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Missouri Supreme Court says Amendment 5 did not extend gun rights to non-violent felons

Missouri Supreme Court says Amendment 5 did not extend gun rights to non-violent felons

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ST. LOUIS • A state constitutional amendment on the right to bear firearms does not allow nonviolent felons to carry guns, the Missouri Supreme Court ruled in a set of opinions announced Tuesday.

The two 5-2 decisions, written by Judge Laura Denvir Stith, reversed lower court rulings from St. Louis that had thrown out the convictions of three men based on the Aug. 5, 2014, passage of Amendment 5. It declared the right to keep and bear arms “unalienable” and subjected laws restricting gun rights to “strict scrutiny.”

Validity of the prohibition on violent felons was never in dispute.

But the lower court rulings had created fear among prosecutors that they would no longer be able to charge nonviolent felons for having guns. The high court ruling said the amendment does not put that law in jeopardy.

“We are thrilled with the court’s decision today,” said Beth Orwick, chief trial assistant for St. Louis Circuit Attorney Jennifer Joyce. “Prior to this decision coming down, we really thought Amendment 5 was going to impact our ability to hold felons accountable.”

What became problematic was the specific wording of the gun rights proposition, passed by 60 percent of voters in August 2014, which carved out an exclusion for “convicted violent felons.”

The law prohibits any felon from having a gun. It does not differentiate between prior violent and nonviolent offenses. For that reason, the lower courts held that it did not survive Amendment 5’s “strict scrutiny” test.

If framers of Amendment 5 had intended to create a “blanket prohibition on felons in possession of firearm,” St. Louis Circuit Court Judge Robert Dierker asked, why would they reference only “convicted violent felons”?

Prosecutors, in appealing his ruling and others, argued that the specific language did not prevent lawmakers from imposing restrictions on other felons as well.

The measure’s sponsor, Sen. Kurt Schaefer, R-Columbia, has told the Post-Dispatch that allowing felons to automatically have possession of firearms was not “the intent or legal effect of Amendment 5.”

The state’s top court agreed.

“The legislature has the authority to adopt laws, except when expressly prohibited by the constitution, and (Amendment 5) is silent as to the right of nonviolent felons to possess firearms,” the court noted.

Had Amendment 5 intended to prohibit lawmakers from regulating nonviolent felons, it would have simply said so, Stith wrote.

The opinion cited prior court rulings that found the state’s firearm possession charge “survives even the most stringent formulation of the strict scrutiny standard in that it is narrowly tailored to achieve a compelling state interest” — public safety.

Joyce’s office issued about 300 felon-in-possession cases from May to December 2015. It’s hard to say how many cases might have been affected by a contrary ruling, because the office has no way to track whether the prior offenses would be considered violent versus nonviolent.

That 300 does not include hundreds of cases in which felon in possession was a secondary charge.

The main opinion Tuesday involved the case of Pierre Clay, charged in February 2015 after being found a month earlier with a gun despite a prior conviction for unlawful use of a weapon. In April 2015, the charge was dismissed, based on challenges raised over Amendment 5.

The Freedom Center of Missouri, which advocates for individual liberties and limited government, cited dissents by Judges Richard B. Teitelman and George W. Draper III in criticizing the rulings Tuesday. It believes Amendment 5 intended nonviolent felons — which could include someone who failed to pay their taxes or who illegally bet on horse races — to have the same gun rights as everyone else.

The organization, which along with St. Louis defense attorney Nick Zotos represented Clay in his appeal, called him “a hard-working husband and father” who had a gun because he “simply wants to keep his family safe.”

“It is heartbreaking and senseless that he now faces time in prison for no reason other than that he exercised his constitutional right to possess a firearm for defensive purposes,” the statement, by executive director Jenifer Zeigler Roland, read.

“The majority has today rejected the idea that our constitutions impose serious restrictions on governmental power and has announced that, no matter how clearly any individual right is stated in the Missouri Constitution, four judges (a court majority in Missouri) who do not like that right can render it meaningless.”

The second opinion involves Raymond Robinson and Steve Lomax.

Robinson was arrested July, 28 2014, after police found a pistol in a vehicle search. He had a prior conviction in St. Louis on a felony charge of unlawful use of a weapon, for carrying a concealed weapon in 2003.

On June 12, 2014, Lomax was arrested and charged with unlawful possession of a firearm, possession of a controlled substance and unlawful use of drug paraphernalia.

Even though the cases were still pending when Amendment 5 passed, the opinion noted that what matters is the law that existed at the time the crime occurred. For that reason, the court did not rule on the merits of the argument presented by the men’s lawyers.

The pair of rulings reverse all three dismissals and send them back to the circuit court.

Jennifer S. Mann is a reporter for the St. Louis Post-Dispatch.

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