to issue concealed weapons permits. In 2003, the Republican majority in the state legislature enacted, over a gubernatorial veto, a law similar to what Proposition B would have accomplished. In 2011, both the House and the Senate approved a bill to reduce the concealed gun age in the state of Missouri. Previously, the minimum age was 23. The 2011 bill called for lowering the age to 21. The House voted 125-25, while the Senate voted 27-6.
Senate Bill No. 613
Another 2014 bill, Senate Bill No. 613, sought to nullify federal gun control laws, despite courts ruling against such attempts before. It also would have imposed civil fines or charges on federal agents who enforced such laws. Federal agents knowingly enforcing those laws could have faced civil penalties or prosecution for a crime punishable by up to a year in prison and a $1,000 fine.
The bill became a contentious issue in the state legislature. Beyond the likely court challenges such a law would face, further ire was caused by the addition and subsequent removal of an amendment to the bill. Sen. Jamilah Nasheed (D-5) had proposed an amendment that would have required gun owners to report thefts within 72 hours of realizing a gun was missing. The measure had no enforcement measure provided for it, and was initially adopted. The day after the Senate passed Sen. Nasheed's amendment, the National Rifle Association (NRA) released a statement urging the rejection of SB 613 on the basis of this amendment. The statement claimed that "[those] who are unable to report a lost or stolen firearm within this arbitrary amount of time, would be subject to penalties including: a $1,000 fine, Class A misdemeanor and the loss of their Right to Carry Permit," though such provisions were never part of SB 613.
When Sen. Rob Schaaf (R-34) moved to reconsider the vote in favor of the gun-theft reporting amendment, Sen. Nasheed questioned his motivations for changing his vote since he had supported the amendment's initial passage. Sen. Schaaf responded, “At the time, I had felt that it was expedient to vote for that motion, that amendment, in order to help the bill keep moving. As I reflected on it afterward, I regretted my vote and I’ll tell you why,” at which point Sen. Nasheed interjected, “It’s because the NRA paid off the opposition to the amendment. That’s why. You, and many of those other senators that voted on this bill, are not free thinkers.”
Even though the Missouri Constitution already provides protections for the right to bear arms in defense of one's home, property and person, supporters argue that the amendment "would force courts to use a higher standard of review when considering constitutionality of gun controls."
Missourians Protecting the 2nd Amendment provides the following arguments on its campaign website for Amendment 5:
|“||By updating our Right to Keep and Bear Arms, we will make sure that areas of concern for explicit use of
- Ammunition, firearm accessories, plus the actual commerce access to such components are protected.
- Increased protection extended to your “family” because this is not in the 1875 Provision.
- Eliminates the outdated sentence that prohibits carry of a firearm for self-defense.
- Adds "strict scrutiny" which is the highest level of legal protection for a constitutional right. This level of protection is reserved for rights that are deemed “unalienable or fundamental” (e.g. free speech and right to vote).
- For decades, anti-gun judges and lawyers across America have fought tirelessly against the application of “strict scrutiny” to our fundamental Second Amendment rights.
- Missouri’s current right to keep and bear arms provision is deemed to only deserve a “rational basis” or the lowest standard of review – virtually any rights-infringing law can pass this level of review. This will require the state of Missouri to vigorously protect your rights from federal attacks.
- Because this proposed amendment will protect a fundamental right and will expressly acknowledge the right as “unalienable,” it naturally follows that the protected right requires the highest level of legal protection.
—Missourians Protecting the 2nd Amendment, 
The League of Women Voters provided a nonpartisan voters guide for all amendments in Missouri. They included the following argument in favor of Amendment 5: "Proponents say the measure would strengthen the right to bear arms and force courts to use a higher standard of review when considering the constitutionality of gun laws."
The Franklin County Democrats provided summaries and arguments written by Rep. Jeanne Kirkton (D-91) for and against each amendment on the August ballot. She provided the following arguments in favor of Amendment 5:
|“||With our Second Amendment rights under constant attack at the federal level, Missouri must strengthen the right to keep and bear arms under the state constitution.
