Missouri Right to Bear Arms, Amendment 5 (August 2014)

Amendment 5 Type Constitutional amendment Origin Missouri State Legislature Topic Firearms Status Approved a

2014 measures August 5 Amendment 1 a Amendment 5 a Amendment 7 d Amendment 8 d Amendment 9 a November 4 Amendment 2 a Amendment 3 d Amendment 6 d Amendment 10 a Endorsements • Full text Advertisements • Polls Expenditures Local measures

The Missouri Right to Bear Arms, Amendment 5 was on the August 5, 2014, primary election ballot in Missouri as a legislatively referred constitutional amendment, where it was approved.

The measure established 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. Additionally, it removed the exception to the former constitutional right to bear arms that explicitly stated it could not be used to justify the wearing of concealed weapons.^[1] The amendment allowed the state to limit the possession of arms by convicted felons and those adjudged as mentally ill. Previously, citizens had the right to bear arms in defense of home, person and property, but the right was not considered “unalienable.”

The terms "unalienable" and "strict scrutiny" in the proposed constitutional changes were both important changes from the point of view of the courts and provided the highest level of legal protection for gun rights in court cases. Inalienable rights are not transferable and impossible to take away.^[2] Strict scrutiny is a form of judicial review regarding the constitutionality of a law. In order for a law to pass strict scrutiny, it must be passed to further a compelling governmental interest and be narrowly tailored to achieve that goal. This level of scrutiny must be applied to any laws regarding gun rights or control in the state going forward following Amendment 5's approval.^[3]

Proponents of Amendment 5 supported requiring these higher standards of review on gun control laws. They also cited the need for the explicit protection of ammunition and firearm accessories. Opponents, however, were concerned that the amendment would make it harder to enact any regulation of guns and violent criminals. Some additionally argued that Amendment 5 was an attempt to circumvent federal law via nullification.

The amendment was sponsored in the Missouri General Assembly by State Senator Kurt Schaefer (R-19) as Senate Joint Resolution 36.^[4] In May 2014, Gov. Jay Nixon (D) chose to place this measure, along with four others, on the August 5 primary election ballot, instead of the November 4 general election ballot.^[5]

Election results

Below are the certified election results:

Missouri Amendment 5
Result		Votes	Percentage
a Yes		602,863	60.95%
No		386,308	39.05%

Election results via: Missouri Secretary of State

Text of measure

Ballot title

The language appeared on the ballot as:

“

[6]

”

The official ballot title and fair ballot language read as follows:^[7]

“

Official Ballot Title: 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. Fair Ballot Language: A "yes" vote will amend the Missouri Constitution to expand the right to keep and bear arms to include ammunition and related accessories for such arms. This amendment also removes the language that states the right to keep and bear arms does not justify the wearing of concealed weapons. This amendment does not prevent the legislature from limiting the rights of certain felons and certain individuals adjudicated as having a mental disorder. A "no"; [sic] vote will not amend the Missouri Constitution regarding arms, ammunition, and accessories for such arms. If passed, this measure will have no impact on taxes. [6]

”

Constitutional changes

See also: Section 23, Article I, Missouri Constitution

The measure amended Section 23 of Article I of the Missouri Constitution to read as:^[1]

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; but this shall not justify the wearing of concealed weapons. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those duly adjudged mentally infirm by a court of competent jurisdiction.[6]

Fiscal note

While no costs were directly cited in Amendment 5's ballot language, Missouri State Auditor Thomas Schweich stated that 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.^[8]

Background

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.^[9]

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.^[10][11]

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.^[10][11][12]

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.”^[11]

Support

Missourians Protecting the 2nd Amendment was the primary supporting campaign for Amendment 5. Supporters of Amendment 5 argued that it would provide necessary, stringent legal protections for gun owners in the state by including language like "strict scrutiny" and "unalienable." They also favored the removal of the exception of concealed carry from constitutional protection. Additionally, they argued that the change would not prevent the legislature from enacting laws regarding gun ownership by convicted violent felons and mentally ill persons.

