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 http://www.stltoday.com/amendment-case-order/pdf_b8416e12-b014-5809-be6d-0946fb980bff.html.
[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, http://news.stlpublicradio.org/post/amendment-5-would-expand-gun-rights-missouri.
[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.
[xxxiii] 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.
[xxxvii] Id.
[xxxviii] Id.
[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,
http://www.stltoday.com/news/opinion/columns/the-platform/editorial-legislature-to-felons-get-your-guns-in-the-show/article_359fc446-3439-5ddd-b6c1-b50dea3154aa.html.
[l] Jean Peters Baker
wants Missouri lawmakers to change gun amendment: Prosecutor says new law
allows violent criminals to carry guns, KMBC.com, Apr. 2, 2015,
http://www.kmbc.com/news/jean-peters-baker-wants-missouri-lawmakers-to-change-gun-amendment/32155458;
Felons in Missouri can legally carry
guns, thanks to GOP’s poorly-written Amendment 5, Progress Missouri, Mar. 2,
2015,
http://www.progressmissouri.org/content/felons-missouri-can-legally-carry-guns-thanks-gops-poorly-written-amendment-5.
[li] Felons in
Missouri can legally carry guns, thanks to GOP’s poorly-written Amendment 5,
Progress Missouri, Mar. 2, 2015,
http://www.progressmissouri.org/content/felons-missouri-can-legally-carry-guns-thanks-gops-poorly-written-amendment-5.
[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,
http://news.stlpublicradio.org/post/gun-rights-amendment-had-unintended-outcomes-high-court-decide-fate.
[lv] State v. Merritt,
SC94096 (Mo., argued Dec. 9, 2014).
