Opinion handed down August 18, 2015
Marcus Merritt was charged with unlawful possession of a firearm pursuant to Missouri Revised Statutes Section 571.070.1.[1] Merritt claimed the law violated the protection in the Missouri Constitution of the right to bear arms.[2] The trial court sustained Merritt’s motion to dismiss, and the State appealed.[3] The Supreme Court of Missouri reversed this decision.
I. Facts and Holding
In 1986, Merritt was convicted of federal felony distribution of PCP, and in January 2013, Merritt was charged with unlawful possession of a firearm.[4] Merritt filed a motion to dismiss the indictment, claiming Section 571.070.1(1) violated the Missouri Constitution protection of the right to bear arms and the prohibition against the retrospective operation of laws.[5]
The trial court sustained Merritt’s motion and dismissed his unlawful possession counts with prejudice.[6] The State then filed for appeal, and the case was transferred to the Supreme Court of Missouri prior to the issuing of an opinion by the court of appeals.[7] While the State’s appeal was pending, Article I, Section 23 of the Missouri Constitution was amended, requiring courts to apply strict scrutiny to laws inhibiting citizens right to bear arms.[8]
II. Legal Background
Section 571.070.1(1) states:
A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and . . . [s]uch person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony.[9]
In terms of the retroactivity of criminal rules, the Supreme Court of the United States held in Griffith v. Kentucky “that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.”[10]
Secondly, in terms of the strict scrutiny standard under the prior version of Article I, Section 23, the Supreme Court of the United States held in United States v. Heller that the Second Amendment protects an individual’s right to own a handgun and possess the weapon in the home for self-defense, but did not state what level of scrutiny applies in Second Amendment challenges.[11] In addition, the Supreme Court of the United States held in McDonald v. City of Chicago that the right to bear arms as recognized in Heller is a fundamental right to our scheme of ordered liberty and fully applicable to the state through the Fourteenth Amendment.[12]
While Merritt’s appeal was pending, this court decided Dotson, in which the challengers to the law argued the language in the ballot title enacting the Amendment to Section 23 did not adequatelyinform voters that strict scrutiny would apply to laws affecting the right to bear arms under the Missouri Constitution.[13] In addition, the Dotson opinion reiterated the Supreme Court’s holdings in Heller andMcDonald and concluded “strict scrutiny would have applied under the Missouri constitution had a challenge been made.”[14] [15]
III. Instant Decision
In terms of whether the Missouri constitutional amendment would apply retroactively to Merritt’s claim, the court stated Griffith did not apply to the retroactivity of newly enacted state constitutional amendments and only applied to newly instituted procedural rules of federal constitutional law.[16] The court held that unless a different intent was evident, constitutional amendments were to be construed as having a prospective operation only.[17] Lastly, the court claimed the amended version of Article I, Section 23 did not have any text that suggested it was intended to be applied retroactively, and therefore, the law applied prospectively only.[18]
In terms of the level of scrutiny to apply, the court noted Merritt was charged with unlawfully possessing firearms after the McDonald decision was issued, and therefore, strict scrutiny applied. In considering whether Section 571.070.1(1) survived strict scrutiny, the court initially noted the application of strict scrutiny depended on context, governmental reasoning, pertinent facts, relevant differences, and the fundamental right surrounding the case.[19] The court again relied heavily on Dotson and noted, “strict scrutiny is generally satisfied only if the law at issue is ‘narrowly tailored to achieve a compelling interest.’”[20]
Merritt attempted to argue the statute was not narrowly tailored to achieve the State’s interest because it banned “all convicted felons under all circumstances from possessing firearms for life” and “ha[d] no exception for the inherent right of self-defense or defense of others.”[21] He also claimed the statute was overbroad because it could have contained a self-defense exception, applied only to violent or dangerous felonies, applicable for only a certain period of time, or under the convict qualified for reinstatement.[22]
The court held the State had a compelling interest in ensuring the safety of the American public and attempting to reduce firearm related crime. [23] Also, the court concluded the prohibition of felons possessing firearms was a narrowly tailored interest because “it is well-established that felons are more likely to commit violent crimes than are other law abiding citizens.”[24] The court ultimately concluded the narrow tailoring requirement did not require the exhaustion of every conceivable alternative.[25] In addition, the court specifically noted the statute did not apply to misdemeanors, felony convicts that have been pardoned or expunged, or antique firearms and did not prohibit self defense - only the possession of firearms.[26] The court concluded the restrictions of the statute were sufficiently tailored to achieve the State’s compelling interest, and therefore passed the application of strict scrutiny. The court ultimately reversed and remanded the decision of the trial court.
IV. Comment
The Merritt decision stands as a case that illustrates the importance of timing. Had Merritt been charged with possession of a firearm several years prior to January 2013, his arguments would have been far more persuasive, and the court would have been far more likely to rule in his favor. Unfortunately for Merritt, his charges came after the decisions in the McDonald and Dotson cases were decided. These cases severally inhibited his ability to effectively advocate his opinions, and achieve the result he sought in his case.
In addition, the Merritt decision shows that the application of strict scrutiny does not guarantee the striking down of a law. Despite the extremely high standard, the court determined the fundamental purposes advocated by the State in protecting its citizens of both the State of Missouri and the United States as a whole. In sum, the court appears willing to weigh on the side of caution more easily in cases involving the restriction of firearms and challenges to the Second Amendment.
- Nick Leslie
[1] State v. Merritt, 467 S.W.3d 808, 809-10 (Mo. 2015) (en banc).
[8] Id.
[10] Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
[11] District of Columbia v. Heller, 554 U.S. 570, 628-29 (2008).
[12] McDonald v. City of Chicago, 561 U.S. 742, 750 (2010).
[13] Dotson v. Kander, 464 S.W.3d 190, 193 (Mo. 2015) (banc).
[15] State v. Merritt, 467 S.W.3d 808, 813 (Mo. 2015) (banc).
[19] Id.
[22] Id.
