Judge blocks state's gun law [Missouri]

Round One of the court fight over concealed weapons went to gun opponents Friday when a St. Louis judge ruled that the law violated the Missouri Constitution.

Circuit Judge Steven Ohmer ruled that a 10-word phrase in the state constitution's Bill of Rights banned the carrying of concealed weapons.

The section at issue says that people have the right to bear arms “but this shall not justify the wearing of concealed weapons.”

“This is a direct limitation on the inherent power of the legislature to regulate the manner, time and place of the citizens' right to bear arms,” Ohmer wrote. “To read the constitutional provision and to find otherwise would make (those words) a nullity. Clearly, that was not the intent of the framers nor of the (public) adopting the Constitution.”

Ohmer's ruling renders invalid Missouri's new law allowing residents to obtain permits to carry concealed guns and sets the stage for an ultimate ruling by the Missouri Supreme Court.

Missouri Attorney General Jay Nixon, whose office defends the legality of state laws, filed an appeal to the Supreme Court and asked for an expedited hearing.

Gov. Bob Holden, who vetoed the bill and then saw lawmakers override his action, said the ruling would protect the public from an ill-conceived law.

Richard Miller, a Kansas City lawyer representing several public officials who sued to block the law, said the people who wrote the constitution in 1875 intended to ban concealed weapons. He said the current constitution, adopted in 1945, strengthened the ban.

Public sentiment has not changed, Miller said, citing the 1999 statewide referendum in which voters rejected a proposal to legalize concealed weapons.

Missouri gun-rights advocates, who have been working to legalize concealed guns since 1991, said they were not surprised by Oh-mer's ruling. Rep. Larry Crawford, a Centertown Republican who shepherded the bill through the House this year, said he knew gun rights would lose in a St. Louis court.

But Crawford said he was pleased that the judge rejected other arguments that opponents had raised.

The section that Ohmer used to overrule the law, Crawford said, simply gives the General Assembly the power to regulate concealed weapons. It has never previously been considered a ban.

“If there was any issue to go to the Supreme Court on, this is the one I would want,” Crawford said. “This puts us in the best position to win.”

Kevin Jamison, a Gladstone lawyer who is president of the Western Missouri Shooters Alliance, said the ruling made little sense. Hunters, for example, can carry concealed weapons while openly carrying other weapons, Jamison said. The law also allows judges, probation officers, people who serve legal papers and certain private security guards to carry concealed guns, he said.

“If the judge is correct, police officers can no longer carry concealed weapons,” Jamison said. “That is a mind-numbing, silly argument. It would mean that everything the legislature has done regarding concealed weapons in the last 125 years has been wrong and no one can carry a concealed weapon. Undercover police officers would have to carry openly.”

Ohmer based his decision largely on the intent of the framers of the 1875 constitution. He cited comments during the constitutional debate from Thomas Gantt, a St. Louis judge.

The wearing of concealed weapons, Gantt said, “meets with the general reprobation of all thinking men. It is a practice which cannot be too severely condemned. It is a practice which is fraught with the most incalculable evil.”

Ohmer cited Gantt's concern over an 1822 ruling by a Kentucky court. In that case, the Kentucky Constitution guaranteed the right to bear arms, using language similar to the wording proposed in Missouri. The Kentucky legislature later enacted a law to ban concealed weapons. But a court overruled the law because the state's constitution put no limits on bearing arms. So Gantt urged the convention to include in Missouri's constitution the phrase that the right to bear arms did not justify concealed weapons.

Ohmer rejected all other arguments that the law was unconstitutional. He said the law did not require sheriffs to process concealed weapons permits without compensation, because the $100 application fee would more than cover the sheriffs' costs.

He also ruled that the law did not exceed the legislature's power to ensure the peace and safety of the people.

Ohmer also rejected arguments that the 1999 referendum prohibited the legislature from enacting the new law. By electing legislators, the public was included in this year's debate, he ruled.

STLtoday.com (St. Louis Post-Dispatch 10/25/03)

19th century lawyer is big gun in concealed carry battle
BY PETER SHINKLE

As attorneys wrangle over the constitutionality of Missouri's new concealed
weapons law, a figure from a turbulent era in the 19th century is casting his
shadow through a St. Louis courtroom.

What Thomas T. Gantt said - and what he meant - as key member of a committee
that helped draft the 1875 revision of the state constitution is at the crux of
a trial court dispute certain to end up with the Missouri Supreme Court.

That version of the constitution added a provision to the right of citizens to
bear arms, saying "this shall not justify the wearing of concealed weapons."

Records of the day show that Gantt, a prominent lawyer who once helped quell
bloody riots in the streets of St. Louis, had a strong opinion in the matter.
"It is a practice which cannot be too severely condemned," he said. "It is a
practice fraught with the most incalculable evil."

But do the words in the constitution mean that the Legislature is
prohibited from authorizing people to carry concealed weapons, which it did
earlier this year over Gov. Bob Holden's veto?

