The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So a Missouri trial court held Friday, in State v. Robinson (Mo. Cir. Ct. Feb. 27, 2015); Missouri's right to bear arms provision had been strengthened last year. Missouri law bans gun possession by anyone who has a felony conviction, and the court had to decide whether that statute was limited by the state constitutional right:
Justice Story once wrote that the right to keep and bear arms is the "palladium of the liberties of a republic," and the people of Missouri echoed that sentiment by a substantial margin in 2014, when they amended the Bill of Rights of their constitution, art. I, §23, to read as follows:
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 language quoted above in bold type is the language added by the 2014 revision.
The defendant in this case indeed had a criminal record, and one not shrouded in the mists of antiquity:
Defendant, a partially disabled man in his fifties, who supports himself by doing odd jobs in his community, was detained by St. Louis police officers during the evening of July 28, 2014. The officers were acting on an anonymous tip that defendant was in possession of a firearm as well as pursuant to an outstanding warrant for defendant's arrest on a minor municipal charge….
Judging by his statements during the plea and by the sentencing assessment report, defendant has not been a model citizen. He was previously convicted of unlawful use of a weapon by carrying a concealed weapon in 2003. He served time in the penitentiary after failing on shock probation. His parole record was not stellar.
However, he has no record of violent felonies or mentally unstable behavior, although he does have prior arrests involving assault and resisting arrest and he admits to beating an individual who allegedly stole his tools. He reported to the author of the assessment report that he carries a gun for protection due to the cash basis on which he does work. His over-all risk assessment score (i.e., a gauge of the likelihood of re-offending) is above average, meaning that he is less likely to re-offend.
The court concluded that the Missouri Constitution did indeed protect nonviolent felons' rights to bear arms, at least in some situations (and of course only against prosecution under Missouri law; the federal firearm-in-possession ban would still apply). The court noted that the amendment expressly authorizes "general laws which limit the rights of convicted violent felons," but doesn't mention nonviolent felons. And the court concluded that the total ban on gun possession by felons failed strict scrutiny:
It is obvious that §571.070.1.(1) is not a "time, place and manner" regulation. It is a blanket prohibition on possession of a firearm by any convicted felon. As a substantive restriction on a fundamental right, therefore, it must be closely scrutinized to determine if it is narrowly drawn to serve the compelling state interest in public safety and crime prevention.
It is difficult to see how the statute's undifferentiated prohibition on possession of firearms by all convicted felons is narrowly drawn to achieve the State's legitimate objectives. The State cites "studies" purporting to show a correlation between prior criminal convictions and subsequent violent offenses, and a "reduction in risk for later criminal activity of approximately 20% to 30%" from denying handgun purchases to convicted felons. At the same time, the State cites a study which purports to link prior misdemeanor convictions with violent or firearm related criminal activity, suggesting that the prohibition applicable only to convicted felons is underinclusive. Regardless, none of the State's studies appears to establish more than a correlation, and correlation is not causation.
The problem with the studies cited by the State—assuming that they are of any evidentiary value—is that they do no more than show a rational basis for the prohibition at issue here. They do not establish that the prohibition is "narrowly tailored." Further, the State does not show that its studies controlled for variables such as the precise nature of prior offenses, the age or personal circumstances of the defendant at the time of the weapons offense and at the time of the later violent offense, or any of the other myriad factors that may be characteristic of future dangerousness. As was demonstrated in the context of the death penalty, statistics shed little light on the propriety of a penalty in the concrete case of an individual defendant. McCleskey v. Kemp, 481 U.S. 279 (1987).
Even assuming that the State's cited studies have evidentiary value, it does not follow that they establish that the blanket prohibition on felons' possession of firearms passes muster under §23. If the drafters and voters who approved the revised §23 considered that a blanket prohibition on felons in possession of firearms was unaffected by the revision, why include the express proviso regarding convicted violent felons? By including the express exception for violent felons, the people implicitly demanded something more to justify a prohibition applicable to all felons….
In the instant case, the evidence against the defendant is entirely that he possessed the pistol in his car, which would be a lawful act with or without proof of proper purpose. The State proffered no evidence that defendant's purpose in possessing the pistol was to commit any illegal act or in furtherance of any criminal conduct, such as distribution of controlled substances. Nor is there any reason to find that the defendant presents a demonstrable risk to the safety of any individual or of the public. His single prior felony conviction was (ironically) for carrying a concealed weapon. There is nothing in the record to suggest any misuse of weapons within the last ten years, and his risk of re-offending is low. His age and physical condition militate against undertaking violent offenses such as robbery or assault….
[T]he blanket prohibition on possession of firearms by convicted felons in §571.070.1(1) is not narrowly tailored to serve the State's interest in crime prevention and public safety. To survive strict scrutiny, a restriction on possession of firearms by non-violent felons requires more than the justification proffered by the State. Given that §571.070.1(1) fails to differentiate among classes of felonies, fails to define criteria whereby non-violent felons can be assessed for future dangerousness, and fails to impose any standard of proof before a non-violent felon can be stripped of his constitutional right to keep and bear arms, the Court concludes that the statute is unconstitutional as applied to defendant in this case.
[Footnote: The Court is not at liberty to rewrite statutes so as to supply criteria for denying the right to bear arms to persons convicted of non-violent felonies. The Court does not mean to imply that, if the State proved future dangerousness, the defendant's constitutional attack would fail. The problem is that the statute simply does not afford any basis to differentiate among persons convicted of non-violent felonies.]
The State's Attorney has said she would appeal. Note that the Louisiana Supreme Court upheld a ban on gun possession by people with serious and relatively recent felony convictions, even though Louisiana has a similarly strengthened right to bear arms provision (see this post). But the Missouri trial court rightly pointed out that the Louisiana case involved a much narrower law, focused on serious felonies: "By contrast [to the Louisiana law], the Missouri statute is … an undifferentiated blanket prohibition on possession of firearms by all felons, whether forgers and embezzlers or robbers and rapists, and whether they possess a firearm for protection of themselves and their families or for the advancement of some criminal enterprise."