Medical Marijuana and Patient’s Gun Rights: A Florida Dilemma?

 

In a television interview this week Florida House of Representatives member  Cord Byrd explained Florida medical marijuana users will be in violation of federal firearms law.

Speaking to Channel 9 via Facetime, Byrd explained that possessing medical marijuana while having or buying a gun can carry a penalty of up to 10 years in prison.

“I won’t say it will happen, but I will advise someone who calls me that it certainly is a possibility,” he said. The prohibition is clearly explained on forms required when a person is purchasing a firearm, Byrd said.

Federal law prohibits any “unlawful user” of a controlled substance to purchase a firearm, and it doesn’t matter if Florida has legalized medical marijuana, he said.

Nowhere in the state ratification debates was the medical needs of the people weighed against their right to keep and bear arms.

This apparent dilemma provides a “teachable moment” for voters and legislators.

Madison wrote in the Virginia Resolutions, the clear duty of the legislature against federal usurpations: “That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

There is no authority in the Constitution for the federal government to legislate the possession or use of any plant. There is also no authority for the federal government to infringe upon the right to keep and bear arms. It is expressly forbidden by the Second Amendment, the second article in the first eight prohibitions written against the federal government, and the federal government only.

In 2016, the people of Florida overwhelmingly rejected the federal prohibition on medical marijuana. They did this by ballot initiative since the legislature lacked the fortitude to do this by legislation. We the people of Florida, in effect, nullified the federal prohibition, as is our right. To protect our decision, it is the responsibility of our state legislature to interpose on our behalf; to arrest the progress of the evil-the evil being any federal action to deny a medical marijuana patient in Florida their right to keep and bear arms.

To rectify the very real danger expressed by the honorable Mr. Byrd, the legislature needs to take the appropriate steps.

First, deny all federal agencies access to the list of medical marijuana patients in Florida. This confidentiality must be maintained no matter what financial threats the federals may make to obtain these names.

Next, the legislature must enact measures which prohibit any Florida law enforcement officer, any state agent, any court or state employee from assisting federal officers with the arrest and prosecution of any Florida medical marijuana patient. This includes any intelligence gathering, warrants, and use of jails for confinement. Any Florida LEO, state agent, judge or state employee who would violate this law would be subject to penalties from suspension without pay to termination.

There is nothing illegal about such noncooperation. Sure, sheriffs and police chiefs will lobby hard against it, but liberty and not the legislature’s love affair with uniformed services and fear of their lobbyists must carry the day.

The Second Amendment prohibits the federals from infringing on the right to keep and bear arms. The Constitution does not authorize the federals to legislate the use or possession of plants or drugs. This is a state power never ceded to the central government.

The legislation of firearms in Florida is contained in our state constitution in our Declaration of Rights, Article One, Section 8. Rightly or wrongly, we have placed all firearms legislation, including the manner and places of bearing arms in the hands of the state legislature.

Unless the state legislature is willing to tell 71% of the voters they plan on denying medical marijuana patients their right to keep and bear arms, they should not waste too much time in moving to protect those rights from the federals.

We didn’t vote away our right to keep and bear arms when we rejected federal prohibition. Rep. Byrd is correct; it isn’t fair to force people to navigate the complex divide between federal and state law.

So our message to Rep. Byrd and his House colleagues is this: Simplify the complex and don’t force Florida’s medical marijuana patients to navigate this divide. Interpose now with the proper legislation. Protect the liberty of Floridians who are both gun owners and medical marijuana patients now or will become both in the future.

The day is fast approaching where sides must be taken, lines must be drawn, liberty supported or supplanted.  Where stands our state legislature?

 

No One Needs a Fifty Round Swimming Pool to Hunt In Florida

“Florida leads the country in drowning deaths of children ages 1-4 years. Annually in Florida, enough children to fill three to four preschool classrooms drown before their fifth birthday.

