The Second Amendment to the U.S. Constitution guarantees “the right of the people to keep and bear arms.” Nonetheless, Missouri voters in August will consider an amendment to the state’s constitution to expand that further.
The measure, Amendment 5, is to be one of five questions posed to Missouri voters when they go to the polls in this summer’s primary elections. Sent to them by the Legislature last spring, Amendment 5 asks voters to declare “that the right to keep and bear arms is an unalienable right and that the state government is obligated to uphold that right.”
In addition to the traditional Second Amendment “right to bear arms” protections, the Missouri amendment specifically protects ammunition and “accessories typical to the normal function of such arms.” The amendment would carve out convicted felons and those deemed by a court to be of a danger to themselves from the “unalienable” protections.
The measure, sponsored by state Sen. Kurt Schaefer, R-Columbia, passed the Senate by a 23-to-8 vote, and the state House by a 122-to-31 vote. It passed with support from all of the Joplin-area delegation.
In an interview, Schaefer said he decided to push the amendment last year when his committee began investigating the Missouri Department of Revenue for releasing private information on concealed-gun permits to the Social Security Administration. The agency requested the information about more than 160,000 permit holders in 2011 and 2013.
“They said they wanted a list of the gun-permit holders to compare it to a list of people who receive Social Security benefits and make a determination of whether those people had their right to keep and bear arms,” Schaefer said. “They got the list three times when, under state law, that shouldn’t have been disclosed. The next time the Social Security Administration attempts to get the entire conceal carry list, if this passes, it will be clear that Missouri voters have said don’t give it to them.
“When we see intrusions like this, this isn’t hypothetical,” he added.
At the time, the Department of Public Safety said it was acting within the law when it privately released the information to the federal investigators, but the incident sparked a shift in both the leadership of the Missouri Department of Revenue, which actually gives out the permits, and led the Legislature to shift the responsibility to local sheriffs.
How would Amendment 5 address Schaefer’s concern? That has to do with something not in the ballot summary. In the text of the amendment’s wording (which voters can request at the polls) it declares that “any restriction on these rights shall be subject to strict scrutiny.”
Strict scrutiny is one of three types of judicial review used by American courts. The least rigorous scrutiny is known as rational basis review, where the government has to prove that a law is “rationally related” to a legitimate government function. It is not typically applied to fundamental rights. The second type of judicial review is intermediate scrutiny — it is the one that has often been used to look at gun cases (including a Supreme Court ruling that struck down the handgun ban in Washington, D.C., and from which restrictions on the First Amendment have come).
Strict scrutiny, by definition, is the most rigorous. For a law to be upheld under strict scrutiny, it has to meet a three-part test: It must meet a compelling governmental interest, be narrowly tailored and be the least restrictive means of achieving that interest.
“If something already can’t meet a strict scrutiny test, it shouldn’t be the law anyway,” said Schaefer.
St. Louis attorney Chuck Hatfield, who served as chief of staff for a decade to then-Attorney General Jay Nixon, is helping lead the opposition to Schaefer’s amendment. He disagrees with Schaefer. A partner at Stinson, Leonard and Street, Hatfield is representing St. Louis Police Chief Sam Dotson in his challenge to the ballot summary. The summary — limited to 50 words by legislators — does not include any information about the change in the type of judicial review applied to gun rights cases, a key component to the amendment.
“Strict scrutiny is a big damn deal,” Hatfield said. “Right now, the law is that the state has the right to regulate guns and arms in a reasonable exercise of police power,” he said. “Strict scrutiny is a whole other game.
“The law says that they have to advise the voters of the probable effects. Our point is that the fact that if you’re going to change the standard for all gun laws and impact how gun laws are reviewed — (from) reasonable analysis to strict — that’s a pretty important change in the constitution.”
Hatfield said a strict scrutiny analysis could give reason for defense attorneys and public defenders to challenge restrictions on guns in churches or schools, or requirements for training before someone can obtain a concealed-gun permit.
Hatfield and his clients lost in Cole County Circuit Court, and are now appealing directly to the Missouri Supreme Court, which will hear from attorneys on both sides of the issue on July 14.
Schaefer said Hatfield’s arguments are “absolutely absurd.” Pointing to the summary, he said, “The statement that the right is being articulated as unalienable encompasses a broad range of things, including the fact that (review) is elevated.”
Schaefer, who earlier this year announced his candidacy for Missouri attorney general in 2016, has been traveling the state touting the amendment ahead of the August election. Schaefer’s team formed a political action committee a month ago to advocate for the measure in the event significant money comes in on the other side of the issue.
State Rep. Mike Kelley, R-Lamar, said he supported the amendment because of his concern that the federal government might begin to intrude on the “right to bear arms.”
“Unfortunately, the federal government has taken ‘shall not be infringed’ to ‘we’ll infringe as far as we can until someone tells us we can’t,’” he said.
“Take for example, countries that have had firearms taken away,” Kelley said. “Adolf Hitler was quoted in newspapers at the time that he had the first civilization freed from guns. When you have an unarmed populous, there is no way for a populous to defend itself from a tyrannous form of government.”
Kelley acknowledged America is not there, but defended the comparison.
“When you take away those freedoms, you start to see a situation like we had in Nazi Germany. Not on my watch.”
Missourians have already begun absentee voting on the measure. Election day for Amendment 5, as well as the four other proposals, is Aug. 5.