By Scott Lauck
The Daily Record Newswire
ST. LOUIS, MO — The Missouri Supreme Court is already being asked to consider the effects of the state constitution’s newly strengthened gun-rights provision, even as opponents of the amendment are urging the court to declare the vote invalid.
In August, voters approved the amendment, which declares the right to bear arms is “unalienable” and requires courts to apply strict scrutiny to gun laws.
Shortly before the vote, a group of challengers, including St. Louis Police Chief Samuel Dotson, argued that the amendment’s ballot summary was insufficient. But with less than two weeks before the election, the Supreme Court said it was too late to rule on the alleged deficiencies. However, the court said the challengers would be free to file an election contest “should the proposal be adopted” — which it was, by 61 percent of the vote.
On Sept. 24, the challengers accepted the court’s suggestion and filed suits in Cole County Circuit Court and the Supreme Court, alleging that the election results should be set aside.
“The unfair and insufficient ballot title was an election irregularity sufficient to cast doubt on the true results of the election on Amendment 5 but for such irregularity,” the suit reads.
The legal system, however, isn’t waiting around. According to media reports, the amendment has already affected criminal charges in circuits around the state. One case is already pending in the Supreme Court.
Marcus Merritt was originally scheduled to appear before the high court Sept. 18 to argue against his felon-in-possession charges. Two days before arguments, however, the attorney general’s office asked for a delay, saying “further briefing is necessary to resolve this case in light of this recent amendment.”
The Supreme Court appears to be moving quickly to resolve the validity of the amendment. A responsive brief from the attorney general’s office was due Friday. In contrast, the new briefing in Merritt’s case will continue into November. A new argument date hasn’t been set.
Merritt was convicted of federal drug charges in 1986. At the time, Missouri law only barred those convicted of a “dangerous felony” from possessing a concealable firearm. Lawmakers changed the law in 2008 so that anyone convicted of any kind of felony, violent or nonviolent, couldn’t have any kind of gun.
In 2012, Merritt was indicted in St. Louis Circuit Court with possessing heroin and drug paraphernalia. He was also found to have a .44 magnum revolver, a 12-gauge shotgun and a .22 caliber rifle. Based on his prior federal conviction, he was charged with three counts of felony firearm possession. Merritt pleaded guilty to the drug counts, but Judge John F. Garvey Jr. dismissed the gun charges.
Merritt argues that a lifetime ban on nonviolent felons owning guns goes beyond the legitimate police powers of the state. But following the passage of the amendment, the framing of the issue has shifted.
In his original briefs, Merritt’s public defender, Matthew Huckeby, argued that the state could place a “time, place, and manner restriction” on firearms, but the current law went too far.
“Here, there is no substantial relationship between banning all convicted felons under all circumstances from possessing firearms for life and protecting the public health, safety, morals or welfare,” he wrote.
Assistant attorney general Jennifer Rodewald, however, argued that the Legislature’s wide ban made sense.
“Given the fact that felons have already shown a willingness to violate the law, keeping firearms out of their hands bears a substantial relationship to the government’s function in protecting public safety,” she wrote.
Both attorneys, however, were arguing under a lesser standard than the state constitution now demands. Among its major changes, the new amendment requires courts to review gun laws with “strict scrutiny,” a tough legal standard that requires the government to show that it has a compelling interest in the regulation and that the law infringes on the right as little as possible.
The switch to that standard was not outlined in the ballot summary, which is part of the reason its opponents argue (for the second time) that the description insufficiently described the major legal changes it made. The state has previously responded that the legal standard for gun laws was too obscure for most voters.
Although the procedure has the apparent blessing of the Supreme Court, such a post-election challenge of a constitutional amendment is unprecedented, said Chuck Hatfield, an attorney for the challengers. As such, it was filed in an unusual way. A state statute in effect since 1979 requires contests of elections on, among other things, constitutional amendments to be heard directly in the Supreme Court. Hatfield, however, said he’s not sure such a jurisdictional move is constitutional, so just to be safe he filed the companion suit in Cole County — though it would almost certainly wind up in the Supreme Court eventually.
Pre-election challenges to ballot summaries are commonplace these days. It’s unclear whether the gun-rights case will prompt opponents of future amendments to file similar attacks after the voters have had their say — in essence, transforming arguments that voters might be duped by unclear language into arguments that voters were duped into doing something they didn’t mean.
Hatfield, of Stinson Leonard Street in Jefferson City, said such challenges are appropriate.
“When we’re talking about doing amendments particularly to the Missouri Constitution by a vote of the people, I think the courts ought to look long and hard at those,” he said. “I actually don’t think the courts have been aggressive enough in reviewing these things.”
Nanci Gonder, a spokeswoman for the attorney general’s office, declined to comment on the cases. Sen. Kurt Schaefer, R-Columbia, who sponsored the resolution that put the gun-rights issue on the ballot and has helped defend it in court, didn’t return a call seeking comment.
The election challenges pending in Cole County and the Supreme Court are Dotson v. Kander, 14AC-CC00501 and SC94482. The gun case is State v. Merritt, SC94096.
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