OK: Right to Keep and Bear Arms Amendment Will be on the Ballot in 2014

Gun Watch ^ | 30 April, 2014 | Dean Weingarten

[marktwain]

The Oklahoma legislature is sending a constitutional amendment to the people for a vote in November of 2014.   It is meant to clarify and strengthen the right to keep and bear arms.   The desire and need for such clarification is understandable.   The current Article II, Section 26, reads:

“The right of a citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power, when thereunto legally summoned, shall never be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

The problem, obviously, is in the last phrase:  "...but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons.”

It gives the legislature a blank check to do what they want, including a ban on the carrying of any weapons.   Historically, when legislators have this power, they use it.   Most carry of weapons was banned in Kansas for most of the last hundred years.

The replacement of Article II, Section 26, that will be coming up for a vote in November, reads thus:

Section 26. 

A. The fundamental right of a each individual citizen to keep and to bear (that is, to carry) arms, including handguns, rifles, shotguns, knives, nonlethal defensive weapons and other arms in common use, as well as ammunition and the components of arms and ammunition, for security, self-defense, lawful hunting and recreation, in aid of the civil power, when thereunto lawfully summoned, or for any other legitimate purpose shall not be infringed. Regulation of this right shall be subject to strict scrutiny.

B. This section shall not prevent the Legislature from prohibiting the possession of arms by convicted felons, those adjudicated as mentally incompetent, or those who have been involuntarily committed in any mental institution.

C. No law shall impose registration or special taxation upon the keeping of arms, including the acquisition, ownership, possession, or transfer of arms, ammunition, or the components of arms or ammunition.

Such clarifications of constitutional language have been enacted in other states.  Louisiana is the most recent.   When presented to the people, such amendments typically pass with more than 74% of the vote.  I predict that the Oklahoma amendment passes with 80%.   In Wisconsin,  the constitutional amendment passed in 1998 with 74% of the vote.   In Kansas, such an amendment passed with 88% of the vote in 2010.   In Louisiana,  Amendment 2 passed with 74% of the vote in 2012. 

While activist courts may work to water down the effect of such amendments, the public is more engaged in second amendment issues than on most others.  In Wisconsin, when the state supreme court ruled that section 25, even though a fundamental right, was subject to "reasonable regulation", the state elected the Scott Walker administration, which passed one of the least restrictive shall issue laws in the nation, Act 35.    The passage of a concealed carry law was a core issue in the campaign.


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[marktwain]

80% may be a little low in Oklahoma.

[dinodino]

TERRIBLE IDEA. Look at all of the weasel words in the first clause!

If they really want to do this, I’d suggest that the statute read, “The right of the People to keep and bear arms shall not be infringed.”

[marktwain]

I do not see weasel words. I see legislators working hard to prevent the courts form perverting their meaning.

Sad, really, but it has some effect. Look at the Wisconsin amendment 25. seems very clear:

[As created Nov. 1998] “The people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” [1995 J.R. 27, 1997 J.R. 21, vote November 1998]

Yet here is what the Wisconsin Supreme Court ruled:

“The state constitutional right to bear arms is fundamental, but it is not absolute. This section does not affect the reasonable regulation of guns. The standard of review for challenges to statutes allegedly in violation of this section is whether the statute is a reasonable exercise of police power. State v. Cole, 2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328, 01-0350.”

It is very rare for a court to find a law passed by a legislature to be an “unreasonable” exercise of police power.

[First_Salute]

I would keep the existing Amendment.

[Hardastarboard]

Regulation of this right shall be subject to strict scrutiny.

I'm no attorney, but as I understand this term, it essentially means "No ifsies, no backsies, no shi# - we mean it", and no liberal legal mumbo jumbo can be used to redefine the law.

[marktwain]

The existing amendment clearly grants the legislature the power to regulate the carrying of arms.

[yefragetuwrabrumuy]

I still think that state legislatures should pass the ‘common law posse comitatus law’; which is basically a new twist to the Kennesaw, Georgia law requiring adults to be armed.

Basically, the law would say that at the discretion of the Sheriffs of each county, “all adult persons of good character, as determined by the Sheriff” could be deputized for an indeterminate length of time, and as deputies, are *required* to own guns.

The purpose of this is to prevent federal confiscation of guns, unless the feds were willing to confiscate all the guns of all the lawmen in the state.

As with Kennesaw, there would be no enforcement against those who didn’t own guns. But there would be protection from the feds by those who did own guns.

[dinodino]

Sorry, I’m not impressed. I see phrases like, “legitimate purpose,” “regulation of this right,” etc., all of which open doors for future lawmakers to infringe further on these rights.

The Bill of Rights does not grant rights, it enumerates natural rights. By original intent, no Federal or State law can trump these natural rights.

Suppose the new Article touched on the First Amendment. Would the following be acceptable to you?

“Section 26.

A. The fundamental right of a each individual citizen to freedom of speech, including religious speech, political speech, and other types of speech in common use, as well as printing presses, printers, and the components of printing presses and printers, for security, self-defense, lawful speech and recreation, in aid of the civil power, when thereunto lawfully summoned, or for any other legitimate purpose shall not be infringed. Regulation of this right shall be subject to strict scrutiny.

B. This section shall not prevent the Legislature from prohibiting speech by convicted felons, those adjudicated as mentally incompetent, or those who have been involuntarily committed in any mental institution.

C. No law shall impose registration or special taxation upon printers, printing presses, photocopiers, and Web servers, including the acquisition, ownership, possession, or transfer of ink, toner, text processing and HTML editing software, or the components of printers and printing presses.”

Would you be comfortable with that? I sure as hell wouldn’t.

[marktwain]

The basic problem is: How do you put limits on those in power? It is hard to do with people who are unscrupulous.

[Arthur McGowan]

What is the (purported) difference between “bear” and “carry”?

[Iscool]

In Wisconsin, when the state supreme court ruled that section 25, even though a fundamental right, was subject to "reasonable regulation"

Seems to me that a court has no authority to dictate to Congress that a law they passed was subject to regulation...

[jmacusa]

The sole reason for the Second Amendment is to give each individual citizen protection against an over -reaching and or tyrannical government. Anything else, couched in dubious legalese is pure bs.

[RKBA Democrat]

I agree. Keep it super simple. NH has a RKBA clause in its Constitution.