The right to keep and bear arms deserves the highest level of judicial protection, just like the rights to free speech and freedom of religion.
Under Amendment 5, the state will still have the authority to enact reasonable laws to protect the public and punish violent felons who possess firearms, but won’t be able to impose restrictions that infringe on the rights of law-abiding gun owners.
Amendment 5 will protect law-abiding gun owners and further guard against unnecessary government overreach.
Although a large majority of current state lawmakers are supportive of gun rights, the makeup of the legislature changes over time. Amendment 5 will secure our right to keep and bear arms both now and into the future.
Missourians Protecting the 2nd Amendment established as a committee with the Missouri Ethics Commission on June 4, 2014. As of July 22, 2014, the committee had not submitted any reports of contributions or expenditures to the commission.
Justice at Stake director of state affairs Debra Erenberg critiques SJR 36 from the perspective of the justice system.
Many General Assembly Democrats have opposed the measure on the basis that it would make it harder to regulate guns and violent criminals.
The Jewish Community Relations Council of St. Louis has urged voters to vote "no" on Amendment 5, saying
|“||In its Resolution on Gun Safety, the JCRC expressed its support for the expansion of the current Federal background check system, for the tightening of regulations relating to the sales and use of guns to reduce the incidence of guns ending up in the wrong hands, and for increased penalties for lawful gun owners if their guns are used in the commission of a crime. [...] Passage of Amendment 5 could jeopardize the government’s ability to prosecute gun related crimes and instances of guns being in the hands of those without a license to own them.||”|
Justice at Stake, a nonpartisan organization which campaigns for fair and impartial courts, heavily criticized Amendment 5 during its legislative debate. Executive Director Bert Brandenburg said of the measure,
|“||Surely state legislators have better things to do than pursue fruitless efforts to punish judges for enforcing the law of the land. Nullification has been rejected throughout American history as an attack on democracy and the rule of law. Rather than usurping the Constitution, state lawmakers who want to change federal gun laws should do what every other citizen has to: write their member of Congress.||”|
—Bert Brandenburg, 
The Constitutional Party of Missouri opposes the measure for the following reasons:
|“||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.
—Constitution Party of Missouri, 
The League of Women Voters provided a nonpartisan voters guide for all amendments in Missouri. They included the following argument in opposition to Amendment 5: "Opponents say the measure would make it more difficult to regulate gun violence."
The Franklin County Democrats provided summaries and arguments written by Rep. Jeanne Kirkton (D-91) for and against each amendment on the August ballot. She provided the following arguments in opposition to Amendment 5:
|“||The Missouri Constitution already provides broad protections to law-abiding gun owners, and the General Assembly has made sure Missouri’s gun laws are among the most permissive in the country.
Our gun rights are safe in Missouri. Lawmakers shouldn’t tinker with them, especially when they can’t point to any evidence that the existing right to keep and bear arms under the Missouri Constitution has proved insufficient.
Amendment 5 would call into question many of Missouri’s gun laws, including those that are intended to keep guns out of the hands of convicted criminals.
By repealing the existing constitutional restriction on the carrying of concealed weapons, Amendment 5 could invalidate the existing law that prohibits conceal-carry except by those who have undergone firearms safety training and have obtained a permit.
Amendment 5 will create endless litigation as people charged with gun crimes assert new rights.
Amendment 5 is both unnecessary and potentially dangerous.
No on Amendment 5 registered as a opposing committee on July 3, 2014. As of July 22, 2014, the committee had not submitted any reports of contributions or expenditures to the commission.
