MO: Supreme Court; Once Prohibited, Always Prohibited?

Gun Watch ^ | 14 April, 2016 | Dean Weingarten

[marktwain]

The Missouri Supreme Court has now repeatedly ruled that the provisions of the Constitutional amendment put in place by Amendment 5 to Article 1, Section 23, only apply to actions that have occurred after the passage of the amendment.  The U.S. Supreme Court has ruled that Constitutional provisions apply retrospectively; but that is on case law, not on a Constitutional amendment.

The Missouri Supreme Court first ruled this way in State v. Merritt in 2015.  At that point it ruled that the previous version of Article I, Section 23 applied to a felony conviction forbidding the possession of firearms.  From leagle.com:

"The settled rule of construction in this state, applicable alike to the Constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only."

The court has recently ruled on two more cases involving Amendment 5.  Observers thought these cases could test the provision in Amendment 5 that grants the power to the state to strip the right to keep and bear arms from violent felons, but does not give the state power to remove the right to bear arms from non-violent felons.  Here is the applicable wording of Article I, Section 23, as amended by Amendment 5:

Text of Section 23:

Right to Keep and Bear Arms--Exception

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 duly adjudged mentally infirm by a court of competent jurisdiction.

In the case involving Mr. Hill, Mr. Hill plead guilty to a forgery conviction in 1973, with the understanding that if he completed probation, all his rights would be restored.  His rights were restored in 1975, but the court ruled that he had no right to conceal carry in 1975, so he has no right to conceal carry in 2014, before Amendment 5 went into effect. From the Missouri Supreme Court(pdf):

The trial court’s judgment was entered in April 2014. Article I, section 23 was amended in August 2014. This Court has previously determined that the August 2014 amendment to article I, section 23 applies prospectively only. State v. Merritt, 467 S.W.3d 808, 812 (Mo. banc 2015). Therefore, the August 2014 amendment to article I, section 23 does not apply to this case. Mr. Hill’s first and second points are denied.

In the second set of cases, the defendants were convicted of non-violent offenses before Amendment 5 became effective, and were charged with felon in possession of firearms before Amendment 5 was put  into place by voters.  The Supreme Court of Missouri used the same logic as in State v. Merritt.  From Non-Violent Offender SC94936 and SC94989:6(pdf):

This Court reverses. This Court recently held in State v. Merritt, 467 S.W.3d 808 (Mo. banc 2015), and State v. McCoy, 468 S.W.3d 892 (Mo. banc 2015), that article I, section 23 as in effect prior to the 2014 adoption of Amendment 5 did not prohibit the State from regulating the possession of arms by nonviolent felons and that the pre-Amendment 5 version of article I, section 23 applies to crimes committed prior to adoption of that amendment. That ruling directly applies here and requires the judgments to be reversed and the cases to be remanded.

It appears that we will have to wait for a case to be appealed through the courts, to the Missouri Supreme Court, where the events in question have all occurred after the passage of Amendment 5 on August 5th, 2014.

Does a Constitutional right only apply to all actions that occur after the right was codified into law?  If a person was convicted of a non-violent felony in 1973, does that mean that his rights under Amendment 5 are non-existent going forward?

We may see a case with that question before the Missouri Supreme Court some time in the future.

  ©2016 by Dean Weingarten: Permission to share is granted when this notice is included.
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[marktwain]

To me, this looks as though the Supreme Court does not want to actually rule on this issue. There will be a case brought forward where the events happened after the passage of Amendment 5. The Judges will then face a quandary: Do I rule as the law requires; or do I rule as I wish policy to be?

It may be a hopeful sign that they do not wish to rule. At least it indicates a bit of concern for a blatant violation of their oath.

[Don Corleone]

Doesn’t our now somewhat shredded Constitution prohibit ex post facto laws?

[lepton]

This Court has previously determined that the August 2014 amendment to article I, section 23 applies prospectively only.

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That makes sense...if you mean that the Amendment does not give him the right to carry at a time prior to its enactment. The Amendment is in place today though, and should apply today.

[marktwain]

“Doesn’t our now somewhat shredded Constitution prohibit ex post facto laws?”

Yes, it does. But a law generally prohibits actions, while a Constitutional protection protects actions.

It will be interesting to see a case where someone with a previous non-violent guilty plea, such as Mr. Hill, applies for a concealed carry permit *after* Amendment 5 was enacted.

[The Continental Op]

This isn’t an ex post facto issue. That issue arises when they try to punish you now (criminally) for conduct that was legal when you committed it.

In this case, the Merrit case was, IMHO, decided correctly. Typically, a change in the law which decriminalizes conduct does not apply retroactively to void convictions obtained prior to the change in the law, UNLESSy a court rules that the conduct was at ALL points in time constitutionally protected. Then you get retroactive application. You also get it if retroactive application is written into the new law. Lots of problems can be solved if they draft carefully, but they often don’t.

Hill is on a stronger footing. He is not fighting a conviction. He is now simply arguing that he should be granted a permit because the conduct which bars him no longer bars him, as (apparently) the change in the constitution now allows banning only those with VIOLENT felony convictions from permitting. I think the court in HILL used the same analysis they used in Merrit, and they should not have. Again, clearer drafting would have helped all parties.