MO Supreme Court to Consider Right of Non-Violent Felons to Bear Arms

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The Missouri Supreme Court will determine if they will uphold Amendment 5, which was passed by an overwhelming majority of the people last year. The amendment states that the right to keep and bear arms is a unalienable right and that the state government is obligated to uphold that right. Seem straightforward. Lower courts have ruled that Amendment 5 meant what it said in its clear language. The City of St. Louis claims that it really isn’t clear at all … because guns. But under Missouri law, judges aren’t allowed wiggle room to declare that a right only applies in a few rare circumstances, or that some fuzzy state purpose overrides that right . . .

The case hinges on whether Amendment 5 allows non-violent felons to own firearms.

From komo.com:

“Section 23. 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.

The city’s argument is essentially that guns are bad. More guns result in more bad things. People who commit felonies are more likely to commit more felonies. Therefore keeping them from having guns is a good thing. The Supreme Court can abrogate Amendment 5 because, well, because no one can stop them.

The state’s arguments are these: the Amendment means what it says. It differentiates between violent and non-violent felonies. The current law covers all felonies, therefore it’s not tailored to the Constitutional requirements, and should be struck down. The Court has the authority and the duty to uphold the will of the people as expressed in the amendment.

Even the ACLU of Missouri has come out on the side of upholding Amendment 5.

Here is the opening paragraph of their argument:

The federal constitution provides the floor, not the ceiling, for the liberty that is guaranteed to citizens against state governments. Even prior to the adoption of the Fourteenth Amendment—that is, before the Bill of Rights was incorporated to the States—the framers of Missouri’s Constitution and the voters of this State chose to enact a constitutional provision insuring an individual’s right to keep and bear arms. Missouri has never mirrored the language of the Second Amendment.

A Court invalidating an amendment to the Constitution that was duly passed by the electorate is corrosive to the respect for and rule of law. It strikes at the heart of the idea of the consent of the governed, one of the key principles the United States is founded on.

That the consent of the governed is under assault isn’t too surprising; one of the core beliefs of elitists’ is that it’s up to them to “manufacture” such consent. In their view, it’s up to them to decide what the electorate should vote for. And when the voters make “incorrect” decisions, it’s up to the elite to fix their errors.

The Second Amendment is one of the errors that the current governing elite wants to correct. It remains to be seen if the Missouri Supreme Court will bow to the will of the people, or to the self-anointed elite.

©2015 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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comments

  1. avatar Chip Bennett says:

    Go Missouri! Good things just keep happening in the Show Me State.

    (Though, someone enlighten me: how can a state supreme court, which derives its very existence – much less, its authority – from the state constitution, strike down a duly enacted amendment to that constitution?)

    1. avatar uncommon_sense says:

      Chip,

      Missouri’s supreme court cannot claim legitimacy and strike down this amendment to Missouri’s constitution.

      The only circumstance I can imagine where a state supreme court would be obligated to strike down a state constitutional amendment is if the amendment codified the violation of a minority group’s right to life, liberty, or property. For example, if an amendment declared that the general population could kill a minority group, the court would be obligated to strike down the amendment in my opinion. Beyond anything so blatantly vulgar, a state’s supreme court would be obligated to uphold an amendment.

  2. avatar Woody W Woodward says:

    The court is government. The government is answerable to the people. Missouri’s constitutiona reflects the will of the people. End of debate!
    [W3]

    1. avatar Jonathan - Houston says:

      The will of the people is just mob rule without constitutional protection of the rights of individuals.

      Would you endorse a “will of the people” amendment that reinstated slavery or codifying coverture?

  3. avatar Gary Schulze says:

    I agree Chip. SCOTUS can interpret the law and can strike down laws when the law clearly violates the Constitution, but usually courts will only strike down the offending parts. By definition, they can’t strike down the Constitution or its amendments.

    Likewise, I would think that the MO court can only clarify and interpret this amendment, specifically what constitutes a violent felon.

  4. avatar Grindstone says:

    A Court invalidating an amendment to the Consitution that was duly passed by the electorate is corrosive to the respect for and rule of law. It strikes at the heart of the idea of the consent of the governed, one of the key principles the United States is founded on.

