Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that a Missouri statute[2] prohibiting possession of a firearm while intoxicated was not facially unconstitutional or unconstitutional as applied to the defendant.
I. Facts and Holding
The State of Missouri charged the defendant, John L. Richard, with possession of a firearm while intoxicated.[3] The State filed an information alleging that, during a domestic disagreement with his wife, Richard threatened to "blow[] his head off."[4] Richard also threatened that, if his wife called 911, he would walk outside with a gun and make the police kill him.[5] The information further alleged that Richard then consumed "an unknown amount of morphine and amitripyline" and was subsequently found seated in his house, unconscious, intoxicated, and in possession of a loaded firearm and extra ammunition.[6] Richard filed a motion to dismiss the information, claiming that the statute was unconstitutional because it "effectively bans the possession of firearms in the home by anyone who is present in his/her home while intoxicated."[7] The Circuit Court for Mississippi County agreed and sustained Richard's motion, finding that Section 571.030.1(5) "is unconstitutional to the extent that it prevents a citizen from possessing a firearm, actual or constructive, in the confines of his home while he or she is legally intoxicated."[8]
The Supreme Court of Missouri reversed.[9] Reviewing the constitutionality of the statute de novo, the court addressed Richard's two challenges to the law: that Section 571.030.1(5) was facially unconstitutional because it was overbroad and that the law was unconstitutionally applied to Richard in violation of his Second Amendment right to bear arms.[10]
Richard first argued that the law was unconstitutional on its face because it was "overbroad."[11] However, the supreme court quickly dismissed this argument because the overbreadth doctrine applies only in the First Amendment context.[12] Richard attempted to use language from State v. Beine[13] to extend the overbreadth doctrine beyond the First Amendment, but the supreme court found the language cited by Richard to be dicta and therefore rejected his claim.[14]
Richard also claimed that Section 571.030.1(5) was unconstitutional as applied to him because it violated his right under the Missouri and United States Constitutions to keep a gun in his home for self-defense.[15] However, at the time of this decision (and as of this writing), the Supreme Court of the United States had never ruled that the Second Amendment applies to the states.[16] Therefore, the issue was presented only under Article I, Section 23 of the Missouri Constitution, which provides a similar, non-absolute, individual right to bear arms.[17]
The Supreme Court of Missouri accepted Richard's claim of a right to own and possess a gun in his own home.[18] The court also noted the legislature's "wide discretion to exercise its police power" and the demonstrable threat posed to the public by intoxicated firearm possession.[19] Given the non-absolute nature of Richard's right to bear arms, the legislature's broad discretion in regulating that right through its police power, and the threat posed to the public by intoxicated firearm possession, the Supreme Court of Missouri found that Section 571.030.1(5) was "a reasonable exercise of the legislative prerogative to preserve public safety by regulating the possession of firearms by intoxicated individuals."[20] The court also dismissed Richard's claim that this application of the statute made it per se illegal to possess firearms in one's home while intoxicated.[21] The statute was upheld, and the state was allowed to continue with its case.[22]
II. Legal Background
The Supreme Court of Missouri found that Section 571.030.1(5) was constitutional both facially and as applied to Richard. Even though the statute contains a broad prohibition on gun possession, its purpose is supported by the state's police power, which justifies its restriction on an individual's Article I, Section 23 rights.
A.Facial Constitutionality
"A statute is presumed to be constitutional and will not be invalidated unless it clearly and undoubtedly violates some constitutional provision and palpably affronts fundamental law embodied in the constitution."[23] A defendant to whom a criminal statute may be constitutionally applied cannot argue that the statute may be hypothetically applied to others in an unconstitutional manner.[24] Although some statutes may be declared unconstitutional because they too broadly prohibit protected conduct, this applies only to First Amendment conduct.[25] The Supreme Court of Missouri has invalidated one criminal statute on that basis.[26]
Richard argued – and the trial court agreed – that Section 571.030.1(5) was unconstitutional because it prevents a citizen from possessing a firearm in his home while legally intoxicated.[27] However, the Supreme Court of Missouri found that Richard's argument was based on the overbreadth doctrine and that the doctrine did not apply outside the First Amendment context.[28] Although Richard cited a case that purported to strike down a criminal statute because it was overbroad, the court found that the basis for reversal in that case was insufficient evidence; therefore, the overbreadth language Richard cited was dicta.[29] Concluding that the overbreadth doctrine applied only to First Amendment cases, the Supreme Court of Missouri declined to extend it to Second Amendment contexts and found that Section 571.030.1(5) was facially constitutional.[30]
