Monday, April 11, 2016

OK: Oklahoma Senate Nears Vote on Strong Arms Amendment

Oklahoma Second Amendment Supporters, particularly OK2A, have been pushing for a reform of the state Constitution's weak protection of the right to keep and bear arms.  The reform has strong support, but has been bottled up in committees.  The reform is needed because current Section II-26 has been ruled by the Oklahoma Supreme Court to offer little serious protection.  Here is the current version:
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.
You can see the problem "; but nothing herein contained shall prevent the Legislature from regulating the carrying of weapons."  With that clause, the court has ruled that the "bear arms" part of Section 26 is a legal nullity.

The proposed reform passed the House, 66 to 7.  It has been voted out of the rules committee in the Senate with a "do pass" recommendation, but still needs to pass the Senate.  As a Constitutional amendment, it does not go to the Governor for signature.  It goes to the people of Oklahoma as a referendum measure.

Here is the reform.  Underlined words are new; lined through words are removed: 

From the Oklahoma Legislature (pdf):
Section 26.
The fundamental right of a each individual
4 citizen to keep and to bear arms in defense of his home, person, or
5 property, or, including handguns, rifles, shotguns, knives,
6 nonlethal defensive weapons and other arms in common use, as well as
7 ammunition and the components of arms and ammunition, for security,
8 self-defense, lawful hunting and recreation, in aid of the civil
9 power, when thereunto legally lawfully summoned, or for any other
10 legitimate purpose shall never not be prohibited; but nothing herein
11 contained shall prevent the Legislature from regulating the carrying
12 of weapons infringed. Any regulation of this right shall be subject
13 to strict scrutiny.
This section shall not prevent the Legislature from
15 prohibiting the possession of arms by convicted felons, those
16 adjudicated as mentally incompetent or those who have been
17 involuntarily committed in any mental institution.
No law shall impose registration or special taxation upon
19 the keeping of arms, including the acquisition, ownership,
20 possession or the transfer of arms, ammunition or the components of
21 arms or ammunition.
Oklahoma has learned from other states.  Any protection of the right to keep and bear arms must be locked down without any wiggle room; too many states are bearing the scars of "progressive" judges who work diligently to find a way to justify state power to disarm the people.

In Wisconsin, though the 1998 Constitutional amendment guaranteed a right to bear arms for any lawful purpose, some justices wrote that a man concealing a pistol on his person, in his own business, was subject to arrest for violating the State's 130 year old ban on carrying concealed weapons.

The people have learned that they must place "fundamental right" in the Constitution, or judges will say that governments have a fundamental interest in regulation.

The people have learned that if the protection does not say that judges must use "strict scrutiny", judges with say that a statute can override the Constitutional protection if the state merely has some semi-plausible reason for passing the statute.

Reformed Constitutional amendments protecting the right to keep and bear arms have been wildly popular with voters.  The difficulty is getting them on the ballot.  In 2014, the Oklahoma amendment passed both houses in slightly different versions. It was scuttled in the conference committee between the House and the Senate.

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.

Wisconsin had one of the most difficult paths.  Constitutional amendments there must pass the legislature twice, with an election in between.  Then they are put before the people in a referendum.

The Oklahoma amendment has passed the House; it only needs to pass the Senate, where it has passed with wide margins in the past.  It would then go direct to the Secretary of State for inclusion in the next election.

Six states do not have a state constitutional protection of the right to keep and bear arms.  They are California, New York, New Jersey, Maryland, Minnesota,  and Iowa.

 ©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
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1 comment:

Anonymous said...

The last part of this post is what makes my point about the tenth amendment. if it is not in the state constitution the federal constitution is superior to the state constitution, therefore if the state constitution does not address the second amendment the second amendment by its self is the supreme law that must be recognized by the individual states. No state has the authority to change the federal constitution. therefore the second amendment is the supreme law. No state can make laws that conflict with the federal constitution. all any state can do is copy the 26 words of the second amendment into their constitution. anything else is an infringement not authorized by the tenth amendment. there are no valid state gun laws because of the tenth amendment. we either have a federal bill of rights or we do not. would it be legal for a state to pass a law that says if you are not catholic you can not live in this state? In the same vein they can not pass laws that add words to the second amendment. the second amendment is a federally guaranteed right. Not even the US congress is permitted to change the wording of the second amendment. because of Shall Not Be Infringed.