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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. A bill currently under consideration 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 state 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 won’t go to the governor for a signature, it would appear on the ballot 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 bear 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 judges ruled 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 rule 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,” they 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, but in slightly different versions. It was then 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. Badger staters 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.

Six states do not have a state constitutional protection of the right to keep and bear arms. You can probably guess most of them. 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.
Gun Watch

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  1. Great; but the lawyers sure added a bunch of verbage to what should be a simple revocation of that last bit about legislative privilege, and the addition of the strict scrutiny requirement.

    Generally, when the law becomes so dense that a well-educated citizen had problems understanding it, we have a problem.

    • Not in this instance. A succinct statement offers an activist court, as oklahoma seems to have, an open tablet on which to inscribe 4 or 5 judge’s idea of sound policy. Judges are the last people you want setting POLICY for the rest of us. Judges are elitists, protected, aristocrats who lust to use their power to bring Nirvana to the peons beneath them.

    • An understanding of modern judicial rulings might change your opinion on that.
      IMO the version printed above guarantees the right in it’s purest form: No excise taxes on arms, strict scrutiny in the courts (very important), fundamental right, states clearly that convicted criminals do not have such a right, etc. My only gripe is that it seems to concede (within the state constitution) that regulation is not an infringement, but modern courts seem to unilaterally hold this point so I don’t see it being a huge issue.

  2. I don’t like how the convicted felon and mental issue exemptions are written. I have no problem restricting the bearing of arms while incarcerated or while committed or while determined to be mentally incompetent.

    Either the convict is in jail, they are probation, or they are free. While in jail, no guns. While on probation, if relevant to the crime and an element of probation, no guns. But free is free.

    A person who is I’ll may recover. While committed, no guns. While being treated, if relevant to the illness and prudent during treatment, no guns. If they’re deemed better, free is free.

    If a person is considered incompetent, below the standard of an adult, no guns. If the person has surpassed that standard, even if they are behind their age group, free is free.

    If a person is too dangerous, too unstable, or too incompetent to have a gun, then jail, confinement, or assistance must be the order of the day. You do not leave them to their own devices.

  3. Now they need to let lawful permanent residents get a carry license (or go constitutional carry).

      • Are you a lawful permanent resident or US citizen?

        The current language says being a US citizen is a requirement and has since I first got my license in ’08.

        • It’s possible that someone forgot that there’s such a thing as a legal alien.

          I remember the hysteria over issuing drivers licenses to “non-citizens.” The people screaming their heads off forgot about legal resident aliens. (Eventually they focused on issuing licenses to illegal aliens, which I would agree with them on.)

  4. Personally, I think every gun-friendly state should establish a “State Militia” separate and apart from the National Guard that is a roster of armed trained citizens willing to assist the state as may be needed and when possible. Any law abiding non-criminal citizen should be able to join and the typical CCW requirements and training would apply. Existing CCW holder would automatically be eligible.

    That would take the wheels off of the anti-gun “militia” prerequisite for firearm possession.

    • Then you would have a) a government list of people who own guns and b) a state-side paramilitary force that is not subject to the UCMJ and not bound by posse comitatus.

      Yeah, I can’t see any problems stemming from any of that…

      • b) is not a problem at all; National Guard is already exempt from Posse Comitatus and UCMJ (unless activated by the Feds). This sort of militia would not be activatable by the Feds, so it is no different.
        As for a) the government already has similar capability in the form of looking up form 4473s as well as looking up CCW license holders. Not sure if this would be any different, really.

  5. The law, as it stood, was just fine. We have basically no real regulation against any firearms that aren’t already regulated on the federal level. The only thing is we don’t have constitutional carry.
    At the same time, we have a $1.3bn budget shortfall, due to the fiscal shortsightedness of our oil-bought legislature. Our firearms freedoms are no where near in jeopardy in this state. But our school systems, infrastructure, and government services (particularly to the elderly and disabled) ARE in jeopardy.

    The only thing this state government is good at is pandering to conservatives. They absolutely fail at governing.

    Of course, that’s not even to mention all the problems with the new wording. Ugh, this state…

    • There are some odd regulations on .50 (I can’t recall what it is off the top of my head) and no carry of pistols above .45.

      Also they don’t allow US Green card holders get OK carry licenses dispite every time a state has been sued over this kind of requirement they have lost.

      As to the budget shortfall they could improve that by going constitutional carry and shrinking the size of the OSBI.

    • At the same time, we have a $1.3bn budget shortfall, due to the fiscal shortsightedness of our oil-bought legislature. Our firearms freedoms are no where near in jeopardy in this state. But our school systems, infrastructure, and government services (particularly to the elderly and disabled) ARE in jeopardy.

      Simple solution. Layoff. Private companies do it all the time. Layoff some government workers, they can work in the private industry – actually producing something, or providing a service people actually want. This alleviates the tax burden on the people of Oklahoma and reduces their budget shortfall.

      School systems are supposedly funded by local property taxes. Where is this money? The state of Oklahoma is funding 49% of it’s budget to education alone.

    • Rather like the old Soviet Union. They had all kinds of rights guaranteed by their “Constitution”.

      And every one of them was negated by “except when deemed necessary for state purposes”.

    • But since SCOTUS at least in theory “incorporated” the Second Amendment, why is this even an issue? By that action every state constitution should already be subordinate to the federal Second Amendment. I’m confused.

  6. Constitutions are religious icons and are set up so that amendments are just about impossible. Supreme Courts are dictatorships that legislate from the bench and it is also just about impossible to overturn their rulings. All this shows what a grand mistake the American Revolution was. A superior Parliamentary type of Government makes changing the law at least a good possibility if the will of the people demand it as opposed to a Supreme Court that eliminates the Democratic process altogether. This bill stands no more of a chance of being passed than a snow ball not melting in a blast furnace.

  7. “Any regulation of this right shall be subject to strict scrutiny.”

    Any regulation of this right shall be subject to a boot to the head and politely but firmly asked to leave.

    fixed it for them, free of charge.

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