HJR1009

Article 2, Section 26 of the Oklahoma Constitution (our state version of the Second Amendment) needs to be re-written.  Thre are two reasons we believe this is necessary.  First, the wording of the section itself, which was adopted at statehood, is problematic.  It currently states:
 
The right of the 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.
 
The first part, what is before the semicolon, is worded well enough.  It is what comes after the semicolon that creates the problem.  As a result of that phrase, the state courts have ruled that he Legislature can indeed regulate the carrying of weapons on private property.  It was a crime in Oklahoma to carry an unconcealed handgun on your own property (outside of your home) for the purposes of self-defense as late as 2014.  OK2A successfully urged the Legislature to include language in the Open Carry bill to remove this infringement.
 
In addition to the wording of Article 2, Section 26, three court rulings have effectively nullified any protection provided by our state's constitution.
 
  • In 1908, the Oklahoma Supreme Court ruled that there is no individual right contained in our state constitution.  The court held that our constitution only guarantees a militia right and that since handguns are not effective militia weapons, there is no protection provided under the Oklahoma Constitution for the ownership or carrying of handguns.
  • In 1929, the Oklahoma Court of Criminal Appeals upheld the conviction of a Ellis County man arrested and convicted for carrying an unconcealed handgun on his own front yard. Sheriff's deputies had ordered the man from his house while executing a search warrant.  After finding nothing related to the warrant, they decided to arrest the man for carrying an unconcealed Colt revolver while standing in his yard.  In rendering their decision the court held that because Article 2, Section 26 places no restrictions on the Legislature's ability to regulate the carrying of weapons, they could indeed outlaw the carrying of weapons on one's private property and that the Legislature could outlaw the ownership and possession of a pistol if they so desired.
  • In 1998, the Oklahoma Supreme Court fuled in a case filed against the Oklahoma State Bureau of Investigations for denying a concealed handgun license to a man who had merely been charged with a crime.  While the man won the case, the Court held that, in essense, there is no protection for the right to keep and bear arms under the Oklahoma Constitution.
 
In spite of the fact that each of these cases simply built on already bad case law, you will never get the state courts to take a new look at old language.  Unfortunately,  judges seem to care more about what other judges say than what the law or even the constitution says.  Therefore, we contend that the only way to remedy this situation is to rewrite Article 2, Section 26 of the Oklahoma Constitution.  Our proposal will accomplish several goals:
 
  1. The very specific language of HJR1009 clearly acknowledges and protects all three aspects of the right to keep and bear arms: for self-defense, recreation, the need for the state to form a militia.
  2. By requiring the courts to employ "strict scrutiny" in any cases involving the right to keep and bear arms, the judges are restricted in their ability to read anything into or out of the Constitution.  In other words, judges would be required to err on the side of more freedom and less regulation.
  3. The state would be restrained from ever levying a tax against weapons, ammunition, or the components of weapons or ammunition and from ever requiring any registration of firearms.
 
Our proposed language is as follows:
 
Article 2, Section 26.  Keeping and bearing of arms - Fundamental status - Specific regulations
 
A.  The fundamental right of each individual citizen to keep and to bear arms, including handguns, rifles, shotguns, knives, nonlethal defensive weapons, an 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 regulation of this right shall be subject to strict scrutiny.
 
B.  This section shall not prevent the Legislature from prohibiting the possession of arms by convicted felons, those adjudicated as mentally incompetent, or those who have been involuntarily committed in any mental institution.
 
C.  No law shall impose registration, or special taxation upon the keeping of arms, including the acquisition, ownership, possession, or transfer of arms, ammunition, or the components of arms or ammunition.