Can Handguns Be Banned in OK? Examining HJR 1026

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:

1. 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.
2. 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.
3. 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.

 

 

 

 

 

 

 

Sen. Rand Paul Filibuster on John Brennan and Drones Strikes on U.S. Citizens

March 6, 2013 C-SPAN ongoing coverage of Sen. Rand Paul (R-KY) filibuster John Brennan CIA Nomination. Includes at length commentary on the using drones over U.S. soil and targeting of American citizens on American soil.

Live:  http://www.c-span.org/Live-Video/C-SPAN2/

From the beginning of the filibuster: http://www.c-spanvideo.org/event/215351#program311354-1

Youtube video covering one hour of 13 hour filibuster: https://www.youtube.com/watch?v=4MwjvOxSgic

ObamaCare: NY Court Deals a blow to one mandate

OK-SAFE, Inc. – On December 5, 2012, the United States District Court for the Eastern District of New York rendered it’s decision on the complaint filed by the Roman Catholic Archdiocese and associated entities on the issue of mandating coverage for contraceptives, including abortifacients.   

This Court “concluded that the suit was both fit for adjudication and that there would be significant hardship to the plaintiffs from withholding judicial review…”

CatholicCulture.org report on this story begins by saying, “A US district court judge has ruled that the Archdiocese of New York’s lawsuit against the HHS mandate may proceed. Other courts have dismissed similar lawsuits on the grounds that the Catholic plaintiffs had not yet suffered injury from the mandate.”

The website Mirror of Justice reports the details of the decision here.

“The United States District Court for the Eastern District of New York has denied in part and granted in part the federal government’s Rule 12(b)(1) motion to dismiss the complaint of the Roman Catholic Archdiocese of New York, Catholic Health Care Systems, the Roman Catholic Diocese of Rockville Centre and Catholic Charities, and Catholic Health Services of Long Island (CHSLI).”

Significant comments made by District Judge Brian Cogan included this statement:

“Moreover, the First Amendment does not require citizens to accept assurances from the government that, if the government later determines it has made a misstep, it will take ameliorative action. There is no, “Trust us, changes are coming” clause in the Constitution. To the contrary, the Bill of Rights itself, and the First Amendment in particular, reflect a degree of skepticism towards governmental self-restraint and self-correction . . . . Considering the extraordinary political passion surrounding the Coverage Mandate from all sides, there is simply no way to predict what, if any, changes to the Coverage Mandate will be made, even if some policymakers favor certain changes.”

NewOK reported this story on 12/12/12 here.

It looks like challenges to the Patient Protection and Affordable Act will continue for quite some time.  The NY District Court decision on one of the PPACA mandates is encouraging to those of us who are striving to reverse this government overreach. 

May the people continue their fight.

George Washington’s 1789 Thanksgiving Proclamation

OK-SAFE, Inc. – As we approach the traditional day of thanksgiving in this country, we are reminded that each day of life is a gift from God – everyday needs to be a day of thanksgiving, with some time spent remembering and acknowledging Who the author is of all our blessings.

The Board of OK-SAFE wishes each of you a blessed, healthy and safe Thanksgiving day.
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1789 Thanksgiving Proclamation
Issued by George Washington

PROCLAMATION by the President of the United States of America:

Whereas it is the duty of all Nations to acknowledge the providence of almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor – and Whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”
Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be – That we may then all unite in rendering unto him our sincere and humble thanks – for his kind care and protection of the People of this country previous to their becoming a Nation – for the signal and manifold mercies, and the favorable interpositions of his providence, which we experienced in the course and conclusion of the late war -for the great degree of tranquility, union, and plenty, which we have since enjoyed – for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted, for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.
And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions – to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually – to render our national government a blessing to all the People, by constantly being a government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed – to protect and guide all Sovereigns and Nations (especially such as have shown kindness unto us) and to bless them with good government, peace, and concord – To promote the knowledge and practice of true religion and virtue, and the increase of science among them and Us – and generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best.
Given under my hand at the City of New York the third day of October in the year of our Lord 1789.

GO. WASHINGTON.

[Source: The Papers of George Washington]

Hebrews 12:28,29 “Therefore, since we receive a kingdom which cannot be shaken, let us show gratitude, by which we may offer to God an acceptable service with reverence and awe; for our God is a consuming fire.”

Stop Obama Care in Kansas Responds to OK-SAFE Comments on Health Care Reform Committee

The following letter of support from our friends in Kansas, who are also engaged in a fight against the implementation of PPACA (the Patient Protection and Affordable Care Act, aka “Obama Care”).  Like Oklahoma, Kansas citizens applied political pressure to their legislators and governor and rejected the Obama Care enabler “Early Innovator” federal grant money.

