Falling through the cracks: Missouri amends its felon firearm possession statute.

Author:Hanna, Adam E.

Missouri Revised Statute [section] 571.070


    In early September 2007, police in Cape Girardeau, Missouri, arrested a previously convicted felon whom they discovered driving with a loaded gun, a magazine of ammunition, and a stun gun in his vehicle. (1) The man, who was convicted in Illinois in 2000 for sexual abuse and failing to register as a sex offender, was later released after police determined that his possession of the gun, ammunition, and the stun gun did not violate Missouri law. (2) This incident inspired Cape Girardeau County Prosecuting Attorney H. Morley Swingle to lobby for changes to Missouri's statute prohibiting some felons from possessing firearms. (3)

    Influential state legislators, including the president pro tem of the senate, immediately expressed support for Swingle's proposed revisions to the law. (4) On June 26, 2008, Governor Matt Blunt signed Missouri House Bill 2034 into law which, among other things, made it easier for a person previously convicted of a felony to be arrested and prosecuted for possessing a firearm. (5)

    The changes made by the 2008 Missouri Legislature to the state's felon-in-possession law were mostly improvements. While the changes were intended to enact "better protections ... to prevent dangerous felons from falling through the cracks when it comes to firearm possession," (6) it is not clear that the drafters of the new statute considered all of the potential consequences arising from the changes. While some of the consequences are positive and will resolve the legitimate concerns expressed by prosecutors (7) and the media, (8) a number of unintended outcomes may arise from the new formulation of the statute as well. This Note argues that the state legislature should have enacted a statute following the contours of the federal statute in pursuit of a consistent, simple approach to regulating felons' possession of firearms. This Note also reviews the general background of laws prohibiting felons from possessing firearms, considers the constitutional implications of those laws, and critically examines the recent changes to the Missouri felon-in-possession statute.


    The federal government and many states have enacted legislation that prohibits, to some extent, a felon from lawfully possessing a firearm. State and federal laws vary widely, each with its own nuances and exceptions.

    1. Federal Approach

      Under 18 U.S.C. [section] 922(g), felons may not "possess ... any firearm or ammunition; or ... receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." (9) The statute defines a "firearm" as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive" as well as the frame of such a weapon, a muffler or silencer, or a destructive device. (10) However, it is important to note that "antique firearms" are expressly excluded from this definition. (11) The "antique firearm" exception allows persons otherwise prohibited from possessing firearms to own firearms manufactured during or before 1898, certain replicas, and muzzleloading guns that cannot fire fixed ammunition. (12) Even modern muzzleloaders that could be purchased in a retail store fall within the definition of an "antique firearm." (13)

      The restrictions present in 18 U.S.C. [section] 922(g) apply to "any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year," (14) although certain exceptions narrow this definition. For example, persons charged with federal or state crimes "pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices" are not included. (15) In addition, those convicted of state crimes punishable by a term of imprisonment of two years or less but considered misdemeanors are also excluded. (16)

      The law also allows a person who is disqualified from possessing a firearm to appeal to the Attorney General for relief from the ban. (17) If an application is approved by the Attorney General, the appellant is no longer prohibited from possessing a firearm. (18) If the application is denied, however, the individual can appeal the denial to the district court. (19) Furthermore, only a denial of relief is appealable, not the government's failure to approve or deny the application. (20) The practical effect of this configuration is to make it impossible for an individual to appeal the Attorney General's decision to take no action on an application for relief.

    2. Missouri Approach

      Prior to 2008, Missouri Revised Statute [section] 571.070 stated:

      1. A person commits the crime of unlawful possession of a concealable firearm if he has any concealable firearm in his possession and:

        (1) He has pled guilty to or has been convicted of a dangerous felony, as defined in section 556.061, RSMo, or of an attempt to commit a dangerous felony, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a dangerous felony, or confined therefor in this state or elsewhere during the five-year period immediately preceding the date of such possession; or

        (2) He is a fugitive from justice, is habitually in an intoxicated or drugged condition, or is currently adjudged mentally incompetent.

      2. Unlawful possession of a concealable firearm is a class C felony. (21)

        The law refers to Missouri Revised Statute [section] 556.061 for its definition of "dangerous felony," which includes the crimes of:

        [A]rson in the first degree, assault in the first degree, attempted forcible rape if physical injury results, attempted forcible sodomy if physical injury results, forcible rape, forcible sodomy, kidnapping, murder in the second degree, assault of a law enforcement officer in the first degree, domestic assault in the first degree, elder abuse in the first degree, robbery in the first degree, statutory rape in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense, statutory sodomy in the first degree when the victim is a child less than twelve years of age at the time of the commission of the act giving rise to the offense, and, abuse of a child pursuant to subdivision (2) of subsection 3 of section 568.060, RSMo, [and] child kidnapping. (22) C. Other States' Approaches

        States have not taken a uniform approach in regulating felons' possession of firearms. For example, Connecticut law takes a strict approach, similar to the revised Missouri statute. The plainly written Connecticut statute prohibits any person who has been convicted of a felony from possessing any firearm or stun-gun-type device. (23) The law contains no time limitations, limitations on the nature of the predicate offense, or exceptions for certain weapons. (24)

        Georgia's statute is somewhat more narrowly tailored than those in Missouri and Connecticut. While all felons are forbidden from possessing firearms under the Georgia law, the nature of their initial crime impacts the potential punishment for the possession offense. (25) Any felon convicted of unlawfully possessing a firearm is subject to a sentence between one and five years. (26) If a felon whose predicate offense was one of an enumerated group of offenses termed a "forcible felony," then the sentence is five years. (27)

        Indiana's law resembles the pre-revision Missouri statute. Under this statute, those previously convicted of a "serious violent felony" are prohibited from possessing a firearm. (28) The law also provides for convictions under state laws which are "substantially similar" to the elements of a "serious violent felony." (29) While the statute terms the offenses "violent," it also includes some non-violent drug offenses. (30)

    3. The Constitutional Right to Bear Arms

      The right to possess firearms is, to some degree, protected by both the United States Constitution (31) and the Missouri Constitution. (32) Nevertheless, cases decided under both the federal and state constitutions have held that some legislative limits on the classes of persons who are allowed to own or keep weapons are permissible. The nature and extent of these limitations remains the key unresolved issue.

      1. Federal Statute and Caselaw

        The United States Supreme Court first interpreted the Second Amendment to allow significant regulation of firearms in the 1939 case of United States v. Miller. (33) In Miller, the defendant was indicted for possessing an unregistered double-barrel shotgun with a barrel less than eighteen inches in length in violation of federal law. (34) The defendant challenged the indictment on the basis that the statute violated his Second Amendment right to bear arms. (35) The Court disagreed, stating that the Second Amendment only applies to firearms considered part of "ordinary military equipment" to "contribute to the common defense." (36) Until 2008, Miller was the United States Supreme Court's only guidance to lower courts regarding the application of the Second Amendment.

        The United States Supreme Court first upheld 18 U.S.C. [section] 922(g), the federal felon-in-possession statute, as constitutional in Lewis v. United States. (37) In Lewis, George Calvin Lewis, Jr. was indicted and later convicted for unlawfully receiving and possessing a firearm as a felon. (38) Lewis' predicate offense was a 1961 state court conviction for breaking and entering. (39) The primary point on appeal was whether the predicate felony conviction could be collaterally attacked in defense of the felon-in-possession charge. (40) The Court ruled against Lewis, finding that the felon-in-possession law was valid regardless of the fact that the original offense could be collaterally attacked on constitutional grounds. (41) While Lewis' primary holding is not directly pertinent...

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