Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is an unalienable right and that the state government is obligated to uphold that right?
That’s the official question that Missouri voters will consider at the August primary election. But the questions behind the question are: Should we put an asterisk by the Second Amendment or should laws that impact Second Amendment rights be subject to the same rigorous judicial scrutiny as laws that impact the First Amendment and other fundamental rights?
In particular, this initiative, sponsored by Sen. Kurt Schaefer (R-Columbia), would amend Article I, Section 23 of the Missouri Constitution to require laws which restrict Second Amendment rights be subjected to “strict scrutiny” – the same legal test applied to defend freedom of speech and equal protection regardless of a person’s religion, race, or nationality.
Under the strict scrutiny test, a law only survives constitutional challenge if it is justified by a compelling governmental interest and narrowly tailored to achieve that goal or interest.
The United States Supreme Court has consistently applied the “strict scrutiny” test to rights it deems fundamental – those which are “implicit in the concept of ordered liberty” or “deeply rooted in this Nation’s history and tradition.”
For over a century, however, the Supreme Court did not consider any cases which required it to determine whether the Second Amendment was just such a “fundamental right.” Then, in 2008 and 2010, the Court decided the respective cases of Heller v. Washington, D.C. and McDonald v. Chicago.
In Heller, the Court struck a D.C. ordinance that prohibited the possession of handguns for nearly all residents. But because Heller involved an entity of the federal government and not a state, the Court did not directly decide whether the Second Amendment’s right to bear arms was a fundamental right that would be applied to the states.
Two years later, in McDonald, the Court struck a similar gun ban from Chicago. In the process, it took the next step, and held that the right to bear arms is a fundamental right. As explained by Justice Alito, “Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and … individual self-defense is the central component of the Second Amendment right.” Moreover, the Second Amendment, the Court found, is “deeply rooted in this Nation’s history and tradition.” In fact, it predates the United States. In 1689, the English Bill of Rights includes its own version of the Second Amendment – and in 1765, Blackstone described the right to keep and bear arms as “one of the fundamental rights of Englishmen.” Our Founding Fathers agreed and included the Second Amendment in the Bill of Rights.
Though it struck the gun bans in question in both Heller and McDonald, the Court declined to apply the same strict scrutiny test that applies to other fundamental rights. In Heller, Justice Scalia confessed to the gap that the Court was leaving in constitutional law, writing that, “since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field, any more than … our first Free Exercise Clause case left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications.”
Over the past two legislative sessions, I’ve frequently commented that our Constitution is not some cheap Chinese buffet where we pick-and-choose the provisions we like, and ignore the ones we don’t. That remark was made in the context of HB 436, a plainly unconstitutional bill that attempted to nullify all federal gun laws and criminalize their enforcement by federal or state law enforcement officials. As explained by Robert Levy, chairman of the Cato Foundation (the organization that found the plaintiff and funded the lawsuit in Heller v. D.C.), “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”
The Chinese buffet explanation holds true here as well. Though some gun control groups may wish it weren’t so, there is no asterisk by the Second Amendment that permits courts to consider it a lesser part of our Constitution. For our state constitution, Amendment 5 fills the gap left by the Supreme Court decisions in Heller and McDonald, and ensures that, at least in Missouri state courts, Second Amendment rights will be accorded the same deference as every other fundamental right. I’m hope you’ll join me in standing up for the Second Amendment in August by voting Yes on Amendment 5.