Supporters

Officials

• Sen. Kurt Schaefer (R-19), sponsor
• Sen. Ron Richard (R-32), cosponsor^[4][13]
• Rep. Jay Barnes (R-60)

Organizations

• Missourians Protecting the 2nd Amendment
• National Rifle Association (NRA)^[14]

Arguments

Even though the Missouri Constitution already provided protections for the right to bear arms in defense of one's home, property and person, supporters argued that the amendment "would force courts to use a higher standard of review when considering constitutionality of gun controls."^[15]

Missourians Protecting the 2nd Amendment provided 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.[6]	”
—Missourians Protecting the 2nd Amendment[16]

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."^[17]

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.[18][6]	”
—Rep. Kirkton

Campaign contributions

Total campaign cash
Support:	$5,000.00
Opposition:	$8,957.83

Missourians Protecting the 2nd Amendment established as a committee with the Missouri Ethics Commission on June 4, 2014. The following totals were as of the required report eight days prior to the primary election.^[19]

Campaign committee & PAC info:

Campaign committee or PAC	Amount raised	Amount spent
Missourians Protecting The 2nd Amendment (CC)	$5,000.00	$0.00
Total	$5,000.00	$0.00

Top contributors:

Donor	Amount
Citizens to Elect Kurt Schaefer Attorney General	$2,500
Friends of Munzlinger	$2,500

Opposition

No on Amendment 5 was a registered campaign committee opposing Amendment 5. Some opponents objected to this measure by arguing that it was an attempt to circumvent federal laws. Others were concerned by its potential impact on the ability to regulate guns due to the high level of judicial review the language of the amendment would create.

Opponents

Arguments

Many General Assembly Democrats opposed the measure on the basis that it would make it harder to regulate guns and violent criminals.^[24]

The Jewish Community Relations Council of St. Louis 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.[6]	”
—JCRC[25]

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.[6]	”
—Bert Brandenburg[26]

The Constitution Party of Missouri opposed 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.[6]	”
—Constitution Party of Missouri[23]

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."^[17]

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.[18][6]	”
—Rep. Kirkton

Campaign contributions

No on Amendment 5 registered as an 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. Raytown Democratic Association and 28th Ward Democrats Campaign Committee were political action committees (PACs) that registered expenditures in opposition to Amendment 5. Their total contributions were spent on other Missouri ballot measures and are not representative of funds raised solely for this measure.^[19]

Missouri Constitution
Preamble
Articles
I • II • III • IV • V • VI • VII • VIII • IX • X • XI • XII • XIII • XIV

Campaign committee & PAC info:

Campaign committee or PAC	Amount raised	Amount spent
No on Amendment 5 (CC)	$6,089.83	$0.00
Raytown Democratic Association (PAC)	$1,875.00	$45.63
28th Ward Democrats Campaign Committee (PAC)	$993.00	$93.32
Total	$8,957.83	$138.95
Note: PACs may be raising funds to support more than one ballot measure. Contribution totals do not distinguish between multiple ballot measures. Expenditures are only those made on behalf of this measure.

Top contributors:

Donor	Amount
Everytown for Gun Safety Action Fund, Inc.	$5,839.83
Bradley Ketcher	$250.00

Reports and analyses

AP analysis

Gov. Nixon's decision to place this measure and four others on the August primary election ballot instead of the November general election ballot had the potential to engender 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 summarized 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."^[27]

Read the full analysis here.

Pew Research Center

Pew Research Center conducted several surveys regarding attitudes towards gun legislation and demographics of gun owners. The Newtown school shooting made a temporary impact in the number of Americans who saw gun control as being more important than protecting the right to own guns. However, the balance between the importance of gun control and gun rights remains about the same, according to the center. As of May 2013 polling numbers, 48 percent of respondents said protecting gun rights was more important and 50 percent said gun control was more important.^[28]

2014 demographics report

According to a July 15, 2014, report, 38 percent of households reported having a gun in their home in the southern region, which includes Missouri. The following percentages are people in each group who said they had a gun, rifle or pistol in their home nationwide:^[29]

• 38 percent of men and 31 percent of women
• 41 percent of non-Hispanic white, 19 percent of blacks and 20 percent of Hispanics
• 51 percent of rural, 36 percent of suburban and 25 percent of urban dwellers
• 41 percent of conservatives, 36 percent of moderates and 23 percent of liberals

Read the full report here.