In 2013, Florida had the highest unintentional drowning rate in the nation for children ages 1–4 years with a drowning rate of 7.54 per 100,000 population. Florida had the second highest drowning rate in the nation for children ages 1–14 years with a drowning rate of 2.54 per 100,000 population. Oklahoma was first for this age group with a rate of 2.69 p

er 100,000 population, and Mississippi third for this age group with a rate of 1.91 per 100,000 population.” -Florida Department of Health

In a state with world famous beaches, lakes, and ponds and rivers abounding in every county, do we really need to allow people to have swimming pools on their own property? Clearly, it’s a dangerous undertaking and one that should be more closely regulated by the authorities.

Missing in action on this issue are those same people who tell us we don’t need fifty round magazines or semi -automatic rifles to hunt deer; all handguns are best left in the hands of the police and should otherwise be banned; and responsible gun owners with nothing to hide should not fear registration. They aren’t out to remove our God  given rights, they only want to add a touch of common sense to them.

Not a word from them advocating the banning of swimming pools in Florida.

In the 2018 Florida legislative session, HB 219 has been filed. This bill “Prohibits sale, transfers, or possession of assault weapon or large-capacity ammunition magazines.” Not one sponsor or co- sponsor of this bill in the House or its companion bill in the has ever submitted a bill banning homeowner swimming pools. Why is that?

Because it would be branded as ridiculous. But what about the children you ask. Parental responsibility and private property they would answer, knowing full well the pushback from realtors, developers and the swimming pool industry would bury them in ridicule and opponent campaign donations. Demonize an inanimate object? Why, swimming pools are part of the Florida culture!

Parental responsibility for safety, private property rights, the ridiculousness of demonizing inanimate objects, part of the Florida culture. Good reasons for anti-liberty communists in our state to be as silent about firearms as they are about the danger of swimming pools. As far as we know now, this bill has drowned in silence. Good. Do not resuscitate

The Florida Second Amendment Preservation Act: Who Will Walk the Walk of Shall Not Be Infringed?

The contenders for the 2018 Florida governorship, Florida House and Florida Senate elections are beginning to line up. Not surprisingly on the Republican side, every candidate is jockeying to be the “Second Amendment champion.”
They will yodel about open carry, campus carry, airport carry and no permit required carry (some call this “constitutional carry”) and how they believe in “YOUR SECOND AMENDMENT RIGHTS!” However, none of these carry questions are Second Amendment issues. They are state issues.
Wisely or unwisely, we the people of the state of Florida have given to the legislature the power to decide the manner of bearing arms and the places where those arms may be carried. If this is new to you, you will find this in our state constitution’s Declaration of Rights, Article 1 Section 8, Right to Keep and Bear Arms. The only way to change this is to  amend our state constitution.
There is a way for any candidate or sitting state legislator to truly be a “Second Amendment Champion.” As the Second Amendment is a prohibition on the federal government and forbids it to “infringe” (weaken,limit,destroy) a person’s right to keep and bear arms; all federal firearms laws are in fact unlawful and would be viewed by the framers and ratifiers as no law at all. A true Second Amendment champion would work to blunt the force of these laws in Florida.
But are there any real Second Amendment champions out there? Talk is cheap. Who in fact will walk the walk of firearms freedom?  It’s actually very easy to find out.
At the end of this introduction you will find a version of the Florida Second Amendment Preservation Act. A true Second Amendment champion, a person who understands the reason for the inclusion of the amendment in the Bill of Rights, and the relationship of the Bill of Rights to the states will not hesitate to sponsor this bill, co-sponsor it,or at the very least, have an honest discussion with you about it. The last time this bill was filed in the House was 2014. It had one sponsor and ten co sponsors. No senator would touch it due to NRA pressure. We are willing to bet that YOU believe all federal firearms laws are unlawful and don’t care an old musket ball for what anyone else thinks.
DON’T ACCEPT EXCUSES!  ONE EITHER BELIEVES THE SECOND SAYS WHAT IT MEANS AND MEANS WHAT IT SAYS OR ONE DOES NOT.
We encourage you to share this with a candidate  to whom you are considering giving support. Share it with your sitting state representative and state senator. Message us or post their responses. Be sure to include their name, party affiliation and senate or house district number.
It’s time to shake out the talkers from the walkers and yodelers.
Not sure who represents you in Tallahassee?
Find your state senator here: http://www.flsenate.gov/Senators/Find

