Supreme Court hears new challenge to felon gun ban

Ex-convict went on to deal in firearms and found ammunition manufacturer

By Scott Lauck
BridgeTower Media Newswires

ST. LOUIS — The Missouri Supreme Court has had little difficulty in the past denying felons the right to possess firearms. Now the court is considering the question again — this time involving a self-described former “hippie” turned “pillar of his community.”

Jack B. Alpert pleaded guilty to a state charge of drug possession in 1970 and a similar federal charge in 1975. Though he served some time in prison, he also earned college and graduate degrees and started a computer company.

Federal law generally prohibits felons from possessing firearms or ammunition, but the U.S. Attorney General can make exceptions for those who “will not be likely to act in a manner dangerous to public safety.” In 1983, Alpert applied for and was granted such an exception. He later obtained a federal license to deal firearms and went on to found the Missouri Bullet Company, an ammunition manufacturer located in Kingsville.

At the time that Alpert obtained the exemption, Missouri’s felon-in-possession statute was much narrower than its federal counterpart. It barred only those convicted of a “dangerous felony” from possessing a concealable firearm — meaning that someone like Alpert, convicted only of nonviolent felonies, maintained his state-law gun rights.

In 2008, however, lawmakers removed the words “dangerous” and “concealable,” which meant Alpert could no longer possess guns at all and was unable to renew his federal firearms license. The business itself has a separate license and continues to operate, but Alpert himself cannot take part in any ammunition testing, much less go hunting or keep a weapon for self-defense.

Now 65 and, according to briefs, dying of renal cancer, Alpert’s attorney, Ron Ribaudo of The Ribaudo Law Firm in Ballwin, argued that he is no more dangerous than a typical law-abiding person and that he ought to have his gun rights restored.

In 2015, Alpert filed declaratory judgment action in Johnson County Circuit Court, arguing that Missouri’s felon-in-possession statute violates the Missouri and U.S. constitutions, at least as applied to him. As Ribaudo put it in a brief, “For 40-plus years since his last drug offense, Mr. Alpert has hewed to the straight and narrow, transforming himself from a peaceful hippie who made a few mistakes into one of the finest citizens of Johnson County.”

The trial court, however, denied the petition, prompting an appeal to the Supreme Court that was heard on Wednesday. The case gives the judges a chance to revisit an issue they have ruled on repeatedly in recent years.

In 2014, Missouri voters amended the section of the state constitution that protects gun rights. Among other things, the new version declares the right to bear arms is “unalienable” and requires courts to apply strict scrutiny to gun laws. It also specifies that the legislature can pass laws limiting the rights of “convicted violent felons” but is silent about the effect that nonviolent felonies have on gun rights.

To date, the Supreme Court has interpreted that amendment narrowly and has roundly decided against a raft of felon-in-possession cases.

Alpert nonetheless argued that his case was different. For one thing, he argues that Missouri’s felon-in-possession law runs afoul of both of the Missouri Constitution and the Second Amendment of the U.S. Constitution. The earlier cases had focused on the state constitutional claims, so the effect of the Second Amendment itself wasn’t decided.

For another, Alpert in his brief characterized the defendants in the earlier cases as “habitual criminals who cannot be trusted with firearms” and who argued for the broad proposition that all nonviolent convicted felons have a constitutional right to bear arms. Alpert contrasted that with his lengthy period of good behavior and his relatively advanced age, arguing that he was very unlikely to be dangerous.

Wednesday’s arguments came just days after the mass shooting in Las Vegas that killed 59 people and wounded more than 500. The shooting was allegedly carried out by a 64-year-old man with no felony record who had 23 firearms in his hotel room.

Neither the judges nor the attorneys mentioned the Las Vegas shooting. Ribaudo, however, did say that Alpert still would be subject to “reasonable” regulations on firearms.

Wednesday’s argument focused on whether it was the proper time to hear Alpert’s challenge at all. Gregory M. Goodwin, an assistant attorney general argued that because Alpert hasn’t been charged with being a felon in possession of a firearm, his constitutional claim isn’t ripe and should be dismissed. If he were ever charged, Goodwin said, he could raise his claims in the criminal case.

“Someone can’t vindicate their rights unless there is first a violation of those rights,” Goodwin said.

Ribaudo argued that it would be “perverse” to encourage Alpert to obtain a gun and risk a felony conviction so that he could seek to vindicate his constitutional rights.

Judge Laura Denvir Stith noted the “irony” in the state’s position, and Chief Justice Zel Fischer was incredulous of Goodwin’s claim that future developments in the case, such as the possibility of a pardon from the governor, might make the case moot.
“Would you think the court would dodge an Eighth Amendment claim on the fact that the governor could commute a sentence?” Fischer asked.

Goodwin acknowledged that Alpert’s case was “difficult” but urged the court to find that felons are “categorically removed from Second Amendment protection.”

The case is Alpert v. State of Missouri, SC96024.