Surprise! It is hard to imagine that Missouri voters would be asked to adopt a constitutional amendment in August 2014, to protect the right to keep and bear arms that did not change the Missouri Constitution. This is exactly what happened when the Missouri Supreme Court held in Dotson v. Kander, that the constitutional Amendment, to protect the right to keep and bare arms (Amendment), did not change existing law. In other words, the Amendment did not change the Constitution. This seems very strange considering the Amendment, showed on its face, what would appear to be significant changes to the Missouri Constitution. See discussion in BALLOTPEDIA and smart-decisions discussing the import of the Amendment.
So what happened? The law prior to Dotson v. Kander (Dotson) was that post-election challenges to ballot titles were limited. In a breathtaking break with earlier decisions The Court held that post-election review of a ballot title was available, allowing the Court to review the ballot title to determine if it communicated to the voter’s significant changes to the Missouri Constitution with respect to the right to keep and bare arms.
Since the actual language in a constitutional amendment may be long, complicated and burdened with legalese a summary of the amendment is prepared to describe in a short statement the changes for the voters, which is known as the ballot title. The voters are asked to vote “yes or no” on the question presented in the ballot title. In doing so they are effectively approving the language in the Amendment making it important that the ballot title shows significant changes made by the proposal. Persons who challenge a ballot title must prove that the ballot title is “insufficient or unfair.” In order to be sufficient and fair, the ballot title “…must state the consequences of the initiative without bias, prejudice, deception, or favoritism.”
The ballot title for the Amendment read as follows:
”Shall the Missouri Constitution be amended to include a declaration that the right to keep and bare arms is a unalienable right and that the state government is obligated to uphold that right?”
The focus of the Courts review of the ballot title was on the phrase “inalienable right” and the statement that “state government was obligated to uphold that right.” The question was whether or not these two statements communicated to the voters’ significant changes to the pre-August 2014 Missouri Constitution?
The phrase in the pre-August 2014 of the Missouri Constitution to keep and bare arms “shall not be questioned” was the functional equivalent (my words) of stating that the right was an ‘inalienable right.” In other words, this right was already in the Missouri Constitution; therefore, a declaration in the ballot title that the right was an “inalienable right” did not change the right to keep and bear arms that was in the pre-August 2014 Constitution.
The Court concluded that the phrase “state government was obligated to uphold that right” in the ballot title added nothing because the obligation to defend the Constitution has always existed not only for the right to keep and bear arms but all other provisions of the Missouri Constitution; therefore, adding this phrase did not change the pre-August 2014 Constitution. This was the easy part because the ballot title communicated absolutely nothing to the voters about significant changes in the Constitution. The Court noted that when the legislature draws the ballot title, like they did in this case the ballot title is especially important.
Having concluded that the ballot title for the Amendment failed to communicate any significant changes in the Missouri Constitution the Court focused on the language in the Amendment to determine if it actually changed the Missouri Constitution. This was the hard part because if the court concluded that the Amendment significantly changed the Constitution it was seemingly under an obligation to invalidate the election. This is no small matter considering that great deference should be given to constitutional amendments adopted by the voters.
To understand the difficulties that this presented, it is necessary to examine the actual language of the Amendment, which is shown below. Language in bold shows what was added and language that was deleted is shown as struck through.
“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 adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.”
Further examination of the Amendment by the Missouri Supreme Court, showed that the Amendment did not significantly change Missouri law as discussed below.
The Court considered the language that stated any “…restriction on these rights shall be subject to strict scrutiny…” concluding that the pre-August 2014 case law interpreting the right to bear arms in the United States Constitution and the Missouri Constitution, already required “strict scrutiny.” Therefore, adding the strict scrutiny language did not change the pre-August 2014 Constitution. While the Court did not determine the level of strict scrutiny, it did note that precedents established by United States Supreme Court in interpreting the right to keep and bear arms “is not unlimited.”
Deletion of Concealed Weapons Language
One of the changes to the Constitution deleted the phrase “but this shall not justify the wearing of concealed weapons.” The Court concludes, “It was not necessary to include this deletion in the summary statement as the legislature continues to have the authority to regulate concealed weapons just as it did prior to the amendment.”
Ammunition and Accessories Provision
The Amendment extended not only the right to keep and bear arms, but also the right to keep and bear ammunition and accessories “typical to the normal function of such arms.” Applying the ordinary definition of the meaning of the word “arms” the court noted that this could include ammunition. In other words, the right to have ammunition and accessories for such arms was already in the pre-August 2014 Constitution. Furthermore, the omission of this from the ballot title was not so material that a failure to include this in the ballot title did not make the ballot title “insufficient or unfair.”
There are still many unanswered questions about this Amendment. What we do know is that the Missouri courts will interpret the right to keep and bear arms the same as the United States Supreme Court.” In addition, new interpretations that broaden the right to keep and bear arms post August 4, 2014 by the United States Supreme Court would be incorporated as a matter of law into the Missouri Constitution.
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