Background 

Missouri has preempted all local laws that regulate the use of firearms, leaving no room for local government to adopt ordinances. Does that mean local government officials are just observers? No.

The battle over the right to possess and bear arms and the right to regulate the possession or the use of arms is of profound interest to local government officials since police officers, clerks, bailiffs and other local government officials are charged, at the ground level, with protecting the public, particularly at public meetings, buildings and other public places. Local government officials are no strangers to violence. Consider the tragedy of the Kirkwood City Council meeting where a disgruntled gun-toting citizen killed six persons including the mayor, two council members and several police officers. Other more recent examples abound.

Can felons possess arms?

Some citizens claim that the new constitutional amendment to possess and bear arms, adopted by the voters on August 5, 2014 (Amendment), gave citizens an unfettered constitutional right to possess and bear arms, in all circumstances. The centerpiece of the Amendment was the statement, in the body of the Amendment (not the ballot title), that laws that restrict the right to own or possess firearms, are to be reviewed by applying the “strict scrutiny”  to the law  that limited the right to possess and bear arms. When the phrase “strict scrutiny” is used most municipal lawyers hearts skip a couple of beats because its application is usually a sure death sentence,  particulary if the law involves  First Amendment, free speech cases.

This question soon arrived at the Missouri Supreme Court’s steps, after a trial court dismissed a case against a felon who was charged with violating the felon-in-possession statute in State of Missouri v. Merritt. The State appealed the trial court’s decision to the Missouri Supreme Court. The principal issue in State of Missouri v. Merritt, was whether or not the felon-in-possession statute violated Merritt’s right to possess or bear arms if the strict scrutiny standard was applied to the statute to determine if it was constitutional

History

But first before reviewing how the court applied strict scrutiny in State of Missouri v. Merritt, a little bit of history is useful. This story, in my mind, is one of the most interesting judicial juggling acts ever performed by the Missouri Supreme Court.

The Missouri legislature started the ball rolling by bungling the job of writing a ballot title that was not fair, as required by the Missouri Constitution. The legislature clearly intended to entice voters to vote for the Amendment without communicating to the voters any substantive change by writing an apple pie and ice cream ballot title. The ballot title for the Amendment stated that the right to keep and bear arms is an “inalienable right” and “shall not be questioned.” What does this mean? Apparently nothing, as we shall find out.

Initially the Missouri Supreme Court ducked the fairness of the ballot title issue by holding in Dotson I, that the pre-election challenge to the ballot title was moot because the voters had already approved the Amendment. This decision was pretty much a standard response, since the courts have forever used mootness as a way to end litigation. Seemingly Dotson I, should have ended all challenges to the constitutionality of the Amendment.

Still doubts lingered. What made Dotson I, particularly disconcerting was a question of basic judicial fairness because a challenge to a ballot title is no small matter, potentially leaving citizens with a bitter taste about the objectivity of our judicial system. The apple pie and ice cream ballot title written by the legislature was unfair and meaningless to a trained observer, since it completely failed to communicate any substantive change to the Constitution. Compounding this perception, was a statute limiting the time to challenge a ballot title making it impossible to obtain a timely decision about the fairness of the ballot title, prior to the election in August of 2014. So where was the justice?

Despite the holding in Dotson I, that the appeal was moot, the opponents of the Amendment were not deterred. They filed a postelection challenge in Kander v. Dotson, (Dotson II), which was decided in June of 2015. To the complete surprise of everyone, the Court held in Dotson II, for the first time, that postelection challenges to ballot titles were permitted.

The decision in Dotson II was totally unexpected because challenges to ballot titles after voters have already approved a constitutional amendment is fraught with difficulties. After all it is it is potentially the first step to invalidation of an election. Disapproval of a ballot title after the voters have approved the amendment    has enormous political consequences, particularly when 60% of the voters approved the Amendment. Think “Hell has no fury greater than scorned voters.” Remember the citizen outrage when the legislature   repealed   the “puppy mill”  prohibition that was  approved by the referendum.

Faced with this dilemma, the Court came up with an ingenious solution in Dotson II. The Missouri Supreme Court held, the Amendment did not change the law.

“If the constitutional amendment had changed the level of scrutiny under Article I, Section 23 to strict scrutiny, the Court might have considered the ballot summary at issue in Dotson unfair or insufficient.  But this Court held that strict scrutiny would have applied under the prior version of Article I, Section 23 in the time frame after McDonald was decided, irrespective of the amendment.”

The Felon-In-Possession Law Survives Strict Scrutiny 

Now to the Court’s application of strict scrutiny, to the felon in possession law in State of Missouri v. Merritt.

The Court made it absolutely clear that what constituted strict scrutiny was a matter for the courts not the legislature.  Strict scrutiny is applied on a case-by-case basis based on the facts and the public policy that is involved. There: “…is no settled analysis as to how strict scrutiny applies affecting the right to bear arms, which has historically been interpreted to have accepted limitations.” “Application of strict scrutiny depends on context including the controlling facts, the reasons advanced by the government, relevant differences and the fundamental right involved.”

In addition laws regulating the right to bear arms are not “presumptively invalid.” The United States Supreme Court decisions in Heller and McDonald did not 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.”

The Court stated that it would interpret the Missouri Constitutional right to bear arms the same as the United States Supreme Court.

The test applied by the Court to determine if the law was whether or not it was “narrowly tailored to achieve a compelling interest.” The felon-in-possession law met that test because it was narrowly tailored to achieve a compelling governmental interest.  The State had a compelling interest in ensuring public safety and reducing firearm-related crime and “protecting the public from crime.”  Therefore, the Court concluded that the felon-in-possession law was “…sufficiently narrowly tailored to achieve the compelling interest of protecting the public from firearm related crime.” 

In order to  make it clear  that the Court controled  this issue,  it issued an admonition, stating that the decision to not hold the election invalid because of the defective ballot title was part of the “holding” of the Court.  Surely this was intended to make sure my later courts would not engage in revisionism.

Conclusions

There was something for everyone, particularly the court. The proponents of the Amendment got an opinion that embedded  the strict scrutiny standard into the right to bear arms provision in the Missouri Constitution. The opponents got a watered-down version of what constitutes strict scrutiny. The Court ended up with control over what constitutes “strict scrutiny” freezing out the legislature from passing legislation to define this term,  thereby leaving  the court lots of room to decide these issues on a case-by-case basis. Plus, interpretations of the Missouri Constitution will simply follow the lead taken by the United States Supreme Court making it easier  to predict the outcome.

This amazing feat  of legal jujitsu was well accepted as everyone breathed a collective sigh of relief.

Howard Wright© 2016