Friday, April 10, 2015

State v. Robinson and Amendment 5

Opinion issued
February 27, 2015

Link to Amendment 5 Case Order

On August 5, 2014, Missouri voters passed Amendment 5, a provision that created added protections for the right to bear arms by amending Article 1, § 23 of the Missouri Constitution.  Amendment 5 requires that any regulation restricting the right to bear arms be “subject to strict scrutiny.”[i]  The amendment took effect September 4, 2014, and many debated about what effect, if any, it would have on existing gun restrictions in Missouri.

State courts are now hearing challenges to those statutes relating to gun regulation throughout the state.  One such case is State v. Robinson, in which a criminal defendant challenged Missouri’s felon in possession statute as unconstitutional under the revised § 23.  The honorable Judge Robert H. Dierker held that, as applied to Mr. Robinson, the felon in possession statute did violate § 23 and dismissed the prosecution against him.

I.                   Facts and Holding

St. Louis police officers arrested Raymond Robinson in July of 2014 after Robinson admitted to having a handgun in his car.[ii]  Robinson was previously convicted of unlawful use of a weapon, which is a felony.[iii]  He had “no record of violent felonies or mentally unstable behavior”;  however, he admitted to numerous previous arrests for assault and resisting arrest.[iv]

Robinson was charged with the unlawful possession of a firearm under § 571.070.1(1), RSMo, which makes it a crime for someone who “has been convicted of a felony under the laws of this state” to knowingly possess a firearm.[v]  Robinson filed a motion to dismiss his indictment under the theory that § 571.070.1 is unconstitutional under the new amendment to Article 1, § 23 of the Missouri Constitution.[vi]  Reserving his motion to dismiss, Robinson then filed a guilty plea with the court.[vii]

The motion to dismiss raised a number of issues for the court to resolve before it could reach the constitutionality of the statute. [viii]  The court first determined that Robinson had standing to raise Article I, § 23 as a defense to prosecution due to his status as a citizen.[ix]  The court then determined that Robinson’s conduct in carrying a firearm in his vehicle would have been protected under § 23 because he stated that he carried it for the lawful purpose of self-protection.[x]  Next, the court held that the amendment to § 23 governed in this case even though the prosecution began well before the amendment took effect.[xi]

The court then turned to the question of whether the revised § 23 invalidated § 571.070.1(1).[xii]  Here, the court held that § 23 and its recent amendment did not render the statute unconstitutional on its face, because “the constitution itself defines a set of circumstances in which § 571.070.1(1) can be constitutionally applied.” [xiii]  However, as applied to Robinson, the court held that the statute was unconstitutional because it was not “narrowly tailored” such that it protected compelling state interests of public safety and crime prevention without intruding unnecessarily on the now “unalienable” right to bear arms.[xiv] 

II.                Legal Background

Prior to 2014, Article I, § 23 of the Missouri Constitution provided:

That the right of every citizen to keep and bear arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned.[xv]

Its purpose as interpreted by Missouri courts was “to deny to the Legislature the power to take away the right of the citizen to resist aggression, force and wrong at the hands of another.”[xvi]   
Because the right to bear arms is a “limited right” under § 23, “a defendant who invokes the right is pleading justification for otherwise illegal conduct.” [xvii]

In an effort to strengthen protections for the right to bear arms in the state, the Missouri Legislature drafted-- and Missouri voters passed—Amendment 5.[xviii]  Article 1, § 23 now states in its entirety:

That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned.  The rights guaranteed by this section shall be unalienable.  Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement.  Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.[xix]

When courts are called upon to interpret constitutional or statutory language, courts must construe them “in keeping with [their] plain meaning so as to give effect to the intention of the voters.” [xx]  Courts may only look to “maxims of construction,” the context of the words, “evidence of the drafters’ intent, and historical context” if there is some ambiguity in the meaning of a provision.[xxi]

In this case, the court was called upon to determine the constitutionality of § 571.070.1(1) in light of the new content of § 23.  Statutes are to be presumed constitutional, but if the statute impinges on “fundamental rights,” it is subject to “strict scrutiny.”[xxii]  In this case, as the court noted, the amended language of § 23 explicitly calls for courts to apply strict scrutiny.  Thus, statutes such as § 571.070.1(1) that effect the right of citizens to bear arms must be “justified by a compelling state interest and . . .  narrowly drawn to serve precisely that interest.”[xxiii]