Reports and analysis
|Endorsements • Full text|
|Advertisements • Polls|
Gov. Nixon's decision to place this measure and four others on the August primary election ballot instead of the November general election ballot could have political and legal ramifications, according to Associated Press reporter David A. Lieb. For example, it was presumed that Amendment 1 would draw many rural residents to the polls in November. Since rural Missouri voters tend to vote for Republicans over Democrats, it could have been a bigger boon to Republican candidates to have those voters come out to the November election, rather than the August primary. Similarly, the lawsuit over Amendment 5 was dismissed, at least in part, due to time constraints that would not have applied if the measure was on the November ballot, instead. Lieb summaries the potential impact of gubernatorial placement of ballot measures on the primary ballot, saying, "a governor who doesn't like a particular ballot measure could diminish its political impact by placing it on the August ballot, but that also could hinder the ability of opponents to challenge it in court."
Media editorial positions
- The Springfield News-Leader said,
|“||Unstable, but well-armed, individuals have gunned down politicians, children, moviegoers and college students. To make it more difficult to pass laws to prevent such horror is unconscionable and dangerous.
We support gun rights, but not Amendment 5.
—Editorial Board, Springfield News-Leader, 
- The Kansas City Star said,
|“||No one is contesting the right of law-abiding Missourians to own firearms. The ballot question likely extends gun rights to criminals who shouldn’t have them. Voters must reject this dangerous proposal.||”|
—The Kansas City Star, 
- The St. Louis Post-Dispatch argued that the courts involved in the lawsuit against Amendment 5 should send the matter back to the legislature, saying,
|“||Amendment 5 would add ammunition and gun accessories to constitutionally protected status. It would make these new rights “unalienable,” and require the courts to apply “strict scrutiny” to any challenges to gun laws. This last part is hugely significant, as it could lead to existing prohibitions against dangerous felons from possessing guns to be tossed out. A judge in Louisiana, which recently passed a similar amendment, already made such a ruling. [...] Send the initiative back to the Legislature and let the lawmakers try to fix it. That would take the amendment off the August ballot, but better for the Legislature to get it right (if it can, which is always a crapshoot) than to deceive voters into changing the state constitution in a potentially dangerous way.||”|
—Editorial Board, St. Louis Post-Dispatch, 
The ballot language of Amendment 5 was challenged in court by opponents who argued the wording was insufficient and unfair. In the case, the opponents asked the judge to rewrite the ballot language. The defense, a gun-control activist and the St. Louis police chief represented by Chuck Hatfield, argued that for the judge to do so would be a violation of the separation of powers. They asked, instead, for the judge to send the measure back to the legislature for a rewrite of the summary, if it was found to be lacking. On July 1, 2014, Missouri 19th Judicial Circuit Court Judge Jon Beetem dismissed the lawsuit by ruling the ballot summary of this measure and another regarding a temporary tax increase to fund transportation sufficient and fair.
Judge Beetem dismissed case due to a state law that provides courts no authority to order issues to be placed on the ballot less than six weeks before an election. Legal representatives challenging Amendment 5 said that the law does not apply in this case because the measure is already on the ballot, and appealed the ruling. The case was scheduled to go before the Missouri Supreme Court on July 14. On July 18, 2014, the Supreme Court dismissed the case citing the same state law which forbids courts from changing ballot language within six weeks of an election.
Path to the ballot
- See also Amending the Missouri Constitution
Proposed amendments must be agreed to by a majority of the members of each chamber of the Missouri General Assembly. SJR 36 was approved in the Missouri House of Representatives on May 6, 2014. The amendment was approved for a final time in the Missouri Senate on May 7, 2014.
