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Kansas Right to Keep and Bear Arms Amendment:

The Kansas House and Senate have just put on the November 2010 ballot a proposed Kansas right to bear arms constitutional amendment that would read,

A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.

The current text, "The people have the right to bear arms for their defense and security," has been read as not securing an individual right in City of Salina v. Blaksley, 83 P. 619 (Kan. 1905), which was adhered to by City of Junction City v. Lee, 532 P.2d 1292 (Kan. 1975). This strikes me as an especially inapt conclusion for a state bill of rights provision, since the right is obviously protected against the state — how then can it belong to some state-defined collective, such as a militia or some such? But that's what the Kansas Supreme Court said. (City of Junction City v. Mevis, 601 P.2d 1145, 1151 (Kan. 1979), struck down a gun control law, challenged by an individual citizen, on the grounds that the law was "unconstitutionally overbroad"; this might involve an implicit conclusion that the right does indeed belong to individual citizens, but the decision didn't rest on the right to bear arms provision, and didn't purport to overrule Blaksley and Lee.) Now it looks like the voters will probably change that.

The votes were 39-1 in the Senate and 116-9 in the House. I would expect a vote comparable to the 74%-26% on the last such state right to bear arms amendment, in Wisconsin in 1998. The text of the amendment, by the way, closely follows a modern trend, as exemplified by New Mexico (1971), Nevada (1982), North Dakota (1984), Utah (1984, slightly different), West Virginia (1986), Delaware (1987), Nebraska (1988), and Wisconsin (1998).

As I discuss in my state constitutional right to bear arms article, an individual right to bear arms to self-defense is expressly secured (either by the text or by court interpretation of the text) by the constitutions of 40 states. The matter is not resolved in two states, Hawaii and Virginia. The provisions in two states, Kansas (not for long now) Kansas and Massachusetts, have been interpreted as securing only a collective right, whatever that might mean under a state constitution. And six state constitutions, those of California, Iowa, Maryland, Minnesota, New Jersey, and New York, don't mention a right to bear arms. I'm a bit surprised that Iowa and Minnesota gun rights supporters haven't gotten similar provisions put on the ballots in those states, since I take it that they'd surely pass there. But I assume the explanation is that people in those states just aren't that worried about state and local governments enacting gun controls, and aren't that interested in sending a message to people or institutions outside their own state.

Thanks to KSC Blog for the pointer.

UPDATE: Added a link to a copy of City of Salina; thanks to Clayton Cramer for putting it up.

Joshua (mail):
I'm surprised that Iowa and Minnesota gun rights supporters haven't gotten similar provisions put on the ballots in those states, since I take it that they'd surely pass there.

Iowa, maybe. Minnesota, no chance, at least not unless/until the red "outstate" somehow manages to secede from the Fremen-eyed (i.e. "blue within blue") Twin Cities metro.
3.26.2009 12:50am
Eugene Volokh (www):
Well, Minnesota went "shall issue" in 2005, so any law-abiding adult 21 and older can get a licensed to carry a concealed handgun. I would think that any state that does this is also likely to support a state constitutional right to bear arms. It seems to me that to many people the simple recognition of am individual right to keep and bear arms, which is culturally broadly endorsed and which according to most American courts can be subject to substantial restrictions, is an easier case than allowing concealed carry in public.
3.26.2009 1:01am
kdonovan:
I suspect such an amendment would pass pretty handily in MN if put to the voters but my understanding is that there is basically no way to do so without the legislature's action. (The Twin Cities might be opposed, but the suburbs would split at worst and and rest of the state would favor it by solid margins; there are a lot of hunters throughout MN).
Kevin
3.26.2009 1:31am
Gerriet S (mail):

But I assume the explanation is that people in those states just aren't that worried about state and local governments enacting gun controls, and aren't that interested in sending a message to people or institutions outside their own state.


I'm no expert, but I live in Minneapolis, and I would guess that this is closer to the right explanation. Hunting might not be as popular as fishing, but it's right up there. At least from my vantage, I've never felt that guns were endangered in MN.
3.26.2009 1:31am
J. Aldridge:
A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.

Wonder why "arms" isn't qualified? Arms can mean whatever the imagination can dream up.
As I discuss in my state constitutional right to bear arms article, an individual right to bear arms to self-defense is expressly secured (either by the text or by court interpretation of the text) by the constitutions of 40 states.

