Alpert v. State, 543 S.W.3d 589

Background

Jack Alpert, a nonviolent felon with state and federal felony drug convictions, sought a pre-enforcement declaratory judgment that Mo. Rev. Stat. § 571.070.1(1) (felon-in-possession ban) is unconstitutional as applied to him under Article I, § 23 of the Missouri Constitution and the Second Amendment.
Alpert asserted narrow-tailoring and as-applied objections: his convictions were nonviolent and remote, he has behaved peaceably since, he has federal rights restored, and the statute is overbroad and underinclusive.
The trial court denied relief; the State defended enforcement and relied on precedent upholding felon prohibitions under strict scrutiny of Missouri law and treating felon bans as presumptively lawful under federal law.
The Missouri Supreme Court majority affirmed, rejecting Alpert’s Article I, § 23 and Second Amendment claims based on controlling state precedent that applies strict scrutiny but upholds § 571.070 as narrowly tailored to protect public safety.
The court distinguished Binderup/Barton frameworks relied on by Alpert, concluding his felony convictions place him within the historically disqualified class and that his as-applied challenge failed.
Separate dissents argued the case was unripe for declaratory relief and that Alpert’s appellate brief preserved defective points in violation of Rule 84.04(d).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 571.070 violates Mo. Const. art. I, § 23 as applied to Alpert	§ 571.070 is not narrowly tailored; applies to nonviolent felons, has no time limit, and burdens peaceful self-defense	Legislature may restrict felon possession; prior Missouri cases applied strict scrutiny and upheld statute as narrowly tailored	Denied. Court reaffirmed Merritt/McCoy/Clay: § 571.070 survives strict scrutiny under Article I, § 23
Whether § 571.070 violates the Second Amendment as applied	Alpert invoked third‑circuit two‑step/as‑applied tests (Barton/Binderup) to show he is not like historically barred felons	State relied on Heller’s “presumptively lawful” felon ban and Missouri precedent applying strict scrutiny but sustaining the law	Denied. Alpert’s felony convictions place him in the historically disqualified class; his as‑applied claim fails
Whether Binderup/Barton framework requires different result here	Alpert: Binderup allows individualized showing (rehabilitation, time since offense) that could restore rights	State: Binderup involved misdemeanors and is distinguishable; serious felonies that required prison remain within barred class	Court: Even if Binderup framework adopted, Alpert’s felony record distinguishes him from Binderup challengers; claim fails
Justiciability / ripeness and briefing defects	Alpert sought pre‑enforcement declaratory relief as a present controversy	State and dissenters argued no credible threat of prosecution, adequate remedy at law, and briefing violations	Majority reached merits and affirmed; dissents would dismiss as unripe and for briefing rule violations

Key Cases Cited

District of Columbia v. Heller, 554 U.S. 570 (2008) (recognizes individual right to bear arms; notes longstanding prohibitions on felons are presumptively lawful)
McDonald v. City of Chicago, 561 U.S. 742 (2010) (incorporates Second Amendment against the states)
State v. Clay, 481 S.W.3d 531 (Mo. banc 2016) (upheld § 571.070 against Article I, § 23 challenge; applied strict scrutiny)
State v. Merritt, 467 S.W.3d 808 (Mo. banc 2015) (applied strict scrutiny and upheld § 571.070)
State v. McCoy, 468 S.W.3d 892 (Mo. banc 2015) (upheld § 571.070 under strict scrutiny)
Binderup v. Att’y Gen., 836 F.3d 336 (3d Cir. 2016) (as‑applied framework for Second Amendment challenges involving non‑serious offenses)
United States v. Barton, 633 F.3d 168 (3d Cir. 2011) (articulated factors for as‑applied felon‑possession challenges)
United States v. Marzzarella, 614 F.3d 85 (3d Cir. 2010) (two‑step framework for Second Amendment challenges)
United States v. Bena, 664 F.3d 1180 (8th Cir. 2011) (discussion of historical and statutory prohibition on felons possessing firearms)