May 6, 2014 House vote
|Missouri SJR 36 House Vote|
May 7, 2014 Senate vote
|Missouri SJR 36 Senate Vote|
- Missourians Protecting the 2nd Amendment campaign website, Facebook profile & Twitter feed
- National Rifle Association (NRA)
- Missouri Concealed Weapons Law brochure
- Jewish Community Relations Council of St. Louis website, Facebook profile & Twitter feed
- Justice at Stake website, Facebook profile, Twitter feed & Youtube channel
- Journal of Urban Health, "Effects of the Repeal of Missouri’s Handgun Purchaser Licensing Law on Homicides," April 2014
- CNN, "What Missouri’s gun law change did," February 21, 2014
- Johns Hopkins Center for Gun Policy and Research, "Effects of Missouri’s Repeal of Its Handgun Purchaser Licensing Law on Homicides," December 17, 2013
- National Conference of State Legislatures, "POSSESSION OF A FIREARM BY PEOPLE WITH MENTAL ILLNESS: Federal and State Laws," January 2013
- Missouri Senate, "Senate Joint Resolution No. 36," accessed May 7, 2014
- Missouri Senate, "SJR 36 Overview," accessed May 7, 2014
- MissouriNet, "Senate sponsor OK with transportation tax on August ballot," May 26, 2014
- Note: This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.
- Missouri Secretary of State, "2014 Ballot Measures," accessed July 1, 2013
- Associated Press, "Auditor: Gun rights proposal could cost Missouri," June 22, 2014
- Associated Press, "Mo. lawmakers pass bill lowering concealed gun age," May 13, 2011
- USA Today, "Missouri Senate bows to NRA pressure, changes bill," February 18, 2014
- News-Leader.com, "Senate GOP bows to NRA pressure, changes gun bill," February 18, 2014
- NRA-ILA, "Missouri: De-facto Gun Owner Registry Legislation Moving In Missouri Senate! Call Your Senators NOW!" February 12, 2014
- Open States, "Missouri 2014 Regular Session SJR 36," accessed May 27, 2014
- NRA-ILA, "Missouri: Right to Keep and Bear Arms Constitutional Amendment Awaits Action in House," April 17, 2014
- BND.com, "Nixon sets election dates for ballot measures," May 23, 2014
- Missourians Protecting the 2nd Amendment, "Why Vote Yes on Constitutional Amendment #5?," accessed July 11, 2014
- League of Women Voters' Voter Guide, "Constitutional Amendment 5," accessed July 21, 2014
- Franklin County Democrats, "Primary Election Day, August 5th Ballot Measures," July 8, 2014
- Missouri Ethics Commission', "C141380: Missourians Protecting The 2Nd Amendment," accessed July 22, 2014
- MASW, "MASW Calls for No Votes On Amendments 1, 5, and 7," accessed July 15, 2014
- Justice at Stake: Gavel Grab blog, "JAS Criticizes Missouri Bill to Nullify U.S. Gun Laws," April 17, 2014
- The Joplin Globe, "Neosho lawmaker stands by ballot proposal on farming," July 16, 2014
- The Constitution Party of Missouri, "Contact Us," accessed July 22, 2014
- Columbia Daily Tribune, "Gun rights amendment heads to ballot," May 8, 2014
- Jewish Community Relations Council of St. Louis, "JCRC SOCIAL JUSTICE ACTION ALERT: Vote NO on Amendment 5 on August 5," accessed July 15, 2014
- Justice at Stake, "JAS: Missouri Bill to Punish Judges Is Fresh 'Attack on Democracy,'" April 17, 2014
- Missouri Ethics Commission, "C141433: No On Amendment 5," accessed July 22, 2014
- Associated Press, "Analysis: Timing of elections can have political, legal effects for Missouri ballot measures," July 6, 2014
- Springfield News-Leader, "Our Voice: We consider ballot issues," July 22, 2014
- The Kansas City Star, "Vote ‘no’ on gun and data questions in Missouri," June 23, 2014
- St. Louis Post-Dispatch, "Editorial: Court should send dangerous gun amendment back to Legislature," June 27, 2014
- Associated Press, "Lawsuit: Missouri lawmakers would redo gun measure," June 24, 2014
- Associated Press, "Missouri judge rejects challenges to ballot items," July 1, 2014
- KSPR 33, "Missouri Supreme Court will hear challenge to gun measure," July 3, 2014
- Associated Press, "Missouri gun amendment wording will not be changed," July 18, 2014
- Washington Post, "Missouri lawmakers approve ballot vote on gun rights amendment," May 7, 2014
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