This weekend the United States is celebrating yet another anniversary of the Declaration of Independence, which rooted our nation in the principle that governments derive their just powers “from the consent of the governed,” and that people had “unalienable rights” not only to life, liberty, and the pursuit of happiness, but also to exercise control over their government. Missourians should temper their celebrations, however, because according to a majority of the judges sitting on the Missouri Supreme Court those concepts are, quite literally, meaningless.
Last year, more than sixty percent of Missouri voters approved an amendment to the Missouri Constitution that was designed strengthen the right to bear arms in this state. The most important changes the amendment made were declaring the right to be “unalienable,” and requiring courts to apply “strict scrutiny” when assessing any governmental restriction on this right. “Strict scrutiny” is a legal term of art meaning that a law limiting a fundamental right is presumed to be invalid and courts will only uphold such a law if it restricts no more freedom than is necessary to serve a compelling governmental interest. By adopting this amendment, Missourians were exercising their essential right to alter their constitution and form of government whenever they deem it necessary to their safety and happiness; their action should have ensured that Missouri courts would grant the right to bear arms at least as much protection as courts afford any other constitutional right.
But on June 30, the Missouri Supreme Court cast serious doubt on whether the people can put any right beyond the reach of government restriction, concluding that the amendment did not actually change anything in regard to the right to bear arms. Although no other right in the Missouri Constitution is described as “unalienable,” five of the judges asserted that applying that term to the right to bear arms imposes no additional obligation on courts to protect that right from interference. And although the concept of “strict scrutiny” has been firmly established for decades, the judges suggested that a weaker version of that standard should apply to the right to bear arms and they offered a list of specified restrictions on that right that the Court would likely approve. One judge, Laura Denvir Stith, went so far as to assert that the people of Missouri are utterly powerless to amend the constitution in a way that might interfere with what she called “the common law right of judges to interpret the constitution,” a position that would preclude any effort by the people to establish extraordinary constitutional safeguards for freedoms they hold especially dear.
The opinions expressed by these five judges assault the very foundations of the American constitutional system as articulated in the Declaration of Independence, the U.S. Constitution, and the Missouri Constitution. In this nation and state, the people are supposed to decide for themselves the limits of governmental power. The people of Missouri have declared their right to bear arms to be “unalienable” and have demanded that their courts prevent governmental interference with that right. If the Missouri Supreme Court is unwilling to give meaning to this constitutional change, perhaps the people should start planning to make constitutional changes to the court itself.