Firearms on the Ballot in 2024

Firearms-related questions and initiatives will once again be on the ballot this coming fall.  While Oregon narrowly enacted stricter regulation of public carry and large-capacity magazines by ballot initiative in 2022,[1] the measures potentially up for voter consideration this cycle are almost entirely deregulatory.  And they may be a sign of future developments as red states consider enshrining the right to keep and bear arms in state constitutions with greater specificity.

Below are the ballot initiatives currently in the mix for consideration on November 5.  States vary in their process for placing initiatives on the ballot, and in many instances these measures will appear only if their sponsors secure the requisite number of signatures. 

Arizona

First, the Wesson Freedom Team filed a serial number application in December for a measure that would allow medical marijuana users to legally purchase and own firearms so long as they do not have past felony convictions or mental health issues.[2]  The sponsor will need to gather 255,949 valid signatures by July 3 to place that measure on the ballot. 

Second, in January, the Arizona state legislature passed a resolution containing a firearms industry anti-discrimination provision that will become law if approved by a majority of voters.  The resolution would bar public entities from entering into contracts of $100,000 or more in value with counterparties who do not include a written certification in the contract “that the company does not currently . . . [and] will not discriminate against a firearm entity or firearm trade association.”  The measure passed the state senate on a narrow party-line vote; because it was approved by legislative resolution, no signatures are required.  For more background on state financial anti-discrimination provisions, see this prior post by Dru Stevenson.

Colorado

An organization called Guns for Everyone filed a proposed initiative regarding marijuana use and public carry permitting, and the measure was approved for signature circulation in March.  The measure would make medical marijuana users whose use is lawful under state law eligible to apply for and obtain a state concealed carry permit.  Colorado’s constitution generally permits marijuana use by individuals over the age of 21, provided that the amount in question is one ounce or less and that the marijuana is not consumed “openly and publicly or in a manner that endangers others.”  The sponsoring organization must gather 124,238 valid signatures by August 5 to place the measure on the ballot.

Missouri

Missouri is one of only four states to have amended its state constitutional right to keep and bear arms provision to specify that all challenges to gun regulations are subject to strict scrutiny (Missouri voters approved that amendment by a 60-40 margin in August 2014).  A number of firearms-related initiatives have been proposed for this fall.  One would further amend the state constitution to provide that no local government can regulate the right to keep and bear arms or any ammunition or relevant accessories,[3] while also specifying that those under the age of 18 cannot possess firearms.  Other proposals similarly deal with firearms preemption—including allowing certain regulations in urban areas like Kansas City—and with concealed carry permitting.  Initiated constitutional amendment proposals require at least 171,592 valid signatures in Missouri.

Oklahoma

An interesting initiative will be on the ballot in Oklahoma, after being overwhelmingly approved by the state legislature in early March.  The measure is a comprehensive overhaul of Oklahoma’s state analogue right to keep and bear arms provision.  It would add various language to the substantive rights-granting section: deeming the right “fundamental,” specifying that it covers the right to keep and bear “handguns, rifles, shotguns, knives, nonlethal defensive weapons, and other arms in common use, as well as ammunition and the components of arms and ammunition, for self-defense, lawful hunting and recreation . . . or for any other legitimate purpose,” and specifying that it shall not be “infringed” (replacing “prohibited”). 

Oklahoma’s constitutional provision currently provides that “nothing herein contained shall prevent the Legislature from regulating the carrying of weapons”—language that is also present in a number of other state constitutions.  The phrase dates from the original conception of the provision in Oklahoma’s 1907 constitution, and it reflects the fact that Oklahoma prohibited the carrying of concealed weapons during the territorial period and through statehood.  The proposed amendment would instead say that the right does not “prevent the Legislature from enforcing or adopting narrowly tailored time, place, and manner regulations . . . to serve a compelling state interest.”  And the measure would explicitly prohibit laws “impos[ing] registration or special taxation upon the keeping of arms.” 

Oregon

Oregon voters may weigh in yet again on a gun-related initiative this fall, but this time one that seeks to deregulate firearms by allowing permitless concealed carry.  The proposal would locate this right in the state constitution, providing that the right to bear arms “includes the right to carry, without a permit, a concealed firearm.”  The measure was approved to circulate for signature in mid-2023, and the sponsors will need to gather at least 156,231 valid signatures by July 5.

Washington

A proposed initiative in Washington state “would prohibit the government from restricting purchase or possession of guns or arms for self-defense by law-abiding citizens, prohibit registries of law-abiding citizens, unless federally required, and repeal pending firearms-related legislation.”  The measure, a broad mix of changes to portions of state law dealing with self-defense, gun acquisition and possession, and consumer protection law, will need to obtain 324,516 valid signatures by July 5 to be placed on the ballot.

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The Arizona financial anti-discrimination proposal and the Oklahoma state constitutional amendment are the only two measures currently guaranteed to appear on ballots this fall, as they were both approved by state legislatures.  I’d like to focus briefly on the Oklahoma proposal here.  The measure seeks to lock in a broad definition of arms by listing rifles, knives, and nonlethal weapons explicitly, and it is also somewhat unique in specifically protecting a right to keep and bear such arms for “recreation[al]” and other “legitimate” purposes like hunting, in addition to self-defense.  The section regarding permissible legislative action draws from the Supreme Court’s First Amendment jurisprudence[4] and the language of strict scrutiny: specifying that any laws may restrict only the time, place, and manner of keeping or bearing and must be narrowly tailored to a compelling state interest. 

The amendment will not have much practical impact in a state like Oklahoma, which is unlikely to enact new forms of gun regulation and where firearms preemption ensures that no local jurisdiction will attempt to do so.  But efforts to amend state constitutional provisions to specify stricter limits on legislative action present an interesting contrast to Bruen’s historical focus.  As Jud Campbell observes of early state right to keep and bear arms decisions:

The enforcement of these rights, many Americans thought, was coterminous with ensuring limits on the police powers. And assessing those limits required a host of embedded judgments about things like the dangers of private arms-bearing, the role of citizens in law enforcement, and the potential perils of disarmament.

State constitutions, like Oklahoma’s, often included explicit recognition of this concept by constitutionalizing the legislature’s power to regulate the right in various ways (for example, by restricting the manner in which weapons were carried). 

Removing such language, as Oklahoma proposes to do, might have the effect of making challenges under state Second Amendment analogues look a lot different than federal Second Amendment cases.  Almost by definition, the act of amending the state constitution changes the historical framing in any subsequent judicial challenge.  For example, in June 2023, a Virginia state court judge held that “the operable period of history for purposes of the analysis that is required in this case should be 1971, which is when the Virginia Legislature chose to adopt the right to bear arms in Article 1 Section 13.” 

Oklahoma’s amendment would also seemingly wipe away any prior history underlying the state right-to-arms provision in favor of the legislature’s modern judgment of what regulations are permissible.  And in this regard Oklahoma’s ballot initiative would go farther than even those four states that have adopted strict scrutiny amendments in recent years: by saying that only time, place, and manner restrictions that satisfy strict scrutiny are permitted (and not, presumably, an outright possession ban for certain categories of people even if the law might otherwise meet strict scrutiny).  While federal Second Amendment jurisprudence increasingly privileges history, state constitutional law in certain states is moving in the opposite direction—excising a history that includes certain forms of regulation in favor of a stricter modern balancing test.