 ____________________________________________________________________________________

A bill to be entitled
An act relating to federal regulation of firearms; providing a short title; providing legislative
findings; creating s. 790.—, F.S.; prohibiting specified actions to enforce certain federal regulations of firearms and ammunition; providing for loss of position or office of an agent or employee of the state who violates the prohibition; providing a directive to the Division of Law Revision and information; providing
an effective date.
Be It Enacted by the Legislature of the State of Florida:
Section 1.
This act may be cited as the “Second Amendment  Preservation Act.”
Section 2.
This act shall have no effect on the right to keep and bear arms pursuant to
the Florida Constitution and  defined by state law.
Section 3.
The Legislature finds that the Second Amendment to the United States Constitution reads as follows: “A well  regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not
be infringed.” The Legislature finds the enforcement of firearms
and ammunition regulations remains a power reserved to the State
of Florida and the people therein.
Section 4. Section 790—, Florida Statutes is created to read:
790. Federal infringement of Second Amendment rights prohibited.
(1) Notwithstanding any provision of law, the State of
Florida and its agencies, political subdivisions, constitutional
officers, officials of its agencies and subdivisions, and their
successors, or an employee of such an agency acting in his or
her official capacity, or a corporation or person providing
services to or on behalf of this state shall not, concerning any
act, law, order, rule, or regulation, whether past, present, or
future, of the Federal Government relating to a personal firearm
or firearm accessory within this state that applies to a
personal firearm or firearm accessory based on the design,
features, or characteristics of the firearm or accessory:
(a) Enforce any such federal act, law, order, rule, or  regulation.
(b) Provide material support to, participate with, or assist, in any form, any federal agency or employee engaged in the enforcement of any such federal act, law, order, rule, or regulation or any investigation pursuant to the enforcement of any such federal act, law, order, rule, or regulation.
(c) Use any state assets, state funds, or funds allocated
by the state to local entities on or after the effective date of this act, in whole
or in part, to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the Federal Government in the enforcement of any such federal act, law, order, rule, or regulation or any
investigation pursuant to the enforcement of any such federal
act, law, order, rule, or regulation as these federal laws shall
not be recognized by this state, are specifically rejected by
this state, and shall be of no effect in this state.
(2) An agent or employee of this state who
knowingly violates subsection (1) shall be deemed to have resigned a
commission from this state that he or she may possess, and his
or her position or office shall be deemed vacant.
Section 5.
The Division of Law Revision and Information is
directed to replace the phrase “the effective date of this act”
wherever it occurs in this act with the date this act takes effect.
Section 6. This act shall take effect
upon becoming a law

There are no FLORIDA POLITICIANS supporting “Your Second Amendment Rights”

Now that we have your attention, please continue.

This past legislative season saw several gun bills described as Second Amendment bills. Now, with the campaigns for Governor and Agriculture Commissioner taking shape, the “defenders” of the Second Amendment are heralding their bona fides.  Adam Putnam in particular has featured his “pro Second Amendment” stance in his social media ads. Putnam  touts his tenure as Ag Commissioner and the increase in CCW permits issued during this time. As for CCW’s, they are personal choices and not a function of who is Ag Commissioner. It just so happens the legislature has assigned this function to the Department of Agriculture. We looked for bills he introduced as a federal congressman that would roll back federal infringements on the Second Amendment and found none. But enough about Mr. Putnam.