Laws since Newtown

Another study by the Pew Research Center found that the majority of gun laws passed since the Newtown school shooting were easing gun restrictions. The study, published in December 2013, found that 70 of 109 state gun laws passed since the shooting loosened gun restrictions, while the remaining 39 tightened restrictions. Of the 29 laws passed relating to gun permits, only one did not make the rules less strict, and all 22 laws regarding public carrying laws also lessened restrictions. "On the other side of the debate, 15 of 17 laws sought to make it harder for mentally ill people to buy guns; 12 of 14 laws tightened rather than loosened rules regarding background checks."^[30]

Read the full report here.

Media editorial positions

See also: Endorsements of Missouri ballot measures, 2014

Support

• The Southeast Missourian said,

“	Should Congress and the president pass gun control laws, we believe Amendment 5 will have little value. We believe this is more symbolism, but, in principle, support a "yes" vote on Amendment 5.[6]	”
—Southeast Missourian[31]

Opposition

• The Sullivan Journal said,

“	Amendment 5 wants to guarantee a right to bear arms. [...] We already have the right (2nd Amendment) and any fear-mongering to persuade otherwise is another waste of our time.[6]	”
—Sullivan Journal[32]

• The Kirksville Daily Express said,

“	The right to bear arms is guaranteed in the U.S. Constitution and Missouri Constitution. Adding new language to supposedly strengthen that right that could unintentionally call into question every gun law in the state is not sound policy.[6]	”
—Kirksville Daily Express[33]

• The Missourian said,

“	Amendment 5 concerns the “unalienable” right to keep and bear arms and the state is obligated to uphold that right. [...] we don’t see the need since those rights are protected by the U.S. Constitution.[6]	”
—The Missourian[34]

• The Joplin Globe said,

“	Our big concern about this amendment is the unanswered question of how Missouri gun laws could be affected by the change to strict scrutiny. We don’t think that question has been adequately answered or explained for the public, and we’d like to hear more on it. Nor do we even see this amendment as being necessary to protecting the rights of Missourians. We still look to our nation’s Second Amendment to do that for us.[6]	”
—The Joplin Globe[35]

• The News Tribune said,

“	The legalese and gobbledygook supporting this proposal are unconvincing. The right to bear arms is well-protected without this duplicative amendment.[6]	”
—News Tribune

• The West Plains Daily Quill said,

“	A no vote on the amendment shouldn’t be taken as an anti-gun vote against the right to keep and bear arms. [...] The better message to send is one to the Legislature that it should tell people who bring meaningless propositions to it with the idea getting them put them on a ballot that they are meaningless, and refuse to do so. And we should tell legislators to quit wasting their time debating such issues. If legislators can’t recognize meaningless propositions they are nincompoops.[6]	”
—Frank L. Martin III, editor and publisher of West Plains Daily Quill[36]

• The Columbia Daily Tribune said,

“	Amendment 5 is the ultimate foolish clutter. It would reiterate a “right to bear arms” that already is perfectly clear in state and federal law. ”No” voters probably will be outnumbered at the polls, but they will be on the right side. Amending the constitution should not be an exercise in making frivolous policy statements. Amendment 5 is frivolous and deserves ”no” votes from us all.[6]	”
—Henry J. Waters, III, editor of Columbia Daily Tribune[37]

• 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.[6]	”
—Editorial Board, Springfield News-Leader[38]

• 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.[6]	”
—The Kansas City Star[39]

• The St. Louis Post-Dispatch argued that the courts involved in the lawsuit against Amendment 5 should have sent 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.[6]	”
—Editorial Board, St. Louis Post-Dispatch[40]

• The St. Louis American endorsed a "no" vote on Amendment 5.^[41]

Lawsuits

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.^[42] 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 were sufficient and fair.^[43]

Judge Beetem dismissed the case due to a state law that provided 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 was already on the ballot, and appealed the ruling. The case was scheduled to go before the Missouri Supreme Court on July 14.^[44] 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.^[45]

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.^[46]

Related measures

Voting on Firearms
Ballot Measures
By state
By year
Not on ballot

See also

• Missouri 2014 ballot measures
• 2014 ballot measures
• Missouri Legislature

External links

Additional reading

• Governing, "Missouri Voters Expand Constitutional Gun Rights," August 6, 2014
• PoliticMo, "Missouri voters back constitutional “right to farm”, oppose new tax for roads," August 6, 2014
• The Washington Post, "Why are ballot measures so darn confusing? Because they are supposed to be.," August 5, 2014
• Governing, "Should States Expand Gun Restrictions or Gun Rights?" August 4, 2014
• 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

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