Sunday, September 28, 2014

Why Alabama Amendment 3 would strengthen gun rights, and why it will probably fail to be adopted.

There is a proposed Amendment to the Alabama Constitution that seeks to strengthen the right to keep and bear arms in the state.  The Amendment, which will appear on the next ballot as Amendment 3, would:
Amendment 3
If approved by voters, the constitution would be amended to explicitly "provide that every citizen has a fundamental right to bear arms and that any restriction on this right would be subject to strict scrutiny." Additionally, it would "provide that no international treaty or law shall prohibit, limit or otherwise interfere with a citizen's fundamental right to bear arms."[1]
Sounds good, right?  I certainly think so.  However, gun rights groups in Alabama are coming out against it because...'reasons.' At best the objections to the amendment seem to be that most Alabamians concerned about gun rights do not have a clue about how bills are passed into law,how they can be challenged in court, or how the courts can judge whether or not those laws are Constitutional.  

The NRA has supported similar laws in other states, and Louisiana and more recently Missouri have adopted similar measures.  This is what the NRA had to say about Missouri's recent adoption of a similar amendment:

The passage of the amendment makes Missouri the second state to explicitly require strict scrutiny as the standard of review in all cases involving the right to keep and bear arms.  In 2012, Louisiana became the first state to do so when voters approved a referred constitutional amendment.  Strict scrutiny is the most stringent standard of review used by U.S. courts when a law burdens constitutionally protected conduct.  For a challenged law to survive strict scrutiny, the government must show: (1) the law is justified by a compelling governmental interest, (2) the law is narrowly tailored to achieve that interest, and (3) the law is the least restrictive means of achieving that interest.  
The importance of requiring strict scrutiny in cases that burden the right to arms is exemplified by current gun rights litigation in lower federal courts.  The United States Supreme Court’s decision in District of Columbia v. Heller did not clearly specify a standard of review for lower courts to use in Second Amendment cases.  This has led many lower courts to employ a weak “balancing” test, often referred to as “intermediate scrutiny,” when evaluating Second Amendment claims.  Under this lower standard, a number of gun control laws that burden ordinary, law-abiding citizens have been upheld by lower courts.  By requiring strict scrutiny in their constitutional provision, the people of Missouri have ensured that Missouri courts will give gun-control measures the most intensive review available and require the state to meet the highest possible threshold in justifying firearm regulation.

You would think Alabamians would be all for strengthening gun rights in Alabama, but there seems to be a lot of ignorant hysteria surrounding the proposed amendment.  Just a few examples:

Ben VanDortrecht There is a loophole! What is considered the "and that any restriction on this right would be subject to strict scrutiny" That leaves it open to the Legislature and their SCRUTINY!! Strict or strictest!!

Joshua Cassity I will be voting NO... this open the doors to Pandora's Box in regards to who determines the "strict scrutiny" .

Shawn Cunningham There should be NO restrictions... NO scrutiny... Period.

Jay Mize Ever heard of unintended consequences??!! Well that's exactly how this amendment will turnout!!!

Constitution Party of Alabama Under "strict scrutiny" anyone associated with the Constitution Party is a threat to the establishment and your right to gun ownership is forbidden. The HSA already list our party as a domestic patriot group.

Under "strict scrutiny" you have a pro-life bumper sticker, this could be alarm you may harm an abortion doctor. 

Under "strict scrutiny" you have come out publicly against common core, could they use this to deem you a threat to a school official or maybe choosing alienating your child from public schools is reason to deny your fundamental right.

I'm as much of a SHALL NOT BE INFRINGED proponent as the next person. I don't think there should be any restrictions on the Second Amendment and I think the Amendment makes that clear with those four words.  But centuries of courts and legislatures have disagreed with me.  The right to bear arms has been infringed and continues to be infringed.  That is why it is important to make it harder to do so in the future.  

Year by year we are peeling off the layers of the onion that is gun control, but if we don't put in force measures that make it difficult or impossible for those layers to grow back then we are just fighting a losing battle.  All of the work that organizations like the NRA and the Second Amendment Foundation have put into fighting for gun rights can be undone with the stroke of a pen in the Whitehouse or a single Supreme Court decision if we don't do everything we can to set up roadblocks in the way of antigun legislation on its way to those lofty heights.

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