Let’s deal with those gun bills in the recent legislative session. The “pro” gun bills if you will, had nothing to do with the Second Amendment. They were expansions of Article 1 Section 8 of the Florida Declaration of Rights in our state constitution. That document empowers the legislature to address the manner in which the bearing of arms  may be implemented. Open carry is an A1 S8 of the Florida constitution, Declaration of Rights issue, not a 2A issue. Campus carry, same thing. It is the Florida legislature, not the federal government prohibiting the open carry of firearms and the carrying of firearms on campus. Unfortunately, the term “Second Amendment” has become a generic marketing ploy for all things pro firearms. Along the way the meaning, purpose and prohibitions of the amendment have gotten watered down and forgotten. The truth is there’s more marketing going on here than actual substance.

The Second Amendment as written is a prohibition on the federal government. In creating the Bill of Rights, the framers, life and death familiar with the threat of standing armies, wanted to make sure the new government they were creating could not infringe upon the rights of citizens to be armed. (This right was recognized in the sovereign states prior to the creation of  the voluntary union.) Armed you see, because they not only believed in the natural right of self defense, but they also knew that local militias, comprised of armed citizens would be the only bulwark against an out of control central government with a standing army. As Rob Natelson explains in “The Original Constitution, What it Said and Meant” (page 175): ” The activity prohibited was to “infringe.” The meaning of infringe in eighteenth century dictionaries was to violate a law or contract. A few sources gave a second meaning of “destroy,” which would imply that the amendment interdicted only legislation that completely destroyed the right. However, most dictionaries defined “infringe” to include intrusions less than total destruction. This suggests that it breached the Second Amendment to reduce in any way the right to keep and bear arms.” 

With that in mind, it is easy to see the federal government has been infringing on the right to keep and bear arms since it determined that sawed off shotguns are illegal and automatic fire weapons require a federal permit. Going back to the  National Firearms Act of 1934, the central government has continuously been re-defining the words the Second Amendment. The federals reduced this unlimited right to a privilege and they dole out this privilege in doses with which they feel the people can be trusted. Even Justice Antonin Scalia, considered by gun people to be a hero said this regarding the Second Amendment-It will have to be decided in future cases what limitations upon the right to bear arms are permissible,” he added. “Some undoubtedly are.”  

So, back to our Florida defenders of the Second Amendment. Anyone currently holding office or running for office in Florida who accepts federal infringements is not a defender or protector of ” Second Amendment Rights.” All federal firearms “laws” infringing on, diluting or destroying RKBA are in fact no law at all. A Federal Firearms License to own an automatic weapon? Infringement.

The only acceptable stance for a pro Second Amendment Florida politician  is to first acknowledge and denounce all current infringements, and to sponsor and/or support legislation in our state that frustrates current federal infringements on the right to keep and bear arms.  This includes the National Firearms Act, National Instant Criminal Background Search (NICS) the FFL requirement and any BATFE “agency rule” that violates the Constitution’s requirement that Congress shall make all law; and that law must be pursuant to the  Constitution. If they accept these infringements “as the law of the land” they are being disingenuous.

The wording to just such a bill was introduced into the Florida House in 2013 as the Florida Second Amendment Preservation Act. For various reasons that won’t be visited here, it was withdrawn by the House sponsor and his ten co sponsors. It never did obtain a senate sponsor.

So let’s get back to those politician supporters of our “Second Amendment Rights.” Maybe they should change their position to “I support a Right to Keep and Bear Arms.” From this statement they can go on to explain to to what degree they believe your freedom to keep and bear arms should be allowed. Better yet, they could talk about our state constitution’s Article 1 Section 8 and what they intend to do to remove those limitations.

 

Florida’s Declaration of Rights

Regardless of what they may or may not know about the first ten amendments to the US Constitution, many Americans have at least heard of the Bill of Rights. Lawsuits brought against state and local governments by the ACLU for “First Amendment violations,” or by the NRA for “Second Amendment rights” are fairly regular news items and have served to familiarize people with such terms as “separation of church and state,” and “the right to keep and bear arms.” The former of course appears nowhere in the Constitution. These suits  also reinforce the myth that all federal law unquestioningly supersedes state law.

