Executive Summary
(This is a rough draft. I will refine it as time permits.)
I respond to the Constitution Party's concerns about Amendment 5 point by point, below, but here's a summary and some good links I strongly suggest for anyone who truly wants to understand this issue.
In my opinion, the Constitution Party's assessment of Amendment 5 (SJR 36) is the result of a superficial evaluation and understanding of the core issue and threat to the right to keep and bear arms.
This threat is the same one threatening ALL of our rights. That threat is the judicial system's dumbed-down methods for evaluating the constitutionality of laws that infringe on our rights.
Legal Standards of Review
The most important part of Amendment 5 is requiring the courts to use the most stringent standard of review (strict scrutiny) when someone challenges the constitutionality of a law infringing on gun rights.
We have been losing what should be easy court battles because the courts use dumbed-down standards, like the "rational basis test", which basically means anything the courts want it to mean. The Institute for Justice has done a good job of explaining this problem: https://soundcloud.com/institute.../make-believe-judging-the and ://www.ij.org/.../other_pubs/neily_georgetown_journal.pdf
And here's a simple explanation of standards of review: https://www.youtube.com/watch?v=IzETeTvYDu4&list=PLRXyknBDMNN2w2a-nCTO9XMTqLOsO-cUw
I believe that SJR 36 / Amendment 5 provides the road map for constraining the courts to properly respect and defend our rights in a LOT of areas. They SHOULD already be using strict scrutiny, the highest standard of review, where ALL our rights are concerned.
Mental Illness
Currently, there's very little keeping a bureaucrat or the legislature from denying an individual or a category of people their gun rights -- not as long as they can convince the courts that there is a "rational basis" for doing so. And the vet has little legal recourse.
That's what's happening to Vets returning from active duty.
After Amendment 5, such infringements on a vet's gun rights requires full due process and the restriction would undergo the strictest legal scrutiny available. The result is exactly the opposite of that claimed by the CP!
Addressing the three CP concerns:
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 use the strict scrutiny standard 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.
For liberty,
- Ron