    Except, you know, when that amendment infringes upon the rights and liberties of the people, even if they are not the majority of those voting for the amendment. That is tyranny of the majority.

    1. avatar Chip Bennett says:

      Which is why SCOTUS struck down Prohibition?

      Again: by what authority would the state supreme court strike down a provision of the state constitution? If you want to make the case that SCOTUS, interpreting a state constitution against the federal constitution, could strike down a provision of that state constitution – I can certainly buy that. But not the state supreme court.

      1. avatar Grindstone says:

        I didn’t say anything about state, or federal, court authority or where it derives from. Neither did the passage quoted.

        And what do you mean “again”? I didn’t post in response to your question.

        1. avatar Chip Bennett says:

          I didn’t say anything about state, or federal, court. Neither did the passage quoted.

          Really?

          FTA:

          The Missouri Supreme Court will determine if they will uphold Amendment 5, which was passed by an overwhelming majority of the people last year.

          And:

          A Court invalidating an amendment to the Consitution that was duly passed by the electorate is corrosive to the respect for and rule of law. It strikes at the heart of the idea of the consent of the governed, one of the key principles the United States is founded on.

          The article is plainly talking about the Missouri Supreme Court taking up the matter of Amendment 5, and the potential of the Missouri Supreme Court striking Amendment 5 as unconstitutional.

        2. avatar Mk10108 says:

          Ooooo….brain fight.

        3. avatar Grindstone says:

          And I am obviously talking about courts in general.

          The passage I quoted starts off as such:

          A Court invalidating an amendment to the Consitution that was duly passed by the electorate is corrosive to the respect for and rule of law.

          If this passage was directed to Missouri, the court the main portion of the article is about, then it would (or at least should) read as “The Court…”
          I can’t speak for Mr. Weingarten’s writing skills (other than his misspelling of “Constitution”). But the article “a” indicates a generic noun. IE if I were to say “A Chip is completely misinterpreting my post” I would be referencing anybody named Chip.

          You’re trying to pick a fight, Chip. I’m not. I agree with you that SCOTUS interpreting the state constitution for validity is a legitimate process. The state court process is too varied across all 50 states for me to post regarding that.

        4. avatar Chip Bennett says:

          You’re trying to pick a fight, Chip. I’m not.

          No am I; rather, I was attempting to discuss within the context of the OP – which (I thought?) clearly referred to potential actions by the Missouri Supreme Court.

  5. avatar Libertarian says:

    Good Idea to negate the flatrate ban for all people /”Felons” in nfa act 68 on state base.
    Another Point would to kick out missouris extrem long off place list from 18 places arround under scrit scrutiny.

  6. avatar mark_anthony_78 says:

    This amendment is all good, but aren’t all felons Federally prohibited, regardless of what MO law states?

    I guess it means state/local police won’t arrest non-violent felons with guns but the Feds still can.

    1. avatar Chip Bennett says:

      How would the feds have jurisdiction?

      1. avatar mark_anthony_78 says:

        Where would they not? Are there safe zones where one can violate Federal law (legally)? The local police/sheriff may not want to assist with the Federal enforcement (since no state law was broken), but I don’t think it’s a jurisdiction issue.

        1. avatar Chip Bennett says:

          The feds need a matter of federal jurisdiction (such as interstate commerce), in order to act. That’s why a State such as Colorado can pass a law legalizing the production, sale, and possession of marijuana, and the feds can’t stop them: no jurisdiction, until someone tries to take the marijuana across state lines.

        2. avatar int19h says:

          Under the standing interpretation of the Commerce clause, the feds do have jurisdiction over both weed and guns even if they don’t cross state lines (because they “participate in commerce” by virtue of existing and therefore affecting supply, or so the Wickard decision goes). It’s just that the present administration has decided that they won’t interfere with state legalization of drugs, though even there they have drawn up a bunch of exceptions. They didn’t say anything of a kind wrt guns.

        3. avatar Joey says:

          Safe Places? Yeah a perfect xample is State of Colorado & Marijuwanna laws . Federally is illegal but in State of Colorado it’s legal .

      2. avatar mark_anthony_78 says:

        Isn’t darn near every federal gun law on the books a result of “interstate commerce”?

