Recent news stories have reported on the petition drive to put on the 2020 ballot a constitutional amendment to make assault-type weapons illegal in Florida. These stories also report the filing with the Florida Supreme Court by Florida Attorney General Ashley Moody of objections to the petition and requesting the court keep the proposed amendment off the ballot because of defects in its language. The Herald-Tribune published an editorial stating Moody’s objections are not valid and urging that the Supreme Court approve the proposed amendment for inclusion on the ballot and for the voters to adopt it.
Neither the news stories or the editorial detailed Moody’s objections and why they are not valid. The purpose of this column is to do both.
Moody has four specific complaints.
First, she states that the ballot title and summary are defective in not being broad enough. The title refers to “defined assault weapons.” The summary defines assault weapons as “semiautomatic rifles and shotguns or detachable magazine capable of holding more than 10 rounds of ammunition at once, either in a fixed or detachable magazine, or any other ammunition-feeding device.” She complains that the fact that this “would ban almost every semiautomatic long gun” is not explained. Her objection is not valid. The whole point of a semiautomatic gun is to be able to fire multiple shots, almost all of which can fire more than 10 rounds (with the exception of the traditional double-barrel shotgun), so neither the title nor the summary is misleading.
The second complaint is that the title and summary do not explain that someone who owns a banned gun when the amendment takes effect is exempt from the ban only if the owner registers it with the Florida Department of Law Enforcement. This objection also is not valid. The title states that the amendment bans possession of “defined assault weapons,” while the summary states that the exemption “requires the registration of assault weapons lawfully possessed” before the effective date of the amendment. It is hardly a fatal defect that neither says with whom the registration must be filed.
The third objection is that, while the amendment has a 30-day delay between adoption and taking effect, the “ballot language” does not state that during that period a person can buy an assault-type weapon and come within the pre-owned exemption. Again, this is not a valid objection. The ballot language does provide for the 30-day delay in the effective date. This necessarily means a weapon bought in the delay period is not banned by the amendment. There is no reason why the ballot language must expressly state this.
Moody’s last objection is that the amendment not only provides that a violation of the amendment is a third-degree felony, the Legislature can increase the penalty. Although the ballot language does expressly provide for the possible increase, the summary states only that the amendment creates “criminal penalties” for a violation of it. The summary clearly puts voters on notice that it provides for the plural “penalties,” not just one penalty, and one of those penalties is that the Legislature can increase it.
This review indicates that the defects in the ballot title, summary, or the amendment itself are not misleading, but fairly put the voter on notice of the content of the amendment. They should not, consequently, provide a basis for the Supreme Court to keep it off the ballot or voters not to sign the petition to submit it to the voters in the 2020 election. Certainly the recent mass shootings in Texas and Ohio within 24 hours, added to the Pulse and Parkland shootings in Florida last year, demonstrate the need to ban assault-type weapons. If the proposed amendment has any defect, it is that it does not provide for the buyback of those assault weapons that will remain legal under it, but that does not invalidate the current petition.
Robert J. Martineau, of Nokomis, is Distinguished Research Professor of Law Emeritus, University of Cincinnati. He has taught state constitutional law, written three books on drafting laws in plain English, and has extensive experience in drafting state constitutional amendments.