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LEADING CONSTITUTIONAL ATTORNEY WARNS OF GUN RIGHTS PROBLEMS IN SB 727 |
Education Reform -- Constitutional Principles Must be Considered |
April 12, 2024 On April 6 I reported gun rights related concerns about SS#2 SS SCS SB 727 after an alert activist discovered that the definition of “home school” was changed in a way that would apply that definition beyond the narrow section of statutes the current definition applies to. The concern is that every Missouri statute that applies to schools could potentially be applied to home schools, including those dealing with weapons violations. For details about that concern, go to: https://www.mofirst.org/issues/education/Drafting-Error-in-SB727-Outlaws-Guns-in-Homeschools.php Over the last few days quite a few people have weighed in on the matter, including House and Senate Research, an attorney retained by the Speaker of the House, and a top attorney retained by an activist who opposes SB 727. See the links at the bottom of this message for their opinions.
LEADING CONSTITUTIONAL ATTORNEY WARNS OF GUN RIGHTS PROBLEMS IN SB 727 The latest legal expert to weigh in is particularly qualified to evaluate the risks to gun rights that would result from passage of SB 727 in its current form. Dave Roland is the Director of Litigation at the Freedom Center of Missouri, a public interest law firm. He offers his evaluation as a public service and is not being compensated for it. I believe it to be objective. Mr. Roland played a critical role in the drafting of the 2014 changes to Article I, Section 23 of the Missouri Constitution, our “right to bear arms” clause in the Bill of Rights. (Amendment 5 on the August 2014 ballot.) He was also instrumental in drafting of the Second Amendment Preservation Act (SAPA) that set the standard for similar laws across the country. More importantly, Mr. Roland was deeply involved in the series of Amendment 5 cases leading up to and after the Amendment 5 vote, and presented the oral arguments in the pivotal State v. Clay case that delimited the scope and application of Article I, Section 23 going forward. The changes Missouri voters adopted in 2014 make Article I, Section 23 the strongest gun rights protection in the United States, but as you will see from Mr. Roland’s assessment, contrary to some of the other opinions, we can not rely on Missouri Courts to properly apply those protections. Stop and read Dave Roland’s opinion here before going on: https://www.mofirst.org/issues/education/Roland-on-SB727-the-Right-to-Keep-and-Bear-Arms-and-Missouri-Courts.pdf
Also – crucially for the bill at issue here – the Court of Appeals held that the right to keep and bear arms had limited (if any) application “in sensitive places such as schools and government buildings." - Dave Roland
The legislature should also be aware of the lengths to which some courts have gone to use the definition of “school” to justify restrictions on the possession of firearms by law-abiding citizens. - Dave Roland
BEWARE OF “LAWFARE” We live in a time when government entities justified ignoring basic constitutional protection of liberty by claiming extraordinary pandemic exceptions. And this is a time when hundreds of peaceful protesters, as well as a former president, have been threatened with insurrection charges in what can only be described as “lawfare” – the weaponizing of law against political adversaries. I know a little about lawfare. Several years ago the president pro tem and former majority floor leader of the senate instigated bogus ethics charges against me (claiming I should have to register as a lobbyist). I spent four years of litigation fighting the $1000 fine and other demands, but finally prevailed with an en banc opinion out of the 8th Circuit U.S. Court of Appeals. I was fortunate to have the Institute for Free Speech representing me pro bono, but most of the January 6 defendants have not been so fortunate and home school folks targeted by a progressive prosecutor might not, either. (The court ordered the Missouri Ethics Commission to pay many tens of thousands of dollars to my attorneys when we prevailed.)
WHAT ELSE HAS BEEN MISSED? The home school definition problem can be easily fixed if the House of Representatives is allowed to do what a bicameral legislature is designed to do – deliberate and vet legislation that comes from the other chamber, and amend it if necessary. In this case the scope of the home school definition could probably be left the same as in current statute. The definition of Family Paced Education (FPE) should also be left the same, plus the specific handful of statutes dealing with subsidies that are the core of SB 727. “For purposes of state law” should be removed. But even if the home school definition is fixed, one has to wonder what else has been missed in this bill that exploded from just a dozen pages to about 168 pages of questionable amendments.
OTHER PROBLEMS WITH SB 727 Even the things that we have not missed militate against SB 727. It violates constitutional mandates to the legislative process and tramples on free market principles. The House of Representatives really should just vote down SB 727, or at very least it should allow amendments to make this bill “less bad,” Read about the other problems with SB 727 here: https://www.mofirst.org/emails/SB-727--Senate-Republicans-Duped-Again.php
WRITTEN LEGAL OPINIONS OF SB 727 (Legal Opinions expressing concern about SB 727) Dave Roland: https://www.mofirst.org/issues/education/Roland-on-SB727-the-Right-to-Keep-and-Bear-Arms-and-Missouri-Courts.pdf Schneider-Law: https://www.mofirst.org/issues/education/Schneider-Law-Opinion-SB727-Gun-Rights-04-10-2024.pdf
Senate research: https://www.mofirst.org/issues/education/Senate-Research-opinion-SB727-Gun-Rights-04--08-2024.pdf Marc Ellinger: https://www.mofirst.org/issues/education/Ellinger-Law-Opinion-SB727-Gun-Rights-04-09-2024.pdf
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