In 1973, William David Hill plead guilty to a forgery charge. His rights were restored after he finished his probation in 1975 — save his right to keep and bear arms. This despite the 2014 Amendment 5 to Article 1, Section 23 of the Missouri state constitution that grants power to the state to strip the right to keep and bear arms from violent felons, but does not give the state power to remove the right to bear arms from non-violent felons. The court ruled that since Mr. Hill had no right to conceal carry in 1975, he had no right to conceal carry in 2014. Here is the applicable wording of Article I, Section 23, as amended by Amendment 5 . . .
Text of Section 23:
Right to Keep and Bear Arms–Exception
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 duly adjudged mentally infirm by a court of competent jurisdiction.
Again, Mr. Hill’s case was initially adjudicated before Amendment 5 went into effect. From the Missouri Supreme Court(pdf):
The Missouri Supreme Court has repeatedly ruled that the provisions of the Constitutional amendment put in place by Amendment 5 to Article 1, Section 23, only apply to actions that have occurred after the passage of the amendment. The U.S. Supreme Court has ruled that Constitutional provisions apply retrospectively; but that is on case law, not on a Constitutional amendment.
The Missouri Supreme Court first ruled this way in State v. Merritt in 2015. From the Missouri Supreme Court(pdf):
The trial court’s judgment was entered in April 2014. Article I, section 23 was amended in August 2014. This Court has previously determined that the August 2014 amendment to article I, section 23 applies prospectively only. State v. Merritt, 467 S.W.3d 808, 812 (Mo. banc 2015). Therefore, the August 2014 amendment to article I, section 23 does not apply to this case. Mr. Hill’s first and second points are denied.
In the second set of cases, the defendants were convicted of non-violent offenses before Amendment 5 became effective. They were charged with felon in possession of firearms before Amendment 5 was put into place by voters. The Supreme Court of Missouri used the same logic as in State v. Merritt to reverse a lower court’s decision reinstating their gun rights. From Non-Violent Offender SC94936 and SC94989:6(pdf):
This Court reverses. This Court recently held in State v. Merritt, 467 S.W.3d 808 (Mo. banc 2015), and State v. McCoy, 468 S.W.3d 892 (Mo. banc 2015), that article I, section 23 as in effect prior to the 2014 adoption of Amendment 5 did not prohibit the State from regulating the possession of arms by nonviolent felons and that the pre-Amendment 5 version of article I, section 23 applies to crimes committed prior to adoption of that amendment. That ruling directly applies here and requires the judgments to be reversed and the cases to be remanded.
The Missouri Supreme Court has now established that non-violent offenders whose convictions occurred after the right to keep and bear arms was codified into law (August 5, 2014) cannot claim that right. At this point, a legislative fix is the only viable solution.
©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
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