Title: Missed the Mark: The Supreme Court of Missouri’s Faulty Application of Strict Scrutiny to the Right to Bear Arms
Abstract: State v. Clay, 481 S.W.3d 531 (Mo. 2016) (en banc) I. INTRODUCTION The discussion of the scope and potential limitations of the Second Amendment has been at the forefront of the United States's political debate in recent years. Prior to 2008, Second Amendment jurisprudence was unclear as to what could constitute a lawful restriction of an individual's right to bear (1) In 2008, the U.S. Supreme Court, in District of Columbia v. Heller, affirmed the Second Amendment guarantee of the right to bear arms, holding that a Washington, D.C., law that prohibited possessing handguns in the home was unconstitutional. (2) The Court further indicated that nothing in the opinion be taken to 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. (3) Two years later, in McDonald v. City of Chicago, the U.S. Supreme Court held that the right to bear arms was fundamental and applied to the states. (4) While Heller and McDonald made clear that the Second Amendment was a limited fundamental right, neither decision defined the applicable constitutional standard for analyzing laws restricting the right to bear (5) In 2014, Missouri amended its constitution to include Amendment 5, a provision that requires the application of strict scrutiny to any law limiting the right to bear (6) In a sequence of cases, the last of which was State v. Clay, the Supreme Court of Missouri determined that section 571.070.1(1), a law that prohibited felons from possessing firearms, survived strict scrutiny. (7) In so holding, the Supreme Court of Missouri relied on the Heller dicta, even though the Heller Court did not apply the strict scrutiny standard. (8) This Note argues the Supreme Court of Missouri erred in its application of strict scrutiny. While it is difficult to measure the efficacy of gun control laws, it is evident that categorically and permanently banning felons from possessing firearms is not the least restrictive means of achieving the government's safety interest. II. FACTS AND HOLDING On January 26, 2015, Pierre Clay was stopped in St. Louis, Missouri, for a traffic violation and found possessing a revolver. (9) The police discovered he had a prior felony conviction and arrested him. (10) On February 25, 2015, Clay was charged by information with possession of marijuana under section 195.202 and unlawful possession of a firearm under section 571.070.1(1). (11) Section 571.070.1(1) prohibits previously convicted felons from possessing firearms. (12) Clay moved to dismiss the unlawful possession charge, claiming that section 571.070.1(1) was unconstitutional under article I, section 23 of the Missouri Constitution, after Amendment 5 was added on August 5, 2014. (13) Clay claimed that article I, section 23, as amended, precluded the legislature from regulating the possession of firearms by nonviolent felons. (14) He argued that the Missouri Constitution's explicit authorization of the legislature to regulate the possession of firearms by violent felons should be read to preclude the legislature from regulating the possession of firearms by nonviolent felons. (15) Further, Clay asserted that Amendment 5 substantially changed article I, section 23. (16) Therefore, he argued the precedent that deemed section 571.070.1(1) constitutional under the pre-Amendment 5 version of article I, section 23 should not be applied to his case. (17) The circuit court granted Clay's motion to dismiss the unlawful possession charge, determining that Amendment 5 barred the legislature from regulating the possession of firearms by nonviolent felons. (18) The State appealed. (19) The Supreme Court of Missouri held that Amendment 5 did not substantially alter article I, section 23 of the Missouri Constitution, and, therefore, the court's precedent which held that section 571. …
Publication Year: 2017
Publication Date: 2017-03-22
Language: en
Type: article
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Cited By Count: 1
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