State v. Clay, SC 94954

• Decision Date: 09 February 2016
• Docket Number: No. SC 94954,SC 94954
• Citation: 481 S.W.3d 531
• Parties: State of Missouri, Appellant, v. Pierre Clay, Respondent.
• Court: Missouri Supreme Court

481 S.W.3d 531

State of Missouri, Appellant,

v.Pierre Clay, Respondent.

No. SC 94954

Supreme Court of Missouri, en banc .

Opinion issued February 9, 2016

The state was represented by Veronica Harwin and Aaron Levinson of the St. Louis circuit attorney's office in St. Louis, (314) 622–4941.

Clay was represented by David E. Roland of the Freedom Center of Missouri in Mexico, (314) 604–6621, and Nick A. Zotos, an attorney in St. Louis, (314) 534–1797.

The city of St. Louis was represented by Winston E. Calvert, Erin McGowan and Matthew S. Dionne of the St. Louis city counselor's office in St. Louis, (314) 622–3361.

The St. Louis Regional Chamber was represented by J. Bennett Clark, Lee Marshall, Jason Meyer and Mary Longenbaker of Bryan Cave LLP in St. Louis, (314) 259–2000, and Jason R. Hall of the regional chamber in St. Louis, (314) 444–1175.

The St. Louis archdiocese was represented by Thomas M. Buckley of St. Louis, (314) 792–7075.

The Demetrious Johnson Charitable Foundation was represented by Douglas P. Dowd and Lia Obata Dowd of Dowd & Dowd PC in St. Louis, (314) 621–2500.

SSM Health was represented by J. Andrew Walkup of St. Louis, (314) 994–7800.

The American Civil Liberties Union of Missouri Foundation was represented by Anthony E. Rothert and Jessie Steffan of the ACLU in St. Louis, (314) 652–3114, and Gillian R. Wilcox of the ACLU in Kansas City, (816) 470–9933.

Laura Denvir Stith, Judge

The State appeals the trial court's holding that the right to bear arms set out in article I, section 23 of the Missouri Constitution is violated by section 571.070.1,¹ which prohibits nonviolent felons from possessing firearms. The trial court based its ruling on the adoption of Amendment 5 in August 2014, which added language to article I, section 23 requiring, inter alia, strict scrutiny of laws restricting the right to bear arms as set out in section 23 and further declaring that "nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the right of convicted violent felons [to bear arms]...." The trial court erred in construing this language to bar the legislature from adopting laws regulating the possession of arms by nonviolent felons.

The legislature has the authority to adopt laws, except when expressly prohibited by the constitution, and section 23 is silent as to the right of nonviolent felons to possess firearms. The explicit statement in section 23 that laws regulating the right to bear arms are subject to strict scrutiny has no impact on this ruling because, as this Court recently noted in State v. Merritt , 467 S.W.3d 808 (Mo. banc 2015) ; State v. McCoy , 468 S.W.3d 892 (Mo. banc 2015) ; and Dotson v. Kander , 464 S.W.3d 190 (Mo. banc 2015), it always has applied strict scrutiny to laws regulating the right to bear arms. The circuit court's judgment is reversed, and the case is remanded.

I. FACTUAL AND PROCEDURAL HISTORY

Pierre Clay was stopped on January 26, 2015, for a traffic violation and found to possess a revolver. Police ran his record and arrested him after discovering he had a prior felony conviction. On February 25, 2015, Mr. Clay was charged by information with possession of marijuana in violation of section 195.202 and with unlawful possession of a firearm in violation of section 571.070.1(1). Section 571.070.1 prohibits persons previously convicted of a felony from possessing firearms, stating:

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[.]

§ 571.070.1(1) .

Mr. Clay does not deny that he comes within the scope of section 571.070.1 because he is a prior offender, having been convicted previously of the nonviolent felony of unlawful use of a weapon. But he moved to dismiss the unlawful possession charge, claiming that article I, section 23 of the Missouri Constitution prohibits the legislature from criminalizing his possession of a firearm. The trial court agreed and dismissed the firearms possession count prior to issuance of this Court's opinions in Merritt , 467 S.W.3d 808, and McCoy, 468 S.W.3d 892. The State appeals. Because this appeal involves the validity of a state statute, this Court has exclusive appellate jurisdiction pursuant to article V, section 3 of the Missouri Constitution.

