Greater Oklahoma City Chamber - HJR 1009 "Strict Scrutiny" constitution change shifts power from citizens and gives it to courts

HJR 1009 "Strict Scrutiny" constitution change shifts power from citizens and gives it to courts

Potential loss of income-producing events, rights of business owners, pro sports teams at stake with NO NEW benefit to citizens

Tuesday, May 3, 2016 9:00 am

MEMBER ALERT:

Business owners and managers in Oklahoma need to call members of a conference committee considering final language for HJR1009. This bill could severely limit the rights of a business owner to keep guns out of the workplace. It could also lead to guns at public and private events and even guns on campus. The bill requires any limitation on carrying a gun to pass the “strict scrutiny” constitutional review by the courts – effectively shifting control over firearms policy from the legislature. A review of court application of strict scrutiny standard shows numerous public safety statutes invalidated, and cases decided to benefit criminal defendants and non-citizens.

Read a detailed opinion on Strict Scrutiny review here.

Oklahoma’s best legal minds believe Oklahoma laws that allow sports arenas (including Thunder games), casinos, businesses, churches and school campuses to disallow possession of handguns on the premises would be struck down. They also believe a provision preventing illegal aliens from being licensed as an armed security guard or private investigator would be struck down. These are just examples of the public safety acts passed by the Legislature concerning firearms that could be declared unconstitutional by the courts with this provision.

The Chamber is joined in opposition to this legislation by a broad coalition that includes law enforcement, universities, hospitals and the state’s game wardens. See a full list here.

The Chamber engaged attorney Robert McCampbell to provide a review of the possible effects of HJR 1009 should it become law. Among other possible negative effects, McCampbell notes the following:

H.J.R. 1009 would:

1. Shift control over firearms policy away from the legislature and towards courts;
2. Provide additional tools for violent criminal defendants to challenge their arrests and convictions;
3. Infringe on the property rights of business owners to control their own premises;
4. Make it much more difficult to prevent firearms from being brought into a sports arena;
5. Make it much more difficult to prevent firearms from being brought into a casino;
6. Allow defendants with prior firearms convictions to possess firearms if those prior convictions are classified as a misdemeanor; and
7. Make it much more difficult to prevent illegal aliens from possessing firearms.

Who would benefit from the application of a "strict scrutiny" standard?

  • Criminal Defendants. When courts apply strict scrutiny, criminal defendants routinely use that tool to attack the firearms statutes under which they are charged. E.g. Taylor, supra; State v. Eberhardt, 2013-KA-2306, Supreme Court of Louisiana, (July 1, 2014); United Sates v. Chester, 628 F.3d 673 (4th Cir. 2010); United States v. Reese, 627 F.3d 792 (10th Cir. 2010); State v. Draughter, 130 So.3d 855 (La. 2013); State v. J.M. 2013-CK-1717, 2014 WL 340999 (La. 1/28/2014).
  • Non-Citizens. Even without strict scrutiny, courts have been vigilant to protect the ability of legal aliens to possess firearms. E.g. Fotoudis v. City of Honolulu, 54 F.Supp.3d 1136 (D. Haw. 2014); Fletcher v. Haas, 851 F.Supp.2d 287, 303 (D. Mass. 2012) ("the statute here fails to distinguish between dangerous non-citizens and those non-citizens who would pose no particular threat if allowed to possess handguns)." "The possibility that some resident aliens are unsuited to possess a handgun does not justify a wholesale ban."; Say v. Adams, 2008 WL 718163 (W.D. Ky. 2008) ("A blanket prohibition discriminating against aliens is not precisely drawn to achieve the goal of facilitating firearms purchases when there exists a non-discriminatory way to achieve the same goals.")

What would the effect be of HJR 1009 on Oklahoma law?

1. Sports Arenas and Casinos. The problem posed by strict scrutiny review is illustrated in SB 1057 which was signed by the Governor on April 7, 2016. Among other things it provides that possession of handguns is not permitted in a sports arena or place where gambling is authorized, unless permitted by the owner. SB 1057 (2016), amending 21 O.S. § 1277(A)(4) and (5). That provision could be unconstitutional under strict scrutiny review. If a person can be allowed to carry in a handgun with permission of the owner, then banning handguns could be found not to serve a compelling state interest. Also, if some sports arenas can have handguns, to ban handguns in other sports arenas could appear to be not narrowly drawn.
2. Businesses and Churches. The Business Owner’s Rights provided in 21 O.S. § 1290.22 could also be found unconstitutional under strict scrutiny. That section allows business owners and churches to ban handguns on their property. However, banning handguns could be found not to serve a compelling state interest if handguns are permitted in some businesses and churches. Similarly because that section bans handguns in some but not all businesses and churches, it could appear not to be narrowly drawn.
3. Illegal Aliens. 59 O.S. § 1750.5(H)(1) prohibits an illegal alien from being licensed as an Armed Security Guard or Armed Private Investigator. This provision could be blocked under strict scrutiny pursuant to H.J.R. 1009. Such a law could be found not to survive strict scrutiny because it is not always the case that an illegal alien with a weapon is more dangerous than a U.S. Citizen or legal alien with a weapon. Further, the law makes no distinction between dangerous illegal aliens and non-dangerous illegal aliens.
4. Schools and Colleges. Under current law, possession of a firearm is not allowed in schools or college campuses. 21 O.S. §§ 1277, § 1277(E), 1280.1. Those laws would also be called into question by H.J.R. 1009.
5. Misdemeanor Offenders. Under current law, offenders convicted of misdemeanor drug offenses, 21 O.S. § 1290.10(5)(e), § 1290.11(A)(10)(e), or DUI offenses § 1290.11(A)(7) are not eligible for a concealed carry license. Those statutes would not survive strict scrutiny review. Gowder, supra.
6. Removing Serial Numbers. It is currently against the law to remove or obliterate the serial number of a firearm. 21 O.S. § 1550(B). This statute would be subject to challenge if strict scrutiny is adopted.
7. Buses. It is against the law to board a bus with a concealed weapon. 21 O.S. § 1903(D). This statute would be subject to challenge if strict scrutiny is adopted.
These are just examples. The point is that under strict scrutiny review, many public safety acts passed by the Legislature concerning firearms which are currently on the books could become unconstitutional. Further, the Legislature’s authority with respect to passing legislation in the future would be materially restricted in favor of decisions by courts.

Conclusion:

If H.J.R. 1009 was enacted, it would make a significant change to the Oklahoma Constitution and Oklahoma law. It would significantly restrict the Legislature’s policy making authority concerning firearms.

Read the entire review by clicking here.

What can I do? 

Call these members of the legislature TODAY and urge them to vote NO in committee on HJR1099. Voting NO will not limit any Oklahoman’s right to own a firearm.

Senator Clark Jolley - SD 41 - 405-521-5622

Senator AJ Griffin - SD 20 - 405-521-5628

Senator Ron Justice - SD 23 - 405-521-5537

Rep. Gary Banz (R-Midwest City), 405-557-7395

Rep. Jason Nelson (R-OKC), 405-557-7335

Rep. Chris Kannady (R-OKC), 405-557-7337

Rep. Chad Caldwell (R-Enid), 405-557-7317