OK-SAFE, Inc. – This explanation by OK2A was so well done we decided to post it in it’s entirety.
Worth remembering as the debate on “2nd Amendment rights” continues in 2014, is that the “right” to self-defense is an inherent right – you’re born with it. The right to protect one’s life predates any constitution.
From our friends at OK2A, 2-4-2014:
Can Handguns Be Banned in Oklahoma? By Tim Gillespie
Okay; before you accuse me of being crazy or of trying to over-sensationalize the subject, hear me out because the answer to this question, according to the state courts, is yes. Before I get into what the courts said, let’s start with the Oklahoma Constitution.
One concern is the problematic wording of Article 2, Section 26 of the Oklahoma Constitution (our state version of the Second Amendment). It says, “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” (emphasis added). The first part of the sentence is solidly worded. The problem is everything after the semicolon. The Oklahoma Constitution gives the legislature the power to regulate the carrying of weapons without limitation.
In 2012, OK2A worked with several legislators on the Open Carry bill. We added several other measures into that bill, including one that made it legal to carry an unconcealed weapon on your own property for the purpose of self-defense and without a permit. It was illegal for you to carry an unconcealed handgun on you own property until November, 2012! Why? Because the Oklahoma Constitution says the Legislature has the unlimited power to regulate the carrying of weapons.
Another problem comes courtesy of the Oklahoma Supreme Court’s 1908 decision in ex parte Thomas. Mr. Thomas was arrested in Payne county for carrying a concealed handgun. His conviction was appealed to the State Supreme Court. In this case, the Court said that the state constitution does NOT guarantee the right of defense to an individual, totally ignoring the first half of Article 2, Section 26. They claimed that the right only applied to the militia. They went on to say that because handguns aren’t effective militia weapons they are not protected arms.
The Oklahoma Court of Criminal Appeals took this a step or two farther in their 1929 decision in the case Pierce v State. Mr. Pierce was arrested after a search warrant was executed on his house. He was suspected of bootlegging but no still was found. Having been ordered out of his house while the search was conducted, Mr. Pierce was standing in his yard with a Colt revolver in his belt. He was arrested for carrying an unconcealed handgun on his own property. During his appeal to the Court of Criminal Appeals, the Court stated that the Legislatures ability to regulate the carrying of weapons extends beyond public areas and onto private property. (Remember, the state constitution does not limit the Legislatures reach in regulating the carrying of weapons.) Furthermore, the Court asserted that the government “has power to not only prohibit the carrying of concealed or unconcealed [pistols or revolvers], but also has the power to even prohibit the ownership or possession of such arms.”
The Oklahoma Supreme Court cited Thomas and Pierce as recently as 1998, meaning that it is established case-law. This is another problem in and of itself. Judges seem to care more about what other judges say than what the Constitution or law says. So, to get the courts to reverse course on this issue will be nearly impossible unless they have something entirely new to look at. Enter HJR1026.
The product of more than two years of research, HJR1026 addresses these issues and the many ridiculous gun laws on the books in Oklahoma. HJR1026 would replace the current Article 2, Section 26 with the following:
- The fundamental right of each individual citizen to keep and bear (that is, to carry) arms, including handguns, rifles, shotguns, knives, non-lethal 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 lawfully summoned, or for any other legitimate purpose shall not be infringed. Any regulations of this right shall be subject to strict scrutiny.
- This section shall not prevent the Legislature from prohibiting the possession of arms by those convicted of any violent or otherwise dangerous felony, those adjudicated as mentally incompetent, or those who have been committed in any mental institution.
- No law shall impose licensure, registration, or special taxation on the acquisition, ownership, or possession of arms, ammunition, or the components of arms or ammunition.
This new language would give Oklahoma the strongest constitutional protection of any state in the Union. Not only does it recognize the individual’s right to self-preservation and the right of the state to raise a state guard, it protects recreational use of firearms. The wording of the proposed amendment also addresses the bad case-law previously discussed. Furthermore, the requirement that judges use “strict scrutiny” in their review of Oklahoma’s firearms laws will restrict the government’s ability to regulate the possession and carrying of firearms to a higher degree.
There are three levels of scrutiny used by the courts: rational basis scrutiny, intermediate scrutiny, and strict scrutiny. Currently, Second Amendment law is reviewed using intermediate scrutiny, which only requires the state to show they have some compelling interest. Strict scrutiny, however, requires not only a compelling interest but also requires the state to use the least disruptive means possible when regulating the right. In other words, case-law that would allow the state to ban handguns will not withstand strict scrutiny.
Now, back to the title of this article. We are not over-sensationalizing the situation. Yes; I know this is Oklahoma and the likelihood that our state legislature and governor would actually collude to ban handguns is far-fetched – at least it is today. I’m sure that if you could travel back 20 years in time to meet with a group of Coloradans to tell them they would have to mount a recall effort to deal with a state legislature bent on passing draconian gun control laws, they wouldn’t believe you. The political winds can change quickly. We want to fix it before it has a chance to become a problem.
Beyond that, just including the requirement for strict scrutiny in our state’s constitution will strengthen our position when dealing with obstinate state legislators as we continue to deal with some of our state’s more impractical gun laws and will make it easier to deal with these in the courts when the legislature refuses to act.
HJR1026 is a critical piece of legislation. Please call your state representative and state senator and ask them not only to support it, but to sign on as a co-author. The House switchboard number is (405) 521-2711 and the Senate switchboard number is (405) 524-0126. You can also download our issue brief on the measure here.
OK-SAFE, Inc. Blog 