II. STANDARD OF REVIEW

Rule 24.04(b)(1) permits a criminal defendant to raise "[a]ny defense or objection which is capable of determination without trial of the general issue ... before trial by motion." "Whether a statute is constitutional is reviewed de novo. Statutes are presumed constitutional and will be found unconstitutional only if they clearly contravene a constitutional provision." State v. Vaughn , 366 S.W.3d 513, 517 (Mo. banc 2012) (internal citations omitted).

III. ARTICLE I, SECTION 23, AS AMENDED, DOES NOT BAR REGULATION OF FIREARMS BY NONVIOLENT FELONS

Mr. Clay claims that article I, section 23, as amended in August 2014, bars the legislature from regulating the possession of firearms by nonviolent felons. This Court disagrees. The people of Missouri adopted Amendment 5 on August 5, 2014. Prior to that amendment, article I, section 23 of the Missouri Constitution stated:

That the right of every citizen to keep and bear arms, in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.

Id. Following the adoption of Amendment 5, article I, section 23 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; but this shall not justify the wearing of concealed weapons. 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 adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity.

Art. I, sec. 23 (new language in bold italics, deleted language struck through).

A. The Pre–Amendment 5 Version of Article I, Section 23 Permitted Regulation of Firearms' Possession by Felons

This Court recently interpreted article I, section 23 in two cases: Merritt , 467 S.W.3d 808, and McCoy , 468 S.W.3d 892. The defendants in both of those cases argued, as Mr. Clay argues here, that in authorizing the legislature to regulate the possession of firearms by violent felons, Amendment 5 must be read to prohibit the legislature from regulating the possession of firearms by nonviolent felons. This Court did not reach that issue in Merritt or McCoy because the crimes with which the defendants in those cases were charged occurred before the adoption of Amendment 5. This Court rejected those defendants' argument that Amendment 5 applied retroactively and held that, to the contrary, the legislature's authority to regulate firearms must be determined under the version of article I, section 23 that was in effect at the time of their crimes. Merritt, 467 S.W.3d at 810, 812 ; McCoy , 468 S.W.3d at 893–95.²

In both Merritt and McCoy, this Court further held that because cases such as District of Columbia v. Heller , 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and McDonald v. City of Chicago, Illinois , 561 U.S. 742, 791, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010), have recognized that the right to bear arms is a fundamental right, strict scrutiny must be used in analyzing the constitutionality of any regulation of that right. Merritt , 467 S.W.3d at 812–13 ; McCoy , 468 S.W.3d at 895–96.³ These cases also recognize that strict scrutiny is not a monolithic concept. Rather, "the application of strict scrutiny depends on context, including the controlling facts, the reasons advanced by the government, relevant differences, and the fundamental right involved." Merritt , 467 S.W.3d at 813 ; McCoy 468 S.W.3d at 897. Or, as Justice O'Connor noted in Grutter v. Bollinger , 539 U.S. 306, 327, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003), "Context matters ... strict scrutiny is designed to provide a framework for carefully examining the importance and the sincerity of the reasons advanced by the governmental decision maker...."

While most commonly courts apply strict scrutiny by determining whether a law was narrowly tailored to achieve a compelling state interest, in other cases, depending on the extent the regulation burdens a particular right, the courts look to whether a regulation imposes "reasonable, non-discriminatory restrictions" that serve "the State's important regulatory interests" or whether the encroachment is "significant."⁴ Similarly, Heller looked at the nature of the regulation and the degree of infringement it imposed on the second amendment. 554 U.S. at 628–29, 128 S.Ct. 2783. Heller found the absolute handgun ban in the case before it was a "severe restriction" that would be unconstitutional "[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights[.]" Id.

Most important here, while Heller declined to expressly determine which scrutiny level and test applied, it stated that whatever the level, its ruling "did not cast doubt on such longstanding prohibitions on the possession of firearms by felons and the mentally ill." Heller , 554 U.S. at 626–27, 128 S.Ct. 2783 ; accord, McDonald , 561 U.S. at 786, 130...