Due to the expansion of the federal government, particularly their use of government by judiciary; even less people are familiar with their own state constitutions and their state Declaration of Rights. State constitutions and state legislation are regularly vetoed by federal judges to the point of rendering them impotent. Discussion of these federal usurpations will have to wait for another day. Today we wish to call attention to our Florida constitution and the Declaration of Rights therein.

As with the federal Bill of Rights, our state Declaration of Rights enshrines the basic rights of Floridians. Unfortunately, it also imposes limitations on these.  To illustrate this, let’s look at a  popular topic-the bearing of arms.

In the 2017 legislative session just ended, Senator Greg Steube proposed several bills expanding the bearing of arms in airports, on campus and providing for open carry. These were marketed by both Senator Steube, the NRA and other organizations as “Second Amendment” bills. In reality, these bills had nothing to do with the Second Amendment beyond using the 2A as a catchphrase or generic marketing term. It is not the federal government prohibiting open carry in Florida, it is the state government. This is found in our Declaration of Rights, Section 8- “SECTION 8. Right to bear arms.—
(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.”

Our state constitution gives the legislature the authority to legislate the manner of bearing arms. Senator Steube’s bills fell under this section of our Declaration of Rights; allowing  the legislature to expand  the bearing of arms in both method and location. Of course, marketing your bill by saying “I support the expansion of Article One, Section 8 of our state Declaration of Rights” doesn’t resonate as strongly as saying “I  support the Second Amendment,” and how many people would know what A1 S8 of the state constitution is anyway?

The distinction is important and would have made perfect sense to the framers and ratifiers of our Constitution and the Bill of Rights. Federalism matters! But this too we will leave for another day. As far as the RKBA in Florida is concerned, the legislature should allow open carry, remove the need for a carry permit, remove the requirement of having an FFL to possess automatic weapons and  prohibit any state,  local officer or judge from assisting the federals in the enforcement of any and all federal gun “laws.” This would include intelligence gathering, the issuing of warrants, participation in raids and arrests, and the use of our jails.  For now, we are a long, long way from there.

Another area of concern in our Declaration of Rights is Article One SECTION 12. “Searches and seizures.—The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”

The last two sentences leave our state search and seizure protection up to federal interpretation. This is dangerous. The federal government has abused the 4th Amendment to the point of making it irrelevant and their courts have been complicit in this. This section is not only lazy law, it lessens our protection. By decreeing our “conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court” we have also given a nod to the Incorporation Doctrine, a legal fallacy that uses the 14th Amendment to incorporate the federal Bill of Rights against the states. Until we understand how this has destroyed state sovereignty and the original understanding of how federalism was to function, we will have a difficult time pushing back against this “settled law” pixie dust. This discussion too however, will have to wait for another day.

For now, becoming acquainted with our home  document must be part of our knowledge in the reclamation and defense of liberty.

 