In conducting its inquiry, the court first considered whether Missouri’s felon in possession statute was unconstitutional on its face.[xxiv]  In order for a statute to be deemed facially unconstitutional, there must be “no set of circumstances under which the statute can be constitutionally applied.”[xxv]  However, as the court noted, § 23 itself “defines a set of circumstances in which § 571.070.1(1) can be constitutionally applied”[xxvi]:  the amendment explicitly grants the legislature authority to restrict the rights of “convicted violent felons to keep and bear arms.”[xxvii]  Therefore, the statute survived Mr. Robinson’s facial challenge.[xxviii]

Next, the court turned to Mr. Robinson’s argument that the statute, as applied to him, was unconstitutional.[xxix]  Here, the state relied on statements by Senator Kurt Schaeffer, who sponsored the amendment to § 23, in arguing that the amendment was not intended to invalidate existing statutes such as the felon in possession statute.[xxx]  The court noted that while such evidence “may be of some value in construing an ambiguous constitutional provision, it is of no consequence in dealing with an unambiguous constitutional command” such as the requirement that courts apply “strict scrutiny” to any restriction on the right to bear arms.[xxxi]

The court then considered whether the felon in possession statute served any “compelling interests.”[xxxii]  The state argued that both “public safety” and “prevention of crime” were compelling interests served by the statute.[xxxiii]  The circuit court had no trouble finding that both of those interests were compelling and were served by § 571.070.1(1).[xxxiv]

However, the court found that Missouri’s felon in possession statute failed the second part of the strict scrutiny test because its restriction on the “fundamental right” to bear arms was not “narrowly tailored.”[xxxv]  The downfall of the statute resided in its “undifferentiated prohibition on possession of firearms by all convicted felons.”[xxxvi]  The state unsuccessfully argued that studies tended to show “a reduction in risk for later criminal activity of approximately 20% to 30% from denying handguns to convicted felons.”[xxxvii]  For the court, however, this “correlation” was not enough:[xxxviii] this statistical information, if believed, only served to show “a rational basis” for the blanket prohibition on gun ownership by felons, a showing which falls far short of the high bar set by strict scrutiny.[xxxix]

In its argument, the state relied in part on a 2014 decision from the Supreme Court of Louisiana interpreting the state’s new gun rights amendment, which is very similar to Missouri’s amendment to § 23.[xl]  In that case, the Supreme Court of Louisiana held that Louisiana’s felon in possession statute withstood “strict scrutiny.”[xli]  However, the Robinson court was not persuaded by the state’s comparison due to the significant difference between Missouri’s felon in possession statute and Louisiana’s.  Specifically, the court observed that Louisiana’s statute (1) only applied to certain felonies “determined by the legislature to be offenses having the actual or potential danger of harm to other members of the general public” and (2) was time-limited to 10 years from the date of completion of sentence.[xlii]  By contrast, § 571.070.1(1) is “an undifferentiated blanket prohibition on possession of firearms by all felons,” for whatever purpose, and for an unlimited length of time.[xliii]

Due to these considerations, the court held that the statute “is not narrowly tailored to serve the State’s interest in crime prevention and public safety.”[xliv]  Specifically, the court found that as applied to the defendant, who had been convicted of only one non-violent felony more than a decade ago, and who had been carrying the weapon for allegedly lawful purposes in a lawful manner, the statute was unconstitutional.[xlv]

III.             Comment

State v. Robinson showcases the unexpected and far-reaching impact of the recent amendment to Article I, § 23 of the Missouri Constitution.  The amendment’s purpose was to answer in the affirmative “the critical question left open in McDonald[xlvi] and Heller,[xlvii] i.e., whether the right to keep and bear arms is a ‘fundamental right.’”[xlviii]  Through what may be called “sloppy” drafting, this relatively simple objective has spawned surprising and perhaps ominous results.[xlix]

Many in the legal community anticipated these effects, however.[l]  Prosecutors Jennifer Joyce and Jean Peters Baker opposed the amendment from the start, warning that the broad language and narrow exception for “convicted violent felons” could mean drastic changes for Missouri’s existing gun laws.[li]

 Missouri’s felon in possession statute is by no means the only state statute likely to face a challenge based on the amendment to § 23.  Other Missouri laws impose different restrictions on the right to bear arms;  for example, one statute prohibits the possession of guns in certain locations,[lii] while another prevents specific groups of people from obtaining concealed carry permits in the state.[liii]  The impact of revised § 23 on these statutes is yet to be seen.

