It’s a debate raging right now in several prominent federal lawsuits: is “strict scrutiny” the standard by which a law will be evaluated to determine whether it infringes upon our Second Amendment freedoms under the United States Constitution?
Enter the state of Missouri, which just amended its state Constitution to read “That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restrictions on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement.”
It’s not just the clarity of language in this constitutional amendment that is user-friendly; it’s the express adoption of “strict scrutiny” as a judicial standard that will help to protect firearms liberties in Missouri.
“Strict scrutiny” is a standard of proof that must be met by a governmental body when it takes action that is argued to have infringed an individual’s civil liberties. You are probably most familiar with another standard of proof, “beyond a reasonable doubt,” which applies to the government in criminal cases. A lesser standard than “strict scrutiny” is “intermediate scrutiny” and the lowest tier is “rational basis.”
When a government has to satisfy a burden of “strict scrutiny,” it must demonstrate that a government restriction is justified by a “compelling” purpose and that the means selected to achieve that purpose has been “narrowly tailored.” If the court is not persuaded that government intervention is essential, the legislative action fails. Likewise, if there are alternative remedies that would be less restrictive that a government could select to try to achieve the aims, then the legislation fails.
Ultimately, a constitutional amendment like the one in Missouri is a great help to manufacturers and consumers alike because it provides not only clarity of the current status of law, but also clarity of process for the resolution of future state and local conflicts of law. A mandated judicial standard that is the highest of three options allows manufacturers to operate in a state and local environment which will make it difficult to sustain any enacted legislation that seeks more than to fine tune firearms and ammunition ownership. It also increases the likelihood that lawyers filing constitutional litigation could win an injunction suspending enforcement of legislation pending judicial review.
Given the political dynamics since at least early 2013 for manufacturers of firearms and ammunition, it was a breath of fresh air to learn the results of the ballot referendum in Missouri. It certainly lives up to its state motto “Salus populi supreme lex esto” – the welfare of the people shall be the supreme law.