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Missouri v. Clay

Missouri v. Clay: The Missouri Supreme Court’s Failure to Properly Restrict Non-Violent Felons’ Right to Bear Arms

By Steven Levitt

Introduction

In Missouri v. Clay, the Missouri Supreme Court upheld the constitutionality of Missouri Statue 571.070.1’s restriction on a convicted non-violent felon’s right to bear arms, in light of the amendments recently made to the Missouri Constitution.[1]  Section 571.070 makes unlawful possession of a firearm a criminal offense if the person knowingly has a firearm in his or her possession and has been convicted of any felony.[2]  On August 5, 2014, the people of Missouri adopted an amendment to article 1, section 23 of the Missouri Constitution.[3]  Before the amendment, article 1, section 23 of the Missouri Constitution stated:

That the right of every citizen to keep and bear arms, in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.[4]

After the amendment, the Missouri Constitution stated:

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; but this shall not justify the wearing of concealed weaponsThe 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.[5]

Missouri Supreme Court’s Analysis

The Missouri Supreme Court held section 571.070.1 is a constitutional restriction of a convicted non-violent felon’s right to bear arms[6].

The court explained the amendment’s explicit language, giving the Missouri legislature authority to regulate the possession of firearms by violent felons, did not change the legislature’s ability to regulate the possession of firearms by other felons.[7]  The court explained the only groups identified by the amendment are convicted violent felons and those of mental disorder or infirmity.[8]  Further, the amendment’s language makes clear the standard of strict scrutiny does not apply to these identified classes.[9]  The amendment is silent as to all other classes of persons.[10]  However, the court explained this silence did not mean to prohibit the regulation of firearms with regard to these other people.[11]  By including the strict scrutiny language into the amendment, the amendment implicitly recognizes the Missouri legislature’s ability to regulate the possession of firearms.[12]  For if the legislature could not otherwise regulate the possession of firearms, there would be nothing to apply the strict scrutiny standard to.[13]  The court concluded the amendment set out the standard of scrutiny for regulation of firearms possessed by persons other than convicted violent felons, saying such regulations of other persons may be adopted but are subject to strict scrutiny.[14]

The court explained when applying strict scrutiny, the court looks to whether the regulation imposes reasonable, non-discriminatory restrictions that serve the State’s important regulatory interests or whether the encroachment is significant.[15]  The court recognized prohibitions on the possession of firearms by felons in the past had not been overturned, even when strict scrutiny was applied.[16]  The court then applied strict scrutiny to section 571.070.1’s restriction on the possession of weapons by felons, saying section 571.070.1 survives because it is narrowly tailored to achieve a compelling state interest.[17]  The court explained the state has a compelling governmental interest in ensuring public safety and reducing firearm related crime.[18]  Prohibiting felons from possessing firearms is narrowly tailored to that interest because it is well established that felons are more likely to commit violent crimes than are other law abiding citizens.[19]

Accordingly, the court held section 571.070.1 is constitutional because the amendments to article 1, section 23 do not prohibit the Missouri legislature from enacting such regulation, but instead subjects such regulation to strict scrutiny, which section 571.070.1 survives.[20]

Author’s Analysis

The Missouri Supreme Court erred in allowing section 571.070 to pass strict scrutiny when preventing non-violent felons from possessing firearms.  First, the majority accepts earlier decisions restricting the right to bear arms for all felons as proof non-violent felons can also be restricted without any discussion regarding this more specific group of people.  Specifically, the majority never explains how non-violent felons are more likely to commit violent crimes in the future.  Thus, the majority fails to show how specifically restricting non-violent felons passes strict scrutiny by serving a state interest.  Second, the majority ignores the fact that eliminating a non-violent felon’s constitutional right to bear arms to protect themselves and their families is completely disproportionate to the crime committed.  In Missouri, failing to fill out a federal tax form and gambling on horse racing while outside the enclosure of the race track are both felonies.[21]  Surely such non-violent crime does not rise to the level of abolishing a constitutional right.

Instead of preventing all non-violent felons from possessing firearms, the court should have adopted a rule which looks at the underlying nature of the non-violent felony.  If the non-violent felony conviction involved a weapon, the non-violent felon should be restricted from possessing a firearm.  Likewise, if no weapon was involved in the non-violent felony, the non-violent felon’s constitutional right to possess a firearm should not be taken away.  By looking at the underlying nature of the felony, the state is specifically targeting that narrowly tailored state interest the court is so concerned about; keeping weapons out of the hands of felons who carry weapons.  Such a standard would truly survive strict scrutiny because it serves such a narrowly tailored interest of preventing or deterring the criminals who have used weapons in the past from possessing them again.  While the majority was quick to conclude felons are more likely to commit violent crimes than others[22], is it not more reasonable to conclude felons who have used weapons in the past are more likely to commit crimes involving weapons than other citizens.

Further, the amendment included strict scrutiny because it is such a high standard to meet.  Article 1, section 23 establishes a fundamental right that the people of Missouri have and that right is subject to restriction only on the narrowest grounds.[23]  All citizens of Missouri have a right to bear arms and it is only when those citizens misuse that right can the State take that right away.  How can the state take such a fundamental U.S and Missouri Constitutional right away from those citizens who have not abused that right?  The answer is they can’t, and this is what the inclusion of strict scrutiny was supposed to address.

Conclusion

The Missouri Supreme Court has reaffirmed the constitutionality of restricting non-violent felon’s right to bear arms.  In doing so, the court has ignored the language of amended article 1, section 23 of the Missouri Constitution and declined to apply true strict scrutiny to restrictions placed on non-violent felon’s possession of firearms.  Instead, the court should have adopted a narrowly tailored approach which would only have prevented felons whose underlying felony involved a weapon from possessing firearms.  Such a standard truly survives a strict scrutiny analysis.

Steven N. Levitt*
Edited by Tyler Winn

Footnotes

[1] Missouri v. Clay, No. SC 94954, 2016 WL 503216, at *1 (Mo. banc Feb. 9, 2016).

[2] Id.

[3] Id. at *2.

[4] Id.

[5] Id. (new language in bold, deleted language struck through, italics added for emphasis).

[6] Clay, 2016 WL 503216, at *7 (emphasis added).

[7] Id., at *6 (emphasis added).

[8] Id., at *5 (emphasis added).

[9] Id.

[10] Id.

[11] Clay, 2016 WL 503216, at *5.

[12] Id., at *6.

[13] Id., at *5.

[14] Id. (emphasis added).

[15] Clay, 2016 WL 503216, at *3.

[16] Id., at *4 (citing District of Columbia v. Heller, 554 U.S. 570, 626-27 (2008)).

[17] Id.

[18] Id.

[19] Id.

[20] Clay, 2016 WL 503216, at *7.

[21] Id., at *8 n.3 (J. Teitelman Dissenting).

[22] Id., at *8 (J. Teitelman Dissenting).

[23] Id. (J. Teitelman Dissenting).

* Student at the Saint Louis University School of Law, Anticipate Graduation May 2017