OK-SAFE thanks them for their support and will continue to offer our support to their efforts against the liberty and privacy killing provisions of PPACA and the ARRA, (the stimulus bill was the real health care reform bill, providing the funding mechanism for electronic health records adoption, the backbone of the inhuman health IT monster called “reform”.)

(See earlier OK-SAFE post entitled OK-SAFE Response to Federal Health Care Reform Committee.)

______________________________________________________________________________________________________

Sunday, November 20, 2011

RE: OK-SAFE comments on the recent Joint Legislative Committee on Health Care Reform Law in Oklahoma.

Dear Amanda,

On behalf of the Stop Obama Care in Kansas (the Republic) (SOCK) tour we are 100% in solidarity with you, OK-SAFE and the citizens of Oklahoma.

In addition I would note that under Article VI cl. 3, of the U.S. Constitution every state and federal legislative, judicial and executive officer must take an oath to “support” the Constitution.  Although the founders left the actual words of this oath of support to the individual states they did write the oath for the President of the United States.  No other officers can have any more or less responsibility that that of the President, although the means to carry one’s oath out will change based on the office held. That oath is as follows:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

-U.S. Constitution, Article II §1.

All of the descriptors of this duty to the U.S. Constitution are action words which clearly indicate that his duty is an active duty not a passive duty. One may not, consistent with their oath to the Constitution, sit quietly by as the Constitution is violated or otherwise attacked.

Also note this duty is by no means limited to military or other physical attacks but includes all attacks including philosophical attacks and legislative, judicial and executive usurpations.  Also those who are not fulfilling their duty in this regard are also failing to support the Constitution and are passively attacking the Constitution.

Under the Kentucky and Virginia Resolves, Thomas Jefferson and James Madison espoused the principle that any time the central government  exceeded its authority under the Constitution then the central government’s actions in such regard was a nullity and of no force and effect upon the sovereign States. They also noted the only way for the states to preserve the Union was to protect the Constitution from such usurpations by the federal government and in fact the States not only had a right but indeed a duty (were required)  to intervene and “interpose” themselves between the central government and their citizens to stop an infringement of the rights of their citizens.

In 1803, Chief Justice John Marshall, speaking on behalf of the U.S. Supreme Court,   affirmed the principle espoused by Jefferson and Madison, holding that any federal law which was not “in pursuance” of the Constitution  was a total nullity upon its inception and never comes into force and effect. Murbarry v. Madison. (See U.S. Constitution Art. VI cl.2.) As such no one is required to enforce, obey or otherwise support such law. In fact to support such an unconstitutional law would be a breach of one’s duty to the Constitution.

Note the Court said the law was a nullity upon its very inception not from the time the Court declared it to be so.

What this means is that all those who are under an oath to the Constitution must in the first instance determine for themselves if a law or regulation is Constitutional.  Once they have made that determination their further conduct is sealed.

It is no excuse for those under oath to say they are “not an attorney” or are not a “Constitutional scholar”. Once they raise their hand and swear their oath to the Constitution they are required to have a working knowledge of the Constitution otherwise they are incompetent to hold office. In other words such oath established a substantive requirement for them to be qualified to hold office, the oath is not a mere formality as most public officials now treat it.

As Justice Scalia said in District of Columbia v. Heller, 554 U. S. ___, and was repeated in M c DONALD et al. v. CITY OF CHICAGO:

“In interpreting this language, it is important to recall that constitutional provisions are “‘written to be understood by the voters.’ ” Heller, 554 U. S., at ___. The objective of this inquiry is to discern what “ordinary citizens” at the time of the Fourteenth Amendment ’s ratification would have understood that Amendment’s Privileges or Immunities Clause to mean. Ibid.”

For those of us who know the law, our public servants have no excuse for their ignorance except for laziness and incompetence.

In Kansas the Governor has declared Obama Care to be “unconstitutional”. He has thereby limited the actions he may take as to Obama Care. Also Kansas has sued the federal government based on Obama Care being unconstitutional. Therefore, the official policy of Kansas is that Obama Care is unconstitutional. Further the Federal District Court and the 11^th Circuit Court of Appeals have found it to be unconstitutional at some level. Therefore, any official in Kansas that moves ahead with Obama Care is violating their oath to support the U.S. Constitution by supporting and or implementing an unconstitutional law.

I am sure you will find that Oklahoma politicians are in the same position.

Thank you for all your effort to return our Republic to Constitutional Governance.

