Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Should convicted felons in Missouri have the legal right to own and possess guns? Thousands of convicted burglars, thieves and drug dealers could win that right, depending on how the Missouri Supreme Court rules on three cases it heard arguments on last week.
In those cases, judges in St. Louis dismissed charges against three men accused of illegally possessing firearms as convicted felons. Judges found that the state law that the men were charged under violated an amendment to the Missouri Constitution enacted last year.
That amendment, passed overwhelmingly by the state’s voters, declared the “unalienable” right of Missouri citizens to keep and bear arms.
The amendment specified that the legislature could still prohibit “convicted violent felons” from possessing firearms.
The state criminal law, however, applies to all convicted felons, creating a one-word discrepancy between it and the state constitution.
That set up the legal dispute the Supreme Court is being asked to settle.
Though the court upheld the constitutionality of the law earlier this year in two similar cases, those cases involved the law prior to the enactment of the constitutional amendment.
Prosecutors across the state are watching the new cases closely, said Platte County Prosecuting Attorney Eric Zahnd.
“For the safety of our communities it is vitally important that the felon-in-possession law remain intact,” Zahnd said.
Zahnd said his office has continued to pursue such cases, but the legal uncertainty has “put a pall over the cases.”
Part of that uncertainty involves the lack of a definition about what constitutes a violent felony.
Prosecutors in Jackson County also have continued to file illegal-gun cases, but some judges have put those prosecutions on hold to see how the Supreme Court rules.
Jackson County Prosecuting Attorney Jean Peters Baker warned last year of the “unintended consequences” of the change.
“The proposed language has the potential to give gang members, drug dealers, domestic abusers and other criminals a right to carry guns,” she told lawmakers.
In their arguments in front of the Supreme Court last week, attorneys for the state argued that the amendment does not render the felon-in-possession law unconstitutional.
“The state may enact and enforce legislation restricting the right to bear arms as long as the state has a compelling interest in that law and the law is narrowly tailored to further that interest,” they said in court documents.
Preventing gun violence is that compelling interest, and the law is tailored narrowly toward only convicted felons, they maintain.
“Studies have shown convicted felons pose a danger of future criminal activity to society, regardless of the type of felony for which they previously have been convicted,” the state said in its court filings.
But attorneys for the affected men and public policy organizations like the Freedom Center of Missouri and the American Civil Liberties Union argue that the state constitution must take precedence over the statute.
“The people of this state have exercised their ‘inherent, sole, and exclusive right to regulate the internal government’ of this state, and this court must now give (the amendment) the meaning that flows naturally from the words Missouri’s voters have chosen,” the Freedom Center wrote in a court filing.
David Roland, an attorney with the nonprofit Freedom Center who argued on behalf of one of the men at the Supreme Court, said that because the case involves a “fundamental” constitutional right, the court must exercise “strict scrutiny” in assessing it.
That requires the court to presume the law is unconstitutional and the state must prove otherwise, he said.
Simply alluding to a study about the propensity of felons to commit future acts of violence is not the proof needed, according to Roland.
“In this case, the government has failed to put forward evidence showing that preservation of public safety requires that those convicted of non-violent offenses must be deprived of their constitutional right to keep and bear arms,” Roland wrote in court filings.
Roland said the case could have broader implications if the Supreme Court “lowers the bar” on how the state can justify a law impinging on a fundamental constitutional right.
“It could impact every other right protected by the constitution,” he said.
The American Civil Liberties Union of Missouri also weighed in on the side of the men in the St. Louis cases.
“While the state might have a compelling interest in preventing crime and promoting public safety, it has not demonstrated that a law prohibiting all former felons, including nonviolent ones, is necessary to further that interest,” attorneys for the ACLU wrote in a brief supporting the dismissal of charges against the three St. Louis men.
The Supreme Court has taken the three cases under advisement.
Allen Rostron, a law school professor at the University of Missouri-Kansas City, said he believes the court will rule in favor of the state.
The court indicated in rulings earlier this year that it believed the constitutional amendment didn’t change the state law, he said.
In essence, attorneys for the three St. Louis men are asking the court’s majority to overrule their previous decisions, he said.
And although he thinks that unlikely, Rostron said he was somewhat surprised that the court agreed to hear three new cases instead of just instructing the lower courts to reconsider the dismissal of charges in light of their rulings from earlier this year.
Ultimately, he said, the state needs to have a system that doesn’t leave police in the position of making an arrest and then sitting down to have a legal debate over the type of crime and whether the law applies.
“They can’t leave it hazy and gray,” he said. “It needs to be clear cut.”
http://www.kansascity.com/news/local/crime/article42444297.html