Missed the Mark: The Supreme Court of Missouri's faulty application of strict scrutiny to the right to bear arms.

AuthorWilliams, Abigail E.
PositionNOTE

State v. Clay, 481 S.W.3d 531 (Mo. 2016) (en banc)

  1. INTRODUCTION

    The discussion of the scope and potential limitations of the Second Amendment has been at the forefront of the United States's political debate in recent years. Prior to 2008, Second Amendment jurisprudence was unclear as to what could constitute a lawful restriction of an individual's right to bear arms. (1) In 2008, the U.S. Supreme Court, in District of Columbia v. Heller, affirmed the Second Amendment guarantee of the right to bear arms, holding that a Washington, D.C., law that prohibited possessing handguns in the home was unconstitutional. (2) The Court further indicated that nothing in the opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." (3) Two years later, in McDonald v. City of Chicago, the U.S. Supreme Court held that the right to bear arms was fundamental and applied to the states. (4) While Heller and McDonald made clear that the Second Amendment was a limited fundamental right, neither decision defined the applicable constitutional standard for analyzing laws restricting the right to bear arms. (5)

    In 2014, Missouri amended its constitution to include Amendment 5, a provision that requires the application of strict scrutiny to any law limiting the right to bear arms. (6) In a sequence of cases, the last of which was State v. Clay, the Supreme Court of Missouri determined that section 571.070.1(1), a law that prohibited felons from possessing firearms, survived strict scrutiny. (7) In so holding, the Supreme Court of Missouri relied on the Heller dicta, even though the Heller Court did not apply the strict scrutiny standard. (8) This Note argues the Supreme Court of Missouri erred in its application of strict scrutiny. While it is difficult to measure the efficacy of gun control laws, it is evident that categorically and permanently banning felons from possessing firearms is not the least restrictive means of achieving the government's safety interest.

  2. FACTS AND HOLDING

    On January 26, 2015, Pierre Clay was stopped in St. Louis, Missouri, for a traffic violation and found possessing a revolver. (9) The police discovered he had a prior felony conviction and arrested him. (10) On February 25, 2015, Clay was charged by information with possession of marijuana under section 195.202 and unlawful possession of a firearm under section 571.070.1(1). (11) Section 571.070.1(1) prohibits previously convicted felons from possessing firearms. (12) Clay moved to dismiss the unlawful possession charge, claiming that section 571.070.1(1) was unconstitutional under article I, section 23 of the Missouri Constitution, after Amendment 5 was added on August 5, 2014. (13)

    Clay claimed that article I, section 23, as amended, precluded the legislature from regulating the possession of firearms by nonviolent felons. (14) He argued that the Missouri Constitution's explicit authorization of the legislature to regulate the possession of firearms by violent felons should be read to preclude the legislature from regulating the possession of firearms by nonviolent felons. (15) Further, Clay asserted that Amendment 5 substantially changed article I, section 23. (16) Therefore, he argued the precedent that deemed section 571.070.1(1) constitutional under the pre-Amendment 5 version of article I, section 23 should not be applied to his case. (17)

    The circuit court granted Clay's motion to dismiss the unlawful possession charge, determining that Amendment 5 barred the legislature from regulating the possession of firearms by nonviolent felons. (18) The State appealed. (19) The Supreme Court of Missouri held that Amendment 5 did not substantially alter article I, section 23 of the Missouri Constitution, and, therefore, the court's precedent which held that section 571.070.1(1) satisfied strict scrutiny remained applicable to this case. (20)

  3. LEGAL BACKGROUND

    In Clay, the Supreme Court of Missouri determined that section 571.070.1(1) was constitutional under the amended version of article I, section 23 of the Missouri Constitution. (21) The pertinent part of section 571.070.1(1) states:

    A person commits the crime of unlawful possession of a firearm if such person knowingly has any firearm in his or her possession and... [s]uch person has been convicted of a felony under the laws of this state, or of a crime under the laws of any state or of the United States which, if committed within this state, would be a felony[.] (22) Following the adoption of Amendment 5, (23) article I, section 23 of the Missouri Constitution states:

    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[begin strikethrough]; but this shall not justify the wearing of concealed weapons [end strikethrough]. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny [24] 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. (25) In reaching its decision in Clay, the Supreme Court of Missouri relied on the U.S. Supreme Court's interpretation of the right to bear arms in both District of Columbia v. Heller and McDonald v. City of Chicago, as well as recent Supreme Court of Missouri decisions interpreting these U.S. Supreme Court cases. Accordingly, this Part examines the Supreme Court of Missouri's interpretation of article I, section 23 within the framework of McDonald and Heller. This Part concludes with a comparison of other states' evaluations of firearm regulations post-Heller and McDonald to Missouri's.

    1. The U.S. Supreme Court's Interpretation of the Right to Bear Arms

      In District of Columbia v. Heller, the U.S. Supreme Court determined a District of Columbia law that banned the possession of handguns in the home was unconstitutional under the Second Amendment. (26) In an opinion authored by Justice Scalia, the Court held, "The handgun ban amounts to a prohibition of an entire class of 'arms' that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute." (27) The Court did not apply a specific level of scrutiny, noting that "banning from the home 'the most preferred firearm in the nation to "keep" and use for protection of one's home and family,' would fail constitutional muster" under any standard of scrutiny. (28) More important for the problems confronted in Clay was the Heller Court's dicta, which stated that nothing in the opinion "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms." (29) According to the Court, each of these regulations was "presumptively lawful." (30)

      In his dissent, Justice Breyer admonished the majority for its deliberate silence regarding the proper constitutional standard to evaluate laws under the Second Amendment. (31) The dissenting opinion explored some of the possible constitutional standards. (32) First, Justice Breyer opined that a rational basis standard was inconsistent with the majority's holding because the District of Columbia law undoubtedly bore "a 'rational relationship' to a 'legitimate governmental purpose.'" (33) Next, he determined that a strict scrutiny standard was also inconsistent with the majority's holding. (34) He asserted that the majority "implicitly, and appropriately," rejected strict scrutiny by broadly approving a set of laws, including "forfeiture by criminals of the Second Amendment right ... whose constitutionality under a strict-scrutiny standard would be far from clear." (35) He not only determined that the majority's dicta was inconsistent with strict scrutiny, but also that the adoption of a true strict scrutiny standard for evaluating firearm regulations would be practically impossible. (36)

      Two years later, in McDonald v. City of Chicago, petitioners filed suit against the city, alleging that its handgun ban violated the Second and Fourteenth Amendments. (37) Relying on the Heller decision, the McDonald Court held that the Fourteenth Amendment incorporates to the states the Second Amendment's right to bear arms for self-defense against the several states and any city therein. (38) The Court determined that the Heller decision indicated the right to bear arms was "fundamental" and "deeply rooted in this Nation's history and tradition" and was therefore incorporated in the concept of due process. (39) Like in Heller, the Court did not define a specific constitutional standard to evaluate laws limiting the right to bear arms. (40) Further, McDonald affirmed the Heller dicta regarding the presumed lawfulness of certain regulations, noting that "incorporation does not imperil every law regulating firearms." (41)

    2. The Supreme Court of Missouri's Reliance on the Heller and McDonald Precedent

      State v. Clay was preceded by four different Supreme Court of Missouri decisions that relied on Heller and McDonald. (42) First, State v. Richard was decided...

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