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Missouri voters declare right to keep and bear arms 'unalienable' . . . sort of

And therefore non-negotiable, whatever the electorate says
And therefore non-negotiable, whatever the electorate says
Photo © Oleg Volk. All rights reserved. Used with permission.

In yesterday's primary elections, Missouri voters approved Missouri Amendment Proposal 5 by a strong 61% to 39% margin. The ballot described Amendment 5 this way:

Shall the Missouri Constitution be amended to include a declaration that the right to keep and bear arms is a unalienable right and that the state government is obligated to uphold that right?

State and local governmental entities should have no direct costs or savings from this proposal. However, the proposal’s passage will likely lead to increased litigation and criminal justice related costs. The total potential costs are unknown, but could be significant.

That description was itself the center of considerable controversy, with critics charging that it failed to describe the full effects of the changes it makes to Section 23 of the Missouri Constitution (the state constitution's guarantee of the right to keep and bear arms). This is Section 23 without the new amendment:

Section 23. That the right of every citizen to keep and bear arms in defense of his home, person 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.

Amendment 5 will, among other things, remove the language that denies constitutional protection of the right to carrying concealed firearms. That change was one that the anti-gun critics of the amendment found most objectionable. Why--had they designs on repealing Missouri's concealed carry law, and banning the practice?

Also to the dismay of the gun ban zealots, Amendment 5 alters Section 23 so as to subject all state and local gun laws to the strict scrutiny of the courts, meaning that all such laws must a) serve a compelling state interest, b) be narrowly tailored to serve that interest, and c) do so in the most minimally invasive manner possible.

These are all very positive developments for gun ownership in Missouri, but to describe Amendment 5's effect as making the right to keep and bear arms "unalienable" is to betray a fundamental misunderstanding of that term. Most immediately apparent, the "unalienability" of a right cannot legitimately be held subject to the whim of the electorate. If a right is unalienable, it remains so even if 99% (or, for that matter, 100%) of the voters choose to deny it.

Perhaps even more ridiculously, the language of Amendment 5 (and thus, now, of Section 23 of the Missouri Constitution) contains an explicit provision describing just how the right to keep and bear arms can be "aliened":

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 a result of mental disorder or mental infirmity.

On the one hand, it could be argued that the practical effects of Amendment 5 are all good for gun ownership in Missouri--that the changes are all positive. The state, after all, has long assumed the power to disarm felons and those deemed mentally ill, so this adds no new "gun control."

Okay--fair enough. But on the other hand, by subjecting the fundamental human right of the individual to the approval of the masses, by making legal exercise of that right conditional upon the popularity contest of a vote, this approach voluntarily surrenders the high ground inherent to defending a right that is truly unalienable.

That this gambit carries real dangers is not idle speculation. National Gun Rights Examiner David Codrea has noted over, and over, and over again that rabidly anti-gun former NYC Mayor Michael Bloomberg is busily but quietly mobilizing his billions to forge a well-organized (and lavishly funded, obviously) anti-gun machine in every state. That effort on Bloomberg's part may already be bearing fruit in the state of Washington, where voters appear poised to approve a ballot measure that would ban private firearms sales in the state, as Seattle Gun Rights Examiner Dave Workman has extensively covered for months.

Amendment 5, although a large positive step for Missouri gun owners, lends a veneer of legitimacy to the practice of allowing voters to decide whether or not government is to be forced to recognize our fundamental human rights as "unalienable," and Bloomberg is spending scores of millions to convince low information voters to give the government a free hand. Might we have given up more than we gained?

Update: Seattle Gun Rights Examiner Dave Workman notes that whatever down side there may be to this strategy, at least it gives us the satisfaction of hearing the Bloomberg Moms' (BMs) anguished bleating, in "Antis lament as Missouri voters deliver gun rights victory."

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