Proposed amendment would make Missouri gun rights among the strongest

07/06/2014 6:26 PM

07/21/2014 12:40 PM

If a measure on the August ballot passes, it could make Missouri’s gun rights protections among the strictest in the country. But all the consequences of the amendment are up for debate.

Supporters say the measure would simply add to Missourians’ gun rights. Critics warn that it could put more guns in the hands of criminals.

The basic terms of the proposed constitutional amendment are clear, though.

For one, it would add ammunition and accessories to the items people have a right to keep, and it would add family to the list of things people have a right to defend.

Those rights would be declared unalienable by the amendment. Restrictions on those rights would be subject to strict scrutiny, and the state would be obligated to uphold those rights. However, legislators could still pass laws limiting the rights of violent felons or people with a mental illness.

The “strict scrutiny” portion of the proposal would be the biggest change for Missouri residents, said Allen Rostron, a professor of constitutional law at the University of Missouri-Kansas City. It would hold restrictions on gun rights to the highest level of judicial review.

“It would be a pretty significant switch in the legal standard,” he said.

For the sponsor of the amendment, the biggest change would be to make it clear that the right to bear arms is unalienable in Missouri.

“The way to make sure we’re protecting the right in the highest way possible is exactly what’s in Amendment 5,” said Sen. Kurt Schaefer, a Columbia Republican.

The amendment would allow residents to make sure any attempt to infringe on their right to keep and bear arms would be subject to the highest level of court scrutiny, he said.

“That’s what it does, and that’s really all it does,” Schaefer said.

Schaefer said that if the amendment passes, it would make Missouri’s constitutional enumeration of the right to bear arms one of the strongest in the country.

Rep. Paul Curtman, a Union Republican, praised the inclusion of ammunition and accessories in the amendment, saying it protects against legislation that could limit firearms usage by making ammunition tougher to get.

“Unless the ammunition is also protected, then the use of a firearm can be limited or obsolete,” he said.

But Senate Minority Leader Jolie Justus, a Kansas City Democrat, said she thought the amendment was “completely unnecessary” because the federal and Missouri constitutions already protect the right to bear arms.

“Because we don’t know exactly what it does and because it’s not necessary, we should not participate in this experiment,” she said.

Jackson County Prosecutor Jean Peters Baker is worried that its passage could lead to unintended consequences. She said the amendment would surely be litigated in the courts, so its ultimate effect would depend on how judges rule.

She is concerned, for example, that court challenges could jeopardize the weapons charges she brings against criminals. She also questioned the language of the amendment that says the legislature could still pass laws limiting the rights of “violent felons,” saying that Missouri has no legal definition of a violent felon.

Baker said she expects a “grand amount” of litigation stemming from the amendment if it passes.

The ballot text listed on the Missouri secretary of state’s website says the amendment’s passage probably would lead to more litigation and criminal justice-related costs. The potential costs could be “significant,” it says.

Schaefer agreed there could be some litigation stemming from the amendment, but said if it keeps people’s rights from being infringed, then that’s a cost that needs to be paid.

In 2012, Louisiana adopted a constitutional amendment that strengthened the right to bear arms, declaring the right fundamental and subjecting restrictions to strict scrutiny.

According to Louisiana’s Office of the Attorney General, four Louisiana Supreme Court cases have been decided so far regarding the amendment.

In its most recent decision regarding the amendment, the Louisiana court upheld the constitutionality of an existing law that restricts felons’ gun rights.

Spokesman Steven Hartmann said district attorney’s offices throughout the state have also defended many of Louisiana’s criminal statutes in light of the amendment. The state attorney general’s office has helped district attorneys with about 200 cases concerning the amendment.

Rostron of UMKC said he could foresee more litigation challenging Missouri gun laws over the next five or 10 years, but he didn’t expect the number would be enormous.

“When the law changes, it takes a while to work things out,” he said.

And although passage of the amendment could be significant, Rostron said he didn’t think its effects would be dramatic because Missouri law largely repeats federal law.

“It would be an exaggeration to suggest that things will dramatically change overnight,” he said.

A lawsuit challenging the ballot summary language, asking that the court either rewrite the summary or send it back to the legislature, is currently being appealed to the Missouri Supreme Court, said Chuck Hatfield, an attorney in the lawsuit.

Challengers contend the ballot omits mentioning important aspects of the amendment.

Oral arguments have been scheduled for July 14.

To reach Allie Hinga, call 816-234-4070 or send email to

The proposed amendment

Currently, the Missouri Constitution provides “that the right of every citizen to keep and bear arms in defense of his home, person or 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.”

Amendment 5 on the Aug. 5 ballot 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.”

Under the Missouri Constitution, passing an amendment requires a simple majority of votes, and the amendment would go into effect 30 days after the election.


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