OK: Constitutional Amendment Could Strengthen State Protection to Keep and Bear Arms

Representative Dan Fisher  has started the process to strengthen Oklahoma's state Constitutional protection for the right to keep and bear arms in 2015.  State constitutions may not offer absolute protections, but they can be very effective.  A Vermont Supreme Court found their protection so persuasive, that the state has always had constitutional carry.  It was never legislated out of existence as it was in nearly all the other states.   In the opposite direction, six states do not have a state constitutional protection for the right to keep and bear arms.  They are: California, Iowa, Maryland, Minnesota, New Jersey, and New York.  Four of those, California, Maryland, New Jersey and New York easily fall into the 10 most restrictive states in the Union.

The current Oklahoma protection is rather weak:

Oklahoma:  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.  Art. II, § 26 (enacted 1907).

Allowing the legislature the power to regulate the carrying of arms guts one of the main purpose of the constitution: to provide limits on state power.  There is a clear example just south of Oklahoma, in Texas.  There, after the radical republicans were driven from office at the end of reconstruction, one of the tasks of the new state constitutional convention was to restore the right to bear arms.

The Texas right to bear arms was one of the strongest in the nation before the War Between the States or the Civil War, if you prefer.  Even slaves had the right to bear arms, according to the Texas Supreme Court.   When the Democrats rewrote the Constitution in 1876, they left in a clause allowing the legislature to regulate the "wearing of arms", and the legislature simply banned them in most cases.  Historically governments take all the power that they are allowed, and work hard to get even more.

Representative Dan Fisher of Oklahoma hopes to strengthen the state Constitutional protection.  Here is the resolution that he has introduced into the House:

AS INTRODUCED

<StartFT>A Joint Resolution directing the Secretary of State to refer to the people for their approval or rejection a proposed amendment to Section 26 of Article II of the Constitution of the State of Oklahoma; clarifying manner in which citizens may keep and bear arms; stating legislative authority; prohibiting certain laws; providing ballot title; and directing filing.<EndFT>

BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES AND THE SENATE OF THE 1ST SESSION OF THE 55TH OKLAHOMA LEGISLATURE:

SECTION 1. The Secretary of State shall refer to the people for their approval or rejection, as and in the manner provided by law, the following proposed amendment to Section 26 of Article II of the Constitution of the State of Oklahoma to read as follows:

Section 26. A. The fundamental right of a each individual citizen to keep and to bear arms in defense of his home, person, or property, or, 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 legally lawfully summoned, or for any other legitimate purpose shall never not be prohibited; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons infringed. Any regulation of this right shall be subject to strict scrutiny and the State of Oklahoma shall be obligated to uphold these rights and shall, under no circumstances, decline to protect against their infringement.

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 the transfer of arms, ammunition or the components of arms or ammunition.

SECTION 2. The Ballot Title for the proposed Constitutional amendment as set forth in SECTION 1 of this resolution shall be in the following form:

BALLOT TITLE

Legislative Referendum No. ____ State Question No. ____

THE GIST OF THE PROPOSITION IS AS FOLLOWS:

This measure amends the State Constitution. This measure addresses the right of a citizen to keep and bear arms. The changes to this section will make clear what types of weapons and for what purpose the weapons may be kept. It would state that regulations by the state on the right to keep and bear arms would be subject to strict scrutiny. The changes would also allow the state to prohibit certain persons from possessing arms. It would not allow the passage of laws that would require the registration of arms or special taxation of arms.

SHALL THE PROPOSAL BE APPROVED?

FOR THE PROPOSAL — YES _____________

AGAINST THE PROPOSAL — NO _____________

SECTION 3. The Chief Clerk of the House of Representatives, immediately after the passage of this act, shall prepare and file one copy thereof, including the Ballot Title set forth in SECTION 2 hereof, with the Secretary of State and one copy with the Attorney General.

Last year, the amendment was scuttled at the last minute, in conference committee between the House and the Senate. It had passed both with large majorities. It is widely believed that the amendment would easily pass a vote of the electorate. Voters have passed similar constitutional amendments in other states with wide margins. Alabama passed a similar amendment in 2014 with 72% of the vote; Missouri had strengthened its Constitution just months before with 61%; Louisiana in 2012 with 74% of the vote; and  Kansas in 2010 with 88%. Wisconsin voters protected their rights with a strong amendment in 1998 with 74% of the vote.   

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