B. Constitutionality as Applied
The Missouri Constitution states "[t]hat the right of every citizen to keep and bear arms in defense of his home, person and property . . . shall not be questioned . . . ."[31] Like its counterpart in the federal Constitution, Missouri's guarantee of the right to "keep and bear arms" is not absolute, and the state may regulate this right through its inherent police power.[32] The police power exists to protect the public's health, welfare, and safety "by regulating all threats" thereto.[33] There are numerous cases that exemplify the danger posed by intoxicated possession of a firearm.[34]
Richard claimed that Section 571.030.1(5) was unconstitutionally applied to him because the statute could be used to entirely prohibit the possession of a firearm in the home while a resident is lawfully intoxicated.[35] However, because his case was dismissed immediately after he was charged, the only information the Supreme Court of Missouri had to rely on was the state's information and probable cause affidavit.[36] Given only the state's allegation that Richard had threatened his wife and himself and that he was allegedly found passed out with a loaded weapon and extra ammunition, the court found that his conduct was not (or at least could be proven not to be) protected by Article I, Section 23 of the Missouri Constitution.[37]
III. Comment
Richard's claim, though itself inadequate, raises several potential issues for firearms regulation as case law develops around the Second Amendment and its Missouri counterpart. Should the Second Amendment be applied to the states (as some have suggested it will),[38] Missouri courts will have to juggle both federal Second Amendment jurisprudence and their own decisions on the state constitution. While constitutional gun rights have only been held to apply to limited circumstances in the home, any expansion of those rights by either set of courts could put laws such as this to a series of very rigorous tests. Although the argument did not save Richard, the state could charge a person who is intoxicated in his own home and is constructively in possession of firearms in the house. And that person very well could – and in this author's view, should – prevail in an as-applied challenge to prosecution under this statute.
- Cole David Bradbury
[1] 298 S.W.3d 529 (Mo. banc 2009).
[2] Mo. Rev. Stat. § 571.030.1(5) (Supp. 2008). All references to Missouri Revised Statutes are to the 2008 Supplement unless otherwise noted.
[3] Richard, 298 S.W.3d at 530.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id. at 530-31.
[9] Id. at 530.
[10] Id. at 531.
[11] Id.
[12] Id. (citing U.S. v. Salerno, 481 U.S. 739, 745 (1987)).
[13] 162 S.W.3d 483 (Mo. banc 2005).
[14] Richard, 298 S.W.3d at 531.
[15] Id. at 530.
[16] See id at 531. (citing District of Columbia v. Heller, 128 S.Ct. 2783, 2813 (2008), and noting that the issue was to be argued in Spring Term 2010 in McDonald v. City of Chicago, cert. granted, 130 S.Ct. 48 (Sept. 30, 2009)).
[17] Id. at 531-32; Mo. Const. Art. I, § 23 ("That the right of every citizen to keep and bear arms in defense of his home, person and property . . . shall not be questioned . . . .").
[18] Id. at 532 (citing State v. Horne, 622 S.W.2d 956, 957 (Mo. banc 1981)).
[19] Id. (citing Craig v. City of Macon, 543 S.W.2d 772, 774 (Mo. banc 1976) (legislature's discretion)); id. at 532 n.5 (collecting cases of death, threats, and severe injury resulting from intoxicated firearm possession).
[20] Id. at 532.
[21] Id. at 532-33. The prosecutor had alleged a more narrow factual circumstance: that Richard had actual (rather than constructive) possession of the gun and was not acting in self-defense. Id. The court also noted that the statute has a specific exception for self-defense. Id. at 532 (citing Mo. Rev. Stat. § 571.030.5).
[22] Id. at 533. Judge Fischer concurred separately to argue that the Second Amendment applies to the states. Id. at 533-34.
[23] Board of Educ. of City of St. Louis v. State, 47 S.W.3d 366, 368-69 (Mo. banc 2001) (internal citations and quotations omitted).
[24] United States v. Raines, 362 U.S. 17, 21 (1960).
[25] State v. Carpenter, 736 S.W.2d 406, 407 (Mo. 1987).
[26] Id. at 408.
[27] Richard, 298 S.W.3d at 530-31.
[28] Id. at 531.
[29] Id.
[30] Id.
[31] Mo. Const. art. I, § 23.
[32] State v. Horne, 622 S.W.2d 956, 957 (Mo. banc 1981); cf. District of Columbia v. Heller, 128 S.Ct. 2783, 2817 (2008).
[33] Craig v. City of Macon, 543 S.W.2d 772, 774 (Mo. 1976).
[34] Richard, 298 S.W.3d at 532 n.5 (collecting cases of death, threats, and severe injury resulting from intoxicated firearm possession).
[35] Id. at 532-33.
[36] Id. at 532.
[37] Id. at 532-33.
[38] See Jess Bravin, High Court Agrees to Hear Gun-Rights Case, Wall St. J., Oct. 1, 2009, at A5 (available at http://online.wsj.com/article/SB125432086519552597.html).
