WHAT OTHERS SAY: Court should send dangerous gun amendment back to legislature

Monday, June 30, 2014 | 2:02 p.m. CDT; updated 5:10 p.m. CDT, Monday, June 30, 2014

Sometime soon, the Missouri Supreme Court likely will be deciding whether voters in the Show-Me State have an opportunity to mess up their already rock-solid Second Amendment rights to bear arms.

Amendment 5 isn’t slated for the Aug. 5 ballot because there’s any threat to the substantial gun rights now enshrined in state law. In fact, the state has protected “the right of every citizen to keep and bear arms” as long as it has had a constitution; it’s right there in Article I, Section 23.

But Missouri lawmakers, mostly the Republicans who control the Capitol with near veto-proof majorities, have been on an NRA-inspired gun craze the last couple of years. They’ve gone so far as to seek (unsuccessfully) to nullify every federal gun law ever passed.

Now, to win favor with a small sliver of their voting base who won’t rest until the Second Amendment is interpreted to mean that every house must have a gun, and preferably several guns of whatever size, shape and killing power is available, they want voters to change Missouri’s completely appropriate and very strong constitutional gun protections. The proposed new wording to the constitution is both poor in grammar and potentially dangerous.

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.

Lawmakers decided not to tell voters about that part.

Missouri’s auditor, Republican Tom Schweich, indicated in the amendment’s fiscal note that it is likely to increase criminal justice and legal costs, as every prosecution of a state gun law, no matter how reasonable, would be questioned in court.

The “good guy with a gun” argument favored by the NRA becomes much more difficult to make when the organization is also protecting “bad guys with guns.”

This fear, and the fact that lawmakers chose not to actually tell voters what was in Amendment 5, caused both St. Louis Police Chief Sam Dotson and St. Louis Circuit Attorney Jennifer Joyce to file a lawsuit against the amendment. They want it to be reworded so voters know the ramifications of what they’re voting on.

There seems little doubt that the court will determine that the wording of Amendment 5 is neither “true or impartial” as required by law. The question the court will have to grapple with is what to do about it?

There is precedent for a judge to simply rewrite the language. That would be the quickest remedy if the goal is to keep the ballot initiative on the August ballot.

But Republicans in the Missouri legislature have made very loud noises in Missouri in the past few years of distrusting “activist judges” when they impose their will on voters.

So the best solution is for the Missouri Supreme Court (which we believe will ultimately rule on the case) to follow the precedent set in 2012 when a lower court determined the legislature’s proposed voter photo identification constitutional amendment was insufficient and unfair:

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.

Copyright St. Louis Post-Dispatch. Reprinted with permission.

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