        Once “on the books” you’re saying they need some other “trigger” to be able to enforce the law? That doesn’t sound right. I think if you are federally prohibited, the ATF could knock on your door and arrest you for firearm possession any time they want, same as they could for drug possession in Colorao, except they likely need the local resources to chip in, and without that cooperation the little fish aren’t worth their time.

    2. avatar Jonathan - Houston says:

      I was wondering that, myself. Regardless what MO’s law states, to buy from an FFL requires a proceed from NICS, which rejects felons of all flavors.

      I could see MO’s law allowing purchases via private sale for nonviolent felons, but that would still run afoul of federal law, even though a NICS check isn’t involved. The only way I can see reconciling the two is perhaps for a firearm completely unencumbered by the Commerce Clause, but I really don’t know.

      1. avatar Sian says:

        I don’t know. If MO’s concealed carry permit process allows a non-violent felon to receive a permit, and a valid permit can be substituted for a NICS check, then they’re all good.

        I haven’t been to Missouri in a while so I don’t know how they roll with that.

        1. avatar mark_anthony_78 says:

          Federal law prohibits even the *possession* of firearms for certain people regardless of the transfer method.

        2. avatar Chris Mallory says:

          Not really, I am in KY and use my CCW in lieu of an NCIS check. I still have to fill out the 4473. Question 11c reads “Have you ever been convicted of a felony”. No mention of violent or non violent. You then certify that if you answered “yes” to any of the listed questions 11b-11l that you are prohibited from purchasing a firearm.

          Lying on the form is a felony under Federal law.

  7. avatar DJ says:

    I live in MO. Other than Kansas City and St. Louis, both of which are run by Democrat political machines, the state is very pro 2A. It’ll be interesting to see how this plays out.

  8. avatar Bill Kohnke says:

    Regarding felons, violent or otherwise, and let’s throw in those people who have been adjudicated mentally deranged and violently unstable, as a class used to be treated like everyone else after they were released from prison or an institute. It was only much later in our history that the courts and the legislatures decided to mark them as second-class citizens by denying some of their natural rights. I can’t find any legal basis for these actions in the federal Constitution, but it remains true today that under federal law your full rights restoration requires state action for state offenses (I presume federal violations would require a federal judge’s ruling to restore your full rights). Federal law also dictates that you have to petition your state for restoration of certain rights. If there is no such process for this in your state, you are SOL according to the feds. That one’s still being debated. The basic underlying question of why you may still be denied some of your rights after having served your time or been rehabilitated, remains a bit of a puzzlement. For those who would argue that these people have proven they cannot be trusted in public, I must ask, “Then why let them out? Isn’t a greater good performed by keeping them incarcerated until truly rehabilitated?” That brings us to the notion that having fixed terms of imprisonment is only meant to be used as a deterrent or punishment. The idea of rehabilitation is completely lost in the equation, and that may be the greatest tragedy of all. If the average Joe really does commit three felonies a day without even realizing it, amybe we should all be marked with original sin and labeled felons. It does rather seem we are headed that way.

    1. avatar mike says:

      I cannot agree with the lumping of all felons within one category. Possibly under the new Missouri concept of allowing non violent criminals to own firearms (possibly) should be a length of time clause. If a conviction (time and parole) has ended without additional violations in order to prove rehabilitation there should be a qualifying period of say 5 years to prove rehabilitation.

      1. avatar Justin Case says:

        I agree with this post in it’s entirety! Someone who has, lets say stolen something to get them a felony when they were 18, who has completely turned their lives around and have become a different person, has totally lost all rights to bear arms. I undoubtedly know someone will reply with, “they should have thought about that before they did it.” Yes, yes they should have. But on a daily basis, the average person breaks at least 2-3 laws. Rehabilitation is the entire reasoning for prison sentencing correct? So when the offender is released and “rehabilitated”, why are there no time released reinstatement of their rights? I agree with Mike, If five years has passed, and a non violent felon has completed all terms of sentencing, why can these REHABILITATED citizens not receive their rights back? Sure, you can contact your Governor and ask for a pardon, but what are the chances of this?! Especially with all of these Anti Gun activists running around! I fear the day that firearms are taken out of peoples homes and left with nothing to defend themselves and their families…I feel that a fully rehabilitated non violent felon should also have the means and the rights to protect themselves and their families. End Rant!