Attorney General Jay Nixon's office, the National Rifle Association and others
supporting the statute say the Legislature not only has such authority but also
has used it repeatedly to allow hidden guns on police, prison wardens, parole
officers and judges.

St. Louis Circuit Court Judge Steven Ohmer ruled Oct. 10 that the challenge to
the law was likely to succeed and issued a preliminary injunction. Once he
rules on a permanent injunction, the losing side is expected to take its case
to the state's high court.

A legal puzzle

As the dispute moves forward, Gantt's comments and the language of the
constitution he helped to draft are key pieces in a complex legal puzzle.

For all the rancor now, the original constitutional provision apparently
provoked little debate.

On May 13, 1875, Gantt, then an attorney in private practice, reported on the
committee's draft of a bill of rights and preamble. He introduced the section
reaffirming a citizen's right "to bear arms when he is summoned legally or
under authority of law to aid the civil processes or defend the state."

Gantt said, "There will be no difference of opinion I think on that subject;
but then the declaration is distinctly made that nothing contained in this
provision shall sanction or justify the wearing of concealed weapons."

He noted that in at least one other state, its constitution's right to bear
arms had led to a conclusion that its legislature could not make concealed
weapons illegal.

"The wearing of concealed weapons is a practice which I presume meets with the
general reprobation of all thinking men," Gantt continued, speaking at a time
when infamous outlaw Jesse James was terrorizing Missouri.

His comments are recounted in the 12-volume Debates of the Missouri
Constitutional Convention of 1875, which lawyers said appears to reflect no
significant debate on the issue.

On May 25, 1875, the amendment was adopted without further discussion of
concealed weapons. A year earlier, the Legislature had passed a law making them
illegal anyway.

Differences over intent

Richard Miller, an attorney for those trying to block the new law, said in
court Thursday that the record of the debates showed that framers of the
constitution did not mean for the Legislature to have authority to legalize
concealed weapons.

"The intent is absolutely clear," he said.

"Don't you think if they intended for the Legislature to have the right to
allow concealed carry, they would have at least mentioned it? There is no
mention," he said.

But in arguing in support of the statute, Alana Barragan-Scott, an assistant
attorney general, said Gantt's comments don't prevent lawmakers from taking
action. "The power to regulate had been reserved to the Legislature," she
insisted.

Attorneys attacking the law say the authority for law officers to carry
concealed guns comes from the police powers of the state. But opposing lawyers
say that if the constitution bans them, not even police can wear them.

"The door is open to the Legislature, or it's shut," Michael Minton, attorney
for the National Rifle Association, told Ohmer in arguments Thursday. If the
plaintiffs are right, Minton said, law officers carrying concealed weapons "had
better take those guns off today."

A concerned lawyer

Whatever Gantt intended, there is little question that he was concerned about
the city of St. Louis and the violence it sometimes endured.

Gantt was born in Washington in 1814. He enrolled in the U.S. Military Academy
in 1831, but left at the end of his second year after a disabling injury to his
right leg.

After studying law and moving to St. Louis, he was appointed by President James
Polk as the U.S. attorney here in 1845. Gantt won acclaim for helping victims
and improving sanitation during the cholera epidemic that killed 6,000 people
in the city in 1849.

In 1854, he was serving as city counselor when the Know-Nothings, members of a
secret society that inveighed against Catholics and foreigners, rioted and
attacked Irish residents.

The mayor, struggling to control the city, called out various volunteer
military forces, including the German Pioneer Corps and the Continental
Rangers, but the riot continued for two days. Gantt was captain of a volunteer
force that helped quell the riot. Ten people died and 30 were wounded,
historical accounts say.

The Know-Nothing riot led Gantt to write a law to "prevent riots and breaches
of the peace," according to the Encyclopedia of the History of St. Louis of
1899. The book describes him in glowing terms, saying, "To courage absolutely
fearless was united the gentleness of a most charitable nature."

As a national debate over slavery intensified, Gantt opposed secession, then
served in the Union Army as a judge under Gen. George McClellan.

After the war, he was in private law practice and helped found the Bar
Association of St. Louis. In 1875, he was elected a delegate to the
Constitutional Convention.

There, Gantt spoke in favor of limiting police powers. Introducing a proposed
revision of the state's bill of rights, Gantt warned that the city charter of
St. Louis contained a provision allowing police at any time to enter people's
homes. That was something that "ought to be impossible," he said.

The new constitution created the St. Louis Court of Appeals, the state's first
appellate court, and the governor named Gantt as its first presiding judge.

Now, 114 years after his death, opponents of the concealed weapons law are
lionizing Gantt, while supporters are dismissing his views.

Gannt's concern of "incalculable evil" is unsupported, said Richard Gardiner,
an attorney for the National Rifle Association. "A law-abiding person should be
able to carry a concealed weapon to protect himself."

Catherine Tierney, Steve Bolhafner, Pamela Barnes and Matthew Fernandes of
the Post-Dispatch News Research Department contributed to this report.

Reporter Peter Shinkle:
E-mail: pshinkle@post-dispatch.com
Phone: 314-621-5804

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