That is arguable, especially when one throws in the state constitutional convention debates on the purpose of the words.
3.26.2009 1:33am
Ken Arromdee:
Wouldn't the use of the words "lawful purpose" in the amendment mean that the legislature could easily pass a ban and say "well, it isn't a lawful purpose any more"?
3.26.2009 2:38am
Thoughtful (mail):
I'm rather shocked that, of the six states that do NOT have state amendments recognizing a right to bear arms, THREE of them--50%--are among the original 13 colonies. Eugene, any thoughts on that?
3.26.2009 3:44am
Dennis Nicholls (mail):
Heck Idaho's legislature is presently polishing up a resolution calling on Congress to knock it off with respect to any more Federal gun control laws.

http://www.legislature.idaho.gov/legislation/2009/HJM003.htm
3.26.2009 4:02am
Dennis Nicholls (mail):
The link format here stinks. ;)

link
3.26.2009 4:04am
Brett Bellmore:
Of course, the best time to get a right into your constitution is before it's under sustained attack at the state level. Waiting until you need it there is kind of like buying your firefighting gear after the house catches fire.

As well, you may be quite certain that, even in states without any significant drive to enact gun control, a fair proportion of the legislature favors it. They're just being quiet out of self-preservation. A push to get the right constitutionalized would be just the thing to flush them out of hiding.
3.26.2009 6:39am
fallibiist (mail):

As I discuss in my state constitutional right to bear arms article, an individual right to bear arms to self-defense is expressly secured (either by the text or by court interpretation of the text) by the constitutions of 40 states.


For all its modesty in application, doesn't Heller render this whole point moot? SCOTUS has declared that the US Constitution, the supreme law of the land, guarantees an individual right to keep and bear arms.

As I understand it, there's a "federal floor" to rights. This is to say that no state constitution can limit you to fewer rights than you have at the federal level.
3.26.2009 8:18am
Bill Twist:
It is true that the New York State Constitution doesn't include a right to bear arms, but it is in New York Civil Rights law. That right is nearly identical to the one that the Supreme Court found protects an individual right:

NY CVR Art. 2 §4. Right to keep and bear arms. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms cannot be infringed.


Of course, this has been interpreted by the courts in NY to mean that you can't disarm the militia.

One possible avenue of attack against New York States discriminatory handgun licensing might be to use this provision, compared to the Heller decision that contains similar language and that the Supreme Court has decided confers an individual right. That might remove any discretion the licensing authorities have in denying carry permits, or in requiring personal references for simple ownership, or even in denying a license if they don't like you.
3.26.2009 8:20am
wfjag:

For all its modesty in application, doesn't Heller render this whole point moot?

No. Heller was a suit against DC, not a state. The SCOTUS only had to look at the 2d Amendment as it applies to the federal government, and not whether the 2d Amendment completely or partially is among the Bill of Rights subject to "selective incorporation" against the states via the 14th Amendment.

So, at this time, it is not clear that Congress could not include gun-control provisions as a part of the requirements for receiving federal money for state operated programs. If the 2d Amendment is incorporated via the 14th Amendment, then individuals could challenge the laws states enacted to receive the federal funds. If it isn't incorporated, then no challenge could be mounted using the argument of a violation of an individual right protected by the 2d Amendment against infringement by the states. See? Lots of wiggle room there for gun control proponents.
3.26.2009 9:47am
Kharn (mail):
It would be nice if MD were to add a state-level version of the Second Amendment, but that's unlikely to get past the voters in this state. Being rumored to be a pawn of, or even friendly to, the NRA is the death of your state-wide political career in these parts.
3.26.2009 10:10am
PersonFromPorlock:
Ken Arromdee:

Wouldn't the use of the words "lawful purpose" in the amendment mean that the legislature could easily pass a ban and say "well, it isn't a lawful purpose any more"?

My concern exactly. A constitutional guarantee qualified by "for any lawful purpose" is nothing but a toy for the government.
3.26.2009 11:10am
Gordo:
Would the amendment also give the Kansans the right to sell weapons such as semi-automatic machine guns and cop-killer bullets to Mexican drug lords?
3.26.2009 11:38am
DangerMouse:
This strikes me as an especially inapt conclusion for a state bill of rights provision, since the right is obviously protected against the state — how then can it belong to some state-defined collective, such as a militia or some such? But that's what the Kansas Supreme Court said.