Article One

DECLARATION OF RIGHTS
SECTION 1. Political power.
SECTION 2. Basic rights.
SECTION 3. Religious freedom.
SECTION 4. Freedom of speech and press.
SECTION 5. Right to assemble.
SECTION 6. Right to work.
SECTION 7. Military power.
SECTION 8. Right to bear arms.
SECTION 9. Due process.
SECTION 10. Prohibited laws.
SECTION 11. Imprisonment for debt.
SECTION 12. Searches and seizures.
SECTION 13. Habeas corpus.
SECTION 14. Pretrial release and detention.
SECTION 15. Prosecution for crime; offenses committed by children.
SECTION 16. Rights of accused and of victims.
SECTION 17. Excessive punishments.
SECTION 18. Administrative penalties.
SECTION 19. Costs.
SECTION 20. Treason.
SECTION 21. Access to courts.
SECTION 22. Trial by jury.
SECTION 23. Right of privacy.
SECTION 24. Access to public records and meetings.
SECTION 25. Taxpayers’ Bill of Rights.
SECTION 26. Claimant’s right to fair compensation.
SECTION 27. Marriage defined.
SECTION 1. Political power.—All political power is inherent in the people. The enunciation herein of certain rights shall not be construed to deny or impair others retained by the people.
SECTION 2. Basic rights.—All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
History.—Am. S.J.R. 917, 1974; adopted 1974; Am. proposed by Constitution Revision Commission, Revision No. 9, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
SECTION 3. Religious freedom.—There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.
SECTION 4. Freedom of speech and press.—Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for defamation the truth may be given in evidence. If the matter charged as defamatory is true and was published with good motives, the party shall be acquitted or exonerated.
History.—Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
SECTION 5. Right to assemble.—The people shall have the right peaceably to assemble, to instruct their representatives, and to petition for redress of grievances.
SECTION 6. Right to work.—The right of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.
SECTION 7. Military power.—The military power shall be subordinate to the civil.
SECTION 8. Right to bear arms.—
(a) The right of the people to keep and bear arms in defense of themselves and of the lawful authority of the state shall not be infringed, except that the manner of bearing arms may be regulated by law.
(b) There shall be a mandatory period of three days, excluding weekends and legal holidays, between the purchase and delivery at retail of any handgun. For the purposes of this section, “purchase” means the transfer of money or other valuable consideration to the retailer, and “handgun” means a firearm capable of being carried and used by one hand, such as a pistol or revolver. Holders of a concealed weapon permit as prescribed in Florida law shall not be subject to the provisions of this paragraph.
(c) The legislature shall enact legislation implementing subsection (b) of this section, effective no later than December 31, 1991, which shall provide that anyone violating the provisions of subsection (b) shall be guilty of a felony.
(d) This restriction shall not apply to a trade in of another handgun.
History.—Am. C.S. for S.J.R. 43, 1989; adopted 1990.
SECTION 9. Due process.—No person shall be deprived of life, liberty or property without due process of law, or be twice put in jeopardy for the same offense, or be compelled in any criminal matter to be a witness against oneself.
History.—Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
SECTION 10. Prohibited laws.—No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.
SECTION 11. Imprisonment for debt.—No person shall be imprisoned for debt, except in cases of fraud.
SECTION 12. Searches and seizures.—The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.
History.—Am. H.J.R. 31-H, 1982; adopted 1982.
SECTION 13. Habeas corpus.—The writ of habeas corpus shall be grantable of right, freely and without cost. It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the public safety.
SECTION 14. Pretrial release and detention.—Unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great, every person charged with a crime or violation of municipal or county ordinance shall be entitled to pretrial release on reasonable conditions. If no conditions of release can reasonably protect the community from risk of physical harm to persons, assure the presence of the accused at trial, or assure the integrity of the judicial process, the accused may be detained.
History.—Am. H.J.R. 43-H, 1982; adopted 1982.
SECTION 15. Prosecution for crime; offenses committed by children.—
(a) No person shall be tried for capital crime without presentment or indictment by a grand jury, or for other felony without such presentment or indictment or an information under oath filed by the prosecuting officer of the court, except persons on active duty in the militia when tried by courts martial.
(b) When authorized by law, a child as therein defined may be charged with a violation of law as an act of delinquency instead of crime and tried without a jury or other requirements applicable to criminal cases. Any child so charged shall, upon demand made as provided by law before a trial in a juvenile proceeding, be tried in an appropriate court as an adult. A child found delinquent shall be disciplined as provided by law.
SECTION 16. Rights of accused and of victims.—
(a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.
(b) Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.
