Prosecutor, others urge residents to take second look at Amendment 5

Saturday, August 2, 2014 | 6:00 a.m. CDT; updated 7:37 p.m. CDT, Saturday, August 2, 2014

COLUMBIA — At first glance, the ballot language on Amendment 5 doesn't appear to be controversial:

"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?"

But ahead of Tuesday's primary election, where the fate of the amendment will be decided, Boone County Prosecuting Attorney Dan Knight is urging voters to take a look at what the proposed amendment will actually do.

"If Amendment 5 passes, criminals will benefit and law-abiding citizens will suffer," Knight said. "Our community will be less safe."

The push for the amendment

Amendment 5 was introduced in January by state Sen. Kurt Schaefer, R-Columbia. Schaefer has said in public forums that the state constitution needs to be updated in light of two Supreme Court cases that both affirm the right to bear arms.

He also said the Second Amendment should have the same protections that other amendments, particularly the Fourth Amendment, currently enjoy.

A spokeswoman for Attorney General Chris Koster said Koster supports the amendment and the right of Missouri residents to keep and bear arms. Koster, who was supported by the National Rifle Association in his previous campaigns, will likely run in the 2016 election for governor, while Schaefer will likely run in the 2016 election for attorney general. 

Before it became Amendment 5, the measure was known as Senate Joint Resolution 36. During the most recent legislative session, it passed the House by a 122-31 vote and the Senate by a vote of 23-8.

A closer look at the constitution

Opponents of the amendment say both the Missouri Constitution and the U.S. Constitution already protect the right to possess firearms and that the changes aren't needed.

Knight called the amendment "completely unnecessary" and said current legislation is sufficient.

Article I Section 23 of the Missouri Constitution's Bill of Rights states: "That the right of every citizen to keep and bear arms in defense of his home, person 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."

Amendment 5 would do three key things to the Constitution, though only one appears in the ballot language:

  • It would re-word the first clause to include "ammunition and accessories typical to the normal function of such arms" as protected by law, and change the second clause to add the defense of family to home, person and property. 
  • It would remove the second clause, which says the law doesn't justify the wearing of concealed weapons.
  • It would add a third clause to make the rights guaranteed by the section unalienable. It also says any restriction on these rights shall be subject to strict scrutiny and says the state is obligated to uphold these rights. It ends by saying legislators could still restrict the gun rights of convicted violent felons and the mentally infirm.

Attorney Scott Wilson, who spoke against Amendment 5 at a League of Women Voters of Columbia-Boone County's candidate forum in July, said he had concerns with the amendment's reach compared to the language on the ballot.

"The actual summary language that's going to appear on the ballot is too short, and it's inaccurate," Wilson said. "Why they chose to put it as a constitutional amendment instead of passing it as a law, I don't know. I think it was for political interests and not legitimate legislative interests."

Wilson also sees the striking of the second clause as an attempt to covertly change the state's conceal-and-carry law.

"That's important because 15 years ago, we voted down Proposition B, which would allow conceal and carry, and here we are 15 years later taking it out of our constitution," Wilson said. "So I think that's an end-around to allow conceal and carry, even without permits."

Knight said he's in favor of the right of law-abiding citizens to have firearms, which is constitutionally protected. He said it's possible to be in favor of the Second Amendment of the U.S. Constitution but against the proposed Amendment 5 to the state constitution.

Constitutional amendments instead of legislation

Wilson is concerned with the legislature's overuse of constitutional amendments as opposed to law. In 2014 alone, voters will cast ballots on five proposed changes.

"A lot of these amendments are junking up our constitution when they should be dealt with by the legislature in Jefferson City," Wilson said. "Our Constitution is meant to be the framework for our laws. It's not supposed to contain every specific state law. Here you're cluttering up our constitution with things that should be state statutes."

Using a constitutional amendment poses other challenges, he said.

"When the legislature debates state statues, a lot of different sides get to put their input into the process so hopefully by the time it passes both houses and is signed into law, the real problems with the law are corrected," he said. "But with constitutional amendments, that doesn't happen. It goes straight to the voters and straight into our constitution."

Language concerns

Another problem with using a constitutional amendment is that terms in the amendment aren't defined. This is one reason why State Auditor Tom Schweich said in a June 12 fiscal note that "the cost of the proposed amendment to the state for the next two fiscal years is substantial." Schweich later came out in favor of the amendment.

Because terms aren't defined and the amendment explicitly states that the state "shall under no circumstances decline to protect" the rights outlined, increased litigation is expected.

That happened in Louisiana, which passed an amendment similar to the one Missouri voters will consider. The Louisiana Law Review noted that the amendment "has given rise to a litany of constitutional challenges to existing Louisiana firearm regulations."

Because litigation is ongoing, the total cost of Louisiana's amendment is unknown.

Knight said he's not looking forward to the increased workload the amendment will bring.

"There's going to be a tremendous amount of litigation that would take quite a bit of time and effort from prosecutors in this office to handle in court," he said.

The costs also stem from the use of the term "strict scrutiny" in the amendment. Wilson said this term is one of the strongest legal protections that can be offered to a right. He says exceptions to the law would have to be "very narrowly tailored" in order for courts to find them valid under the proposed amendment.

In Louisiana, the strict-scrutiny clause was used to strike down the state's prohibition on felons using and owning guns, known as felon-in-possession laws. Knight said he would expect Missouri courts to cite that precedent, and laws that regulate where guns can legally be carried could also be struck down.

"What would likely happen if Amendment 5 passes is reasonable laws that are currently in place which protect the public will be wiped off the books," he said. "People who have been convicted of multiple serious felonies will likely not only be able to possess firearms, they will be able to carry them concealed almost anywhere they choose."

Law enforcement impact

Supporters of the amendment point to the section that reads "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" as a protection against such a scenario.

But Knight said using the term "violent felons" is a problem, because Missouri law does not define a "violent felon." Knight believes felons convicted of crimes such as robbery in the second degree, assault in the second degree, burglary in the first degree, drug distribution and motor vehicle theft would not be considered violent felons.

St. Louis Chief of Police Sam Dotson also spoke in opposition to the amendment because of these and other concerns. Wilson said once politics are removed from the situation, most law enforcement officials oppose the amendment.

"The law enforcement representatives that I've seen who are opposed to it — and there are a lot — are opposed because they think it will weaken some of their tools which keep dangerous felons from possessing guns and committing crimes," Wilson said.

Knight said one of those tools is the felon-in-possession law, which he expects would be struck down due to the amendment, just as it was in Louisiana.

"Violent crimes involving firearms are a significant problem in Boone County, and such cases can be difficult to prosecute," he said.

"If Amendment 5 passes, we would likely lose this very important law enforcement tool, and as a result the safety of this community and our law enforcement officers … will be substantially compromised."

Supervising editor is Jeanne Abbott.

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