  9. avatar Vitsaus says:

    Obviously this is too moderate for TTAG. Many on this board would like violent felons to have guns also. Nothing like an armed convicted rapist living next door to make the community feel safer.

    1. avatar Ralph says:

      Incarcerated felons should be armed, which would take care of the prison overcrowding problem.

    2. avatar Chip Bennett says:

      Many on this board would like violent felons to have guns also.

      [Citation Needed]

    3. avatar foggy says:

      Because laws against felons being armed keep them from arming themselves. Only a statist could even pretend to believe that.

    4. avatar Chris Mallory says:

      If he is still a danger, why is he walking the street?

  10. avatar Stoopid says:

    “shall not be infringed”

    Hmmm, don’t see felon anywhere.

  11. avatar 2Asux says:

    What a delightful movie script. Too bad it isn’t real, might give some people bad ideas that freedom and sovereignty of citizens outweighs “compelling interests”, like making people feel safe.

    If only something like this movie could set precedent for actual legislation across the nation.

  12. avatar Brian M says:

    They’re still felons. Felons tend to not be the kind of people you want to be armed, given the kinds of antics that it takes to become one…

    1. avatar george from fort worth says:

      given that over time, felony crime increase has a large component of formerly misdemeanor charges being upgraded to felony so the punishment could be increased….and for no other reason.

    2. avatar mike says:

      That Sr, is not a universal truth. Not all past felons remain a bad individual. Many ex-felons have successfully became rehabilitated and as such should not be subjected to the restrictions of those who are habitual offenders. A habitual offender won’t be in the public eye for long, besides those individuals already have access to guns by which to commit future crimes. I understand the view of the general public however I believe it may also be misguided and ill placed if a situation ever occurred to where a person’s family was not able to be protected, possibly even yours, in a public setting thusly those who provided the protection I don’t not believe you would worry or condem them over prior legal issues,rather, you would be thankful for being able tuck your child in, or kiss your wife or girlfriend goodnight. Or would you?

    3. avatar tony bob says:

      when i was in my 20’s i was quite rebellious. i ended up in prison for driving on a revoked license. I had maybe 12 altogether over the years. since i use a wheelchair i used that as a excuse not to drive. that was 30 years ago. and i have not had any offenses other then traffic since then. does that mean i would be a irresponsible gun owner? making someone remain a felon for the rest of his life is dumb. i cant even get a decent job to this day cuz of my reckless youth. its counter productive. ps i never physically hurt a soul.

  13. avatar Andrew says:

    I had possession of marijuana over 35 grams in 2001 which resulted in a class C felony. First offense with no alcohol offenses.
    Since I grew up; graduated college a year after, worked at same job 14 years AND own / run a computer business where the City uses my services. Have a young child and Since 1994 I have been a Quadriplegic in a wheelchair c6/c7 incomplete.
    I have had zero warnings or any violation of the law since.
    If it would have been a Alcohol offense I could get it expunged. Since none of the wording for marijuana is inside that contributes to 42 percent (according to mo chart).
    I cannot get the nice job I have been offered several times but their company cannot have a felony record on an employee in that area. Anything to do with guns are off limits except this debate here. I would love to have the right to have my gun again to go Deer hunting by Rifle. Been using crossbow the last 5 years and fairly good but the wheelchair part deserves something.

    Do you believe I should be able to get firearm restoration? Please give your opinion.

  14. avatar Libertarian says:

    You should have your rights never lost in that case !

  15. avatar dave says:

    I am a felon for child support am I allowed to muzzle load since I can buy one at Walmart and not have a gun check curious I too want to hunt I mean I never did a crime child support is a debt that is my question

  16. It is the mind-set of the public, that Once a felon, Always a felon. Including law enforcement. Felons have done their time and no matter how long being off parole, the public and law enforcement consider them to still be felons. Felons cannot get food stamps or low housing because they WERE once a felon. Felons are not usually bad to the core. Some make bad decisions, and pay for it the rest of their lives. It effects employment too.

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