Astonishment and anger was the reaction of gun rights advocates to the recent Missouri Supreme Court decision in the Clay case, which upheld a Missouri statute that prohibited nonviolent felons from possessing firearms. Within hours of this decision, the Freedom Center (principal proponents of the Amendment) put out a news release lambasting the Missouri Supreme Court claiming that: “…the majority opinion openly defies the people’s authority to protect this right or any other constitutional right.”
The attack on the Missouri Supreme Court by the Freedom Center was contrived, since the news release was out the door within hours of the Courts decision. The Freedom Center should not have been surprised because the Court held in an earlier decision that the Amendment did not change the law in any respect because it failed to notify the voters of any substantive change. It simply declared existing law. (See my earlier Post explaining why the Amendment failed to change the law.) In addition, the Court had already ruled in Dotson v. Kander, some eight months earlier, that the state statute prohibiting felons from possessing firearms was constitutional.
Gun rights advocates thought they had shot the moon with the Amendment, only to learn to their complete dismay that they did not even get off the ground. The reason for the Freedom Center to blame the Missouri Supreme Court, was to shift voter angst to someone else for their own massive failure and to lay the groundwork for a larger political agenda to elect our judges directly by the voters. The Freedom Center called for the people to, “…start planning to make constitutional changes to the court itself.” Finding fault is easy. All the Freedom Center needed to do is look in the mirror where they would see their image along with an embedded but shattered picture of State Senator Schaefer.
It would seem that the Freedom Center, as one of the principal advocates for the Amendment would have been deeply involved with the drafting of the Gun Rights Amendment by State Senator Schaefer, who was the sponsor of the Amendment and its leading advocate. The Freedom Center and State Senator Schaefer stomped the state, hand-in-hand with Senator Schaefer explaining to prospective voters that with the passage of the Amendment, Missouri would have “the strongest right to keep and bear arms in any state in the United States.”
After the voters approved the Amendment, Senator Schaefer stunned everyone when he did a complete about-face in his amicus brief by advocating a position before the Missouri Supreme Court that was completely opposite to the position that he took months earlier with the voters. In his amicus brief, Senator Schaefer claimed he was “uniquely qualified” to inform the court of the intent of the legislature and then went on to state that the Amendment, “… was not an attempt to create a right to bear arms in a completely unfettered manner; rather, it was designed to bring Missouri’s Constitution in line with the landmark U.S. Supreme Court decisions.” If Senator Schaefer was “uniquely qualified” to know the intent of the legislature why did he not tell the voters and the Freedom Center prior to the election that the Amendment did not change the law?
In the Clay case, the Freedom Center struck back, calling out the hypocrisy of Senator Schaefer’s change of position:
“Although this Court has cited State Senator Kurt Schaefer’s briefs for the proposition that the amendment to Article I, § 23, did not make any substantive changes to the Missouri Constitution’s protections for citizens’ rights to keep and bear arms, Sen. Schaefer told the media and voters all over the state the exact opposite, that the amendment would provide these rights the highest possible level of constitutional protection.” (My emphasis).
To be sure, the blame for this boondoggle was the failure of Senator Schaefer and the Freedom Center, to recognize that the Missouri Constitution requires ballot titles to be fair and to explain to the voters substantive changes. Senator Schaefer and gun rights advocates conned the voters, with an apple pie and ice cream ballot title, only to find out that it ,.
In order to prevent from striking the Amendment in its entirety the Missouri Supreme Court forged an opinion that limited the impact of the Amendment by holding that it did not change the Constitution. In short, the Amendment simply declared existing law prior to August 5, 2014. Of course, this is not what Senator Schaefer told the voters prior to the election.
How did this happen? Gun rights advocates suggested that Senator Schaefer had gone soft. Not so. He went into survival mode. After all, how would it look, as a candidate for Attorney General, if the ballot title Senator Schaefer drafted and sponsored was found to be null and void? Well, the ballot title was defective; it’s just that the opinion by the Court softened the blow by not striking the Amendment in its entirety, while limiting the impact of the Amendment to a simple declaration of existing law.
In addition, when drafting an amendment, as an advocate for an initiative petition, there is an enormous temptation, as well as political pressure from interest groups, to draft the ballot title in the most favorable light possible to encourage the voters to approve the proposal at the expense of meeting the constitutional mandate that the ballot be fair and explain substantive changes. Senator Schaefer drafted, sponsored and campaigned for a constitutional amendment that he claimed was going to significantly change gun rights laws in Missouri. Faced with the reality that the court might strike the Amendment in its entirety, due to the defective ballot title, Senator Schaefer authored an amicus brief that was completely contrary to what he told the voters and the Freedom Center, prior to the election. Senator Schaefer was desperate to salvage something from his failure in writing a ballot title that was defective.
The Freedom Center blames the Court for ignoring the will of the voters by evoking statements by Thomas Jefferson that the government derives its power “from the consent of the governed.”
What the Freedom Center conveniently overlooks is the need for well-informed citizens as a predicate for a constitutional amendment. Think ballot title. As Thomas Jefferson stated: “An enlightened citizenry is indispensable for the proper functioning of a republic.” “Self-government is not possible unless the citizens are educated sufficiently to enable them to exercise oversight.”
Howard Wright© 2016
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