Gun ban for felons upheld

Two opinions released by the Missouri Supreme Court have further defined the scope of a 2014 constitutional amendment on the right to bear arms.

Building on a series of opinions issued in summer 2015, the court ruled last week that the amended language in effect following the adoption of Amendment 5 does not bar the state from regulating the possession of firearms by nonviolent felons and affirmed that the changes are not retroactive.

In two 5-2 decisions, the court reversed three cases originating in St. Louis County that had dismissed counts of unlawful possession of a firearm.

Judge Laura Denvir Stith wrote the majority opinions in both cases. She wrote that in each of the cases, the trial court’s ruling was based on the adoption of the amendment, which added language to the Missouri Constitution that requires strict scrutiny of laws restricting the right to bear arms.

In the case of Pierre Clay, a man who was stopped for a traffic violation in January 2015 and found to be in possession of a revolver, she wrote the judge erred in construing the language to bar the legislature from adopting laws that regulate the possession of arms by nonviolent felons.

“The legislature has the authority to adopt laws, except when expressly prohibited by the constitution, and section 23 is silent as to the right of nonviolent felons to possess firearms,” she wrote.

Clay had a prior felony conviction for unlawful use of a weapon. He moved to dismiss the unlawful possession charge, arguing that the amended language prohibits the legislature from criminalizing his possession of the firearm and the court agreed. The state appealed the judge’s decision.

Of the cases before the court, his is the first to be challenged where his charge came after the adoption of Amendment 5.

Stith also noted that the “strict scrutiny” portion of the amendment has no impact in the case because of the court’s 2015 rulings, because the court has always applied the standard to laws regulating firearms.

The second opinion involved two similar cases of men charged with unlawful possession of a firearm prior to the amendment’s adoption. Their cases were similarly dismissed by circuit judges.

Stith wrote in the opinion for that case that the state’s ability to regulate possession of a firearm is governed by the version of the law in effect at the time of the crime, also in line with previous rulings.

Amendment not a ‘substantial change’

Of the two opinions, Clay heavily leans on three rulings from 2015, Dotson v. Kander, State v. Merritt and State v. McCoy.

In Dotson, the court reviewed a challenge to the language of the ballot title and upheld the validity of the election results for Amendment 5.

The court held in Merritt and McCoy, where two men were charged with unlawful possession prior to the passage of the amendment, that the law is not retroactive and the felon-in-possession law passes the strict scrutiny standard because it is narrowly tailored to serve a compelling government interest.

Stith wrote that Clay’s argument that the amendment worked a “substantial change” and now bars any regulation of the right of nonviolent felons to possess firearms was rejected by the court in their Dotson opinion.

“Dotson rejected this argument precisely because it found that Amendment 5 did not substantially change article I, section 23,” she wrote.

Stith further added the court found the change instead was an expression or declaration of existing rights.

“It simply enshrined the status quo as to the right to bear arms,” she wrote.

Dissent: ‘Strict scrutiny’ not met

Judge Richard B. Teitelman wrote dissenting opinions in both cases and was joined by Judge George W. Draper III.

Teitelman held that the state did not demonstrate that “restricting the fundamental constitutional right of nonviolent felons is narrowly tailored to meet a compelling state interest in public safety.”

He wrote that the state offered insufficient evidence that the ban would reduce gun crime, the court should consider the scope of nonviolent offenders and the majority opinion improperly applied case law by relying on State v. Eberhardt.

On the second point, he said the list of nonviolent felonies is long and growing. He wrote that the unlawful possession statute strips “the delinquent taxpayer of his or her constitutional rights on the same terms as a murderer.”

“I fail to see how restricting the constitutional rights of those who bet on horse races or divulge the names and addresses of donors to a state-established trust fund is narrowly tailored to the prevention of gun violence,” he wrote.

Shifting the burden

Dave Roland, director of litigation for the Freedom Center of Missouri, argued on Clay’s behalf before the Supreme Court. His organization also filed amicus briefs in each of the three cases.

He said the court’s rulings should concern Missourians.

“Regardless of what a person thinks about the right to keep or bear arms, the way the court arrived at the rulings on Tuesday (about) Amendment 5 actually poses a real jeopardy to every constitutional right,” he said.

Roland said the court’s actions Tuesday “have abandoned the traditional strict scrutiny test” on the restriction of a constitutional right.

He said it’s traditionally been the presumption of the courts that a challenged law is unconstitutional and further, that the government has the burden to prove that there is a compelling interest and that the regulation is narrowly tailored.

“They have shifted the burden back to the challenger,” he said.

Roland said Amendment 5 made a clear distinction between violent felons and others. He said while research shows violent felons have a high risk of reoffending, that’s not necessarily true of nonviolent felons

“There’s not any evidence that shows that someone convicted of a relatively minor regulatory offense that just happens to be a felony poses a risk of violence to anybody else,” he said.

He noted the list of nonviolent felonies Teitelman listed in his dissent.

“I think Judge Teitelman hit the nail on the head,” he said. “I think it’s very concerning for every constitutional right if this is the way the court is going to apply strict scrutiny,” he said.

The cases are State of Missouri v. Pierre Clay, SC94954; State of Missouri v. Raymond Robinson, SC94936, and State of Missouri v. Steve Lomax, SC94989.