That's because the Kansas Supreme Court is acting as a legislature instead of a court. But thankfully, amending the Kansas Constitution is easier than the federal one. Time to bitch-slap those Judges again.
3.26.2009 11:47am
Monty:
people worried about "lawful purpose" are clearly reading it out of context. if you read the previous FOUR words, you get "and for any other lawful purpose." I would interperte that to many that in addition to the specific enumerated rights to "keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use", you also have the right to do so for any other reason you like that is not unlawful. To the extent that it doesn't violate the enumerated provisions, sure, you can make uses unlawful, but I'm not really sure what other uses there are when you include defense, hunting and recreational use...
3.26.2009 12:01pm
SeaDrive:

It would be nice if MD were to add a state-level version of the Second Amendment, ...


From my limited experience of Maryland, the eastern shore would secede if they took away the right to use shotguns against waterfowl.
3.26.2009 12:04pm
Brett Bellmore:

Would the amendment also give the Kansans the right to sell weapons such as semi-automatic machine guns and cop-killer bullets to Mexican drug lords?


To use instead of the full auto arms and military munitions they get out of the back doors of Mexican government arms depots? Why would you bother?

The claim that Mexican drug lords are being armed out of American gun stores is just another gun controller lie. The illegal traffic across the US/Mexico border goes the other way.
3.26.2009 12:23pm
ASlyJD (mail):
And of course, the easiest solution to both problems is better border security.

(And I say this as one who would like to adopt a former student of mine so she could replace her Mexican passport for an American.)
3.26.2009 12:32pm
David E. Young (mail) (www):
Thoughful:

I'm rather shocked that, of the six states that do NOT have state amendments recognizing a right to bear arms, THREE of them--50%--are among the original 13 colonies. Eugene, any thoughts on that?


A historian's view:

New York's 1777 Constitution had no separate bill of rights but did contain several protections for individual rights. These included a statement of no disenfranchisement or deprivation of any right or privilege unless by the law of the land or judgment of peers, right to counsel, freedom of religion, trial by jury, and protection against bills of attainder. [OSA, pp.764-765]

Similarly, New Jersey's 1776 Constitution had no bill of rights but did contain some individual right protections normally associated with a bill of rights. It contained protection for witnesses and counsel in criminal trials, freedom of religion, and jury trial. [OSA, p.749-750]

Maryland had an extensive declaration of rights that is still in effect as written in 1776. It contains one of the earliest predecessors of the Second Amendment's first clause:

“XXV. That a well-regulated militia is the proper and natural defence of a free government.” [OSA, p.758]

In Revolutionary era Maryland, the embodying of the people with their own arms for defense against government tyranny was referred to as formation of a well regulated militia.

The fact is that every new state Constitution from the Revolutionary era contained protections for individual rights with most having a separate declaration or bill of rights. There were a total of eight state declarations of rights among the original thirteen states and Vermont, which has one dating from 1777. Four of those indicated that the people have a right to bear arms for defense, while four others referred to a well regulated militia as the natural defense of a free form of government. Both were intended as protections for a defensively effective armed populace.

[A humorous side note: Every modern copy of Maryland's Constitution I have seen, including a 1972 copy obtained directly from the Secretary of State's office and the current copy on the state's website, has an obvious error in the date the state's Constitution was written. The 76 in 1776 is always reversed to 1767, which was well before the American Revolution, and the error appears even when the date is spelled out. How far back this transcription error goes is anyone's guess. This fact is a pretty certain indicator that almost no one today notices very important points about our history, such as extremely important years or the tremendous differences between how terms like "militia" and especially "well regulated militia" are thrown around today compared to what they actually meant back then.]
3.26.2009 12:35pm
Clayton E. Cramer (mail) (www):

I'm rather shocked that, of the six states that do NOT have state amendments recognizing a right to bear arms, THREE of them--50%--are among the original 13 colonies. Eugene, any thoughts on that?
Many of the states did not have protections of individuals rights in their state constitutions, at least in part because there was a belief that state governments, being close to the people, were less likely to abuse fundamental rights. The federal government, on the other hand, was a long ways away, and regarded with much more suspicion.
3.26.2009 2:32pm
Barnacle Bill:

people worried about "lawful purpose" are clearly reading it out of context. if you read the previous FOUR words, you get "and for any other lawful purpose." I would interperte that to many that in addition to the specific enumerated rights to "keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use", you also have the right to do so for any other reason you like that is not unlawful. To the extent that it doesn't violate the enumerated provisions, sure, you can make uses unlawful, but I'm not really sure what other uses there are when you include defense, hunting and recreational use...