State v. Robinson is not the only case that poses a challenge to Missouri gun restrictions based on the revised § 23.[liv]  The Supreme Court of Missouri has already heard oral arguments on one such case.[lv]  No opinion has been issued in that matter yet, but it is safe to say that the state is anxiously awaiting the Court’s resolution of this explosive issue.
- Kristen Johnson

[i] No. 1422-CR02934-01 (Mo. 22nd Cir., Div. 18, 2015), available at
[ii] Id.
[iii] Id.
[iv] Id. at 2-3.
[v] Id. at 1-2.
[vi] Id. at 2.
[vii] Id. at 2.
[viii] Id.
[ix] Id. at 3-4.
[x] Id. at 4-5.
[xi] Id. at 7.
[xii] Id. at 8.
[xiii] Id. at 9.
[xiv] Id. at 13-15.
[xv] See id. at 1.
[xvi] State v. White, 253 S.W. 724, 727 (Mo. 1923).
[xvii] Id.
[xviii] See Chris McDaniel, Amendment 5 Would Expand Gun Rights in Missouri, St. Louis Public Radio, July 13, 2014,
[xix] Mo. Const. art. I, § 23.
[xx] Robinson at 8.
[xxi] See generally Neske v. City of St. Louis, 218 S.W.3d 417 (Mo. banc 2007);  State v. Martin, 644 S.W.2d 359 (Mo. banc 1983).
[xxii] Robinson at 9.
[xxiii] Id.
[xxiv] Id.
[xxv] Id at 8-9.
[xxvi] Id. at 9.
[xxvii] Id.
[xxviii] Id.
[xxix] Id.
[xxx] Id. at 11.
[xxxi] Id. at 11.
[xxxii] Id.
[xxxiv] Id. The court cited McCullen v. Coakley, 134 S.Ct. 2518 (2014), for the proposition that “[p]ublic safety is a legitimate governmental concern”, and United States v. Salerno, 481 U.S. 739 (1987), a case in which “the government’s interest in preventing crime [was] recognized as compelling.” Id.
[xxxv] Id.
[xxxvi] Id. at 12.
[xxxix] Id. at 13.
[xl] Id. at 13;  State v. Eberhardt, 145 So.3d 377 (La. 2014).
[xli] See Robinson at 13.
[xlii] Id. at 14.
[xliii] Id.
[xliv] Id. at 14.
[xlv] Id. at 14-15.
[xlvi] McDonald v. City of Chicago, 561 U.S. 742 (2010) held that the right to bear arms protected by the Second Amendment to the U.S. Constitution applies to States through the Fourteenth Amendment.
[xlvii] District of Columbia v. Heller, 554 U.S. 570 (2008) held that the Second Amendment to the U.S. Constitution did confer an individual right to keep and bear arms, and that a city-wide ban on handguns violated that right.
[xlviii] Id. at 3-4.
[xlix] Robert Patrick and Alex Stuckey, St. Louis judge tosses out gun case, citing newly-enacted Amendment 5, St. Louis Post-Dispatch, March 2,2015,
[l] Jean Peters Baker wants Missouri lawmakers to change gun amendment: Prosecutor says new law allows violent criminals to carry guns,, Apr. 2, 2015,;  Felons in Missouri can legally carry guns, thanks to GOP’s poorly-written Amendment 5, Progress Missouri, Mar. 2, 2015,
[li] Felons in Missouri can legally carry guns, thanks to GOP’s poorly-written Amendment 5, Progress Missouri,  Mar. 2, 2015,
[lii] § 571.107, RSMo. (West 2014).
[liii] § 571.101, RSMo. (West 2014).
[liv] Rachel Lippmann, Gun Rights Amendment Had Unintended Outcomes; High Court to Decide Fate,  St. Louis Public Radio, Feb. 19, 2015,
[lv] State v. Merritt, SC94096 (Mo., argued Dec. 9, 2014).