For the sake of Liberty,

Richard D. Fry

Founder / Co-Coordinator

Stop Obama Care in Kansas

General Counsel

Patriot Coalition

816 853 8718

Ah, consensus! Compromising one’s values for a politician’s promise…

“Ah consensus … the process of abandoning all beliefs, principles, values and policies in search of something in which no one believes, but to which no one objects; the process of avoiding the very issues that have to be solved, merely because you cannot get agreement on the way ahead.  What great cause would have been fought and won under the banner ‘I stand for consensus’?” — Margaret Thatcher

The Oklahoma primary, held Tuesday, July 27, 2010, resulted in less than encouraging outcomes for those who know what time it is in America and what is at stake in OK: the continuation of big government assaults on life, liberty and property; the chipping away at this country’s remaining foundations.  In essence, the end of this country as we have known it.

The most-watched race was the OK Governor’s race, a contest between the establishment’s choice, Congresswoman Mary Fallin (a voter of the Bailout and other big-government bills), and OK Senator Randy Brogdon, the constitutional conservative with the grassroots support and the on-point message. Faux conservative vs. the  real deal.

Faux won the primary.  But just barely.

On the Republican ticket, 54% of the primary vote went to Fallin; 46% voted against Fallin.  (Brogdon, projected by ‘experts’ to get 18% of the vote actually garnered almost 40%, with the other two Republican primary candidates drawing roughly 5.5% of the Republican vote). 

This 54/46 vote split is a pretty accurate reflection of the ideological breach in the Republican party.

On the Democrat side, current OK Lt. Governor Jari Askins won over the favored Drew Edmondson, the current Attorney General:  50.28% Askins, 49.72% Edmondson.  Just about down the middle.  

The ‘experts’ were wrong on both the projected Brogdon numbers and the expected Edmondson win. 

The dating game begin.

During the debate and leading up the election Fallin, characterized as a ‘mama grizzly’ by Sarah Palin, ignored the grassroots, refused to debate Randy Brogdon at every opportunity, ran away from tough questions, avoided any situation where there was a hint of being held accountable for her voting record, and wouldn’t committing to reducing the size of government.  

Very un-grizzlyish.  More pudding-ish.

The primary is over and the numbers make it obvious that Fallin does not have enough support to win in November without the committment of that 46% anti-Fallin block.  Hence, the courting and wooing of the Brogdon supporters has begun.  [There are currently more registered Democrats than Republicans in the state of Oklahoma and the Fallin camp knows that in order to win they need all the grassroots votes, plus votes from the Democrat side.]

The skilled and well-practiced establishment machine has already approached a sampling of the grassroots groups and has apparently convinced a few of them that they can be part of driving a ‘hard bargain’ with the Fallin camp, and that if they get behind Fallin-the-grizzly they’ll get certain pieces of legislation passed next session, i.e. Open Carry, no RFID chips in the OK driver’s license, and the Firearms Freedom Act.

Bunkum.  

This is a con-game, played election after election.  It’s a play that works to persuade the grassroots folks to go along with the agenda-driven establishment, filled with promises and assurances. 

The grassroots will be told such things as ‘We got the message loud and clear – 46% voted for someone else,’ or  ‘46% want smaller government,’ or ‘states really do need to stand up to the Federal government,’ and the ever-present ‘help us and we’ll make sure you’ll have a seat at the table.’

The result of buying into this routine will be as it always has been – folks will be used, then ignored after the election. 

Compromising on core principles has never resulted in a good or righteous outcome.  (Think back through your own life – when did compromising on a value or a Godly principle ever net a good result?  What righteous cause in history was ever won by giving up on a core principle, such as the right to life, liberty and property?  What people ever became free because they made a deal with the king?)

If the Oklahoma grassroots groups, who have grown in number and who are right on the issues, compromise their positions for a politician’s promise, their movement will regress and they will once more become meaningless, inconsequential, and to be ignored.

Packaging a candidate?  

Read a little bit recently about the election of Jimmy Carter, the insider who was marketed as an outsider by the political machine, and who was described by one ardent supporter thusly, “He’s a conservative to conservatives, a moderate to moderates, a liberal to liberals.  Jimmy Carter has believability!”  He was packaged and sold to the public by a political machine who knew what the public wanted to hear and see.

But inside the packaging was the real Jimmy Carter and his 4 years in office (1977-1981) proved disastrous.

The political machinery, in order to grab that 46% voting block, will begin marketing Mary Fallin as a constitutional conservative to the constitutionalists, as a tea party candidate to the tea partiers, and as limited-government to the limited-government camps.  Expect to hear and see quotes from the Founding Fathers, Declaration of Independence, etc.

This package will be as genuine as Jimmy Carter.  As Bush and Obama, and all the other fictionalized political characters out there.  And the public will buy it. 

Again.