STATE of Missouri, Appellant, v. Marcus MERRITT, Respondent.
No. SC 94096
Supreme Court of Missouri, en banc.
August 18, 2015
467 S.W.3d 808
The state was represented by Solicitor General James R. Layton and
Merritt was represented by Matthew W. Huckeby of the public defender‘s office in St. Louis, (314) 340-7662.
Senator Kurt U. Schaefer, an attorney in Jefferson City, (573