History.—Am. S.J.R. 135, 1987; adopted 1988; Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
SECTION 17. Excessive punishments.—Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the legislature, and a change in any method of execution may be applied retroactively. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. This section shall apply retroactively.
History.—Am. H.J.R. 3505, 1998; adopted 1998; Am. H.J.R. 951, 2001; adopted 2002.
SECTION 18. Administrative penalties.—No administrative agency, except the Department of Military Affairs in an appropriately convened court-martial action as provided by law, shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.
History.—Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
SECTION 19. Costs.—No person charged with crime shall be compelled to pay costs before a judgment of conviction has become final.
SECTION 20. Treason.—Treason against the state shall consist only in levying war against it, adhering to its enemies, or giving them aid and comfort, and no person shall be convicted of treason except on the testimony of two witnesses to the same overt act or on confession in open court.
SECTION 21. Access to courts.—The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.
SECTION 22. Trial by jury.—The right of trial by jury shall be secure to all and remain inviolate. The qualifications and the number of jurors, not fewer than six, shall be fixed by law.
SECTION 23. Right of privacy.—Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.
History.—Added, C.S. for H.J.R. 387, 1980; adopted 1980; Am. proposed by Constitution Revision Commission, Revision No. 13, 1998, filed with the Secretary of State May 5, 1998; adopted 1998.
SECTION 24. Access to public records and meetings.—
(a) Every person has the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution. This section specifically includes the legislative, executive, and judicial branches of government and each agency or department created thereunder; counties, municipalities, and districts; and each constitutional officer, board, and commission, or entity created pursuant to law or this Constitution.
(b) All meetings of any collegial public body of the executive branch of state government or of any collegial public body of a county, municipality, school district, or special district, at which official acts are to be taken or at which public business of such body is to be transacted or discussed, shall be open and noticed to the public and meetings of the legislature shall be open and noticed as provided in Article III, Section 4(e), except with respect to meetings exempted pursuant to this section or specifically closed by this Constitution.
(c) This section shall be self-executing. The legislature, however, may provide by general law passed by a two-thirds vote of each house for the exemption of records from the requirements of subsection (a) and the exemption of meetings from the requirements of subsection (b), provided that such law shall state with specificity the public necessity justifying the exemption and shall be no broader than necessary to accomplish the stated purpose of the law. The legislature shall enact laws governing the enforcement of this section, including the maintenance, control, destruction, disposal, and disposition of records made public by this section, except that each house of the legislature may adopt rules governing the enforcement of this section in relation to records of the legislative branch. Laws enacted pursuant to this subsection shall contain only exemptions from the requirements of subsections (a) or (b) and provisions governing the enforcement of this section, and shall relate to one subject.
(d) All laws that are in effect on July 1, 1993 that limit public access to records or meetings shall remain in force, and such laws apply to records of the legislative and judicial branches, until they are repealed. Rules of court that are in effect on the date of adoption of this section that limit access to records shall remain in effect until they are repealed.
History.—Added, C.S. for C.S. for H.J.R.’s 1727, 863, 2035, 1992; adopted 1992; Am. S.J.R. 1284, 2002; adopted 2002.
SECTION 25. Taxpayers’ Bill of Rights.—By general law the legislature shall prescribe and adopt a Taxpayers’ Bill of Rights that, in clear and concise language, sets forth taxpayers’ rights and responsibilities and government’s responsibilities to deal fairly with taxpayers under the laws of this state. This section shall be effective July 1, 1993.
History.—Proposed by Taxation and Budget Reform Commission, Revision No. 2, 1992, filed with the Secretary of State May 7, 1992; adopted 1992.
1Note.—This section, originally designated section 24 by Revision No. 2 of the Taxation and Budget Reform Commission, 1992, was redesignated section 25 by the editors in order to avoid confusion with section 24 as contained in H.J.R.’s 1727, 863, 2035, 1992.
SECTION 26. Claimant’s right to fair compensation.—
(a) Article I, Section 26 is created to read “Claimant’s right to fair compensation.” In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000.00 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants. This provision is self-executing and does not require implementing legislation.
(b) This Amendment shall take effect on the day following approval by the voters.
History.—Proposed by Initiative Petition filed with the Secretary of State September 8, 2003; adopted 2004.
SECTION 27. Marriage defined.—Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.