Perhaps they are aware of the history of gun control in the UK, despite the 1689 English Bill of Rights reading...

"That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;"
3.26.2009 2:36pm
Kazinski:
Would the amendment also give the Kansans the right to sell weapons such as semi-automatic machine guns and cop-killer bullets to Mexican drug lords?

Heh. "semi-automatic machine guns".

I'm surprised you omitted the "cop killer bazookas".
3.26.2009 3:00pm
Kazinski:
David E. Young:

A humorous side note: Every modern copy of Maryland's Constitution I have seen, including a 1972 copy obtained directly from the Secretary of State's office and the current copy on the state's website, has an obvious error in the date the state's Constitution was written. The 76 in 1776 is always reversed to 1767...


Read it again, the Maryland Constitution was adopted by Constitutional Convention in 1867.
3.26.2009 3:05pm
Repeal 16-17 (mail):
and for any other lawful purpose.


Those words mean that in addition to the circumstances listed, the Kansas State Legislature may provide grounds upon which people may bear arms within Kansas.
3.26.2009 3:50pm
Daryl Herbert (www):
A person? Which person? Obviously the top justice of the Supreme Court of Kansas. That's the most obvious meaning.

Everyone else is on their own.
3.26.2009 4:02pm
dirc:

A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose.


I'm sure that the Kansas Supreme Court will, when it suits them, decide that the Amendment means that there is only one person in the state ("a person") who has the right to keep and bear arms. The Court will then decide who that lucky person is.
3.26.2009 4:03pm
Putting Two and Two...:
Wouldn't the change from "The people have" to "A person has" pretty much block any regulation by The People of gun ownership by felons?
3.26.2009 4:03pm
dirc:
Daryl Herbert beat me by a minute.

Great minds think alike. And, sometimes, so do the less great.
3.26.2009 4:05pm
Letalis Maximus, Esq. (mail):
Iowans just aren't that interested because they can't figure out how a state constitutional amendment on the right to keep and bear arms will in any way help with the growing of corn.
3.26.2009 5:14pm
WPZ (mail):
Let's not forget Illinois' bizarre provision for the "right" to arms:

"SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed."

When the police is named "Daley", that's a lot of subjection.
Sort of like saying, the sun rises in the east, except when it doesn't.
3.26.2009 5:20pm
bobby b (mail):
"Well, Minnesota went "shall issue" in 2005, so any law-abiding adult 21 and older can get a licensed to carry a concealed handgun. I would think that any state that does this is also likely to support a state constitutional right to bear arms."
- - - - -

MN manages to reverse itself in terms of legislative makeup regularly. Right now, it's a strongly liberal legislature, and, if the issue came up as a proposed bill, "shall issue" wouldn't pass. Further, (because the state legislators really do drive state opinion and political ideology through good use of bully-pulpit techniques), neither would a RKBA amendment.

We got "shall issue" mostly because this is a state full of lakes and woods and the sports-oriented types who make use of them, but you can't forget that this is also the Land of Wellstone, Humphrey, and Mondale.

Redistributionists with guns. That's us.
3.26.2009 6:06pm
Gordo:
Well, Brett Belmore, I guess a lot of ATF agents and other law enforcement personnel, quoted in the many newspaper articles on this subject, are also "liars."

You can go put your head back in the sand now. Or, alternatively, plug your ears and shout "la la la, I can't hear you!"
3.26.2009 7:38pm
Kirk:
Gordo,

No problem, of course I trust the ATF. How could any government agency ever be wrong about evidence of crimes?
3.26.2009 7:56pm
David E. Young (mail) (www):
Kazinski:

Read it again, the Maryland Constitution was adopted by Constitutional Convention in 1867.


I stand corrected and did indeed misread the century. So much for rushing to make comments. I'll still stick with my comment about how the term militia is often used today compared to how it was used during the Founding era, though.
3.26.2009 9:32pm
jack burton (mail) (www):

semi-automatic machine guns and cop-killer bullets


This is the type of poster who believes that unicorns are being mistreated down at the local circus
3.27.2009 6:29pm
Clayton E. Cramer (mail) (www):

This is the type of poster who believes that unicorns are being mistreated down at the local circus
It's simple enough: pass a law prohibiting restaurants from serving Unicorn hooves and Bigfoot steaks.
3.28.2009 9:45pm

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