Posted on 04/17/2016 6:33:28 AM PDT by 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."
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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.
The trial courts 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. Hills 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.
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.
Doesn’t our now somewhat shredded Constitution prohibit ex post facto laws?
This Court has previously determined that the August 2014 amendment to article I, section 23 applies prospectively only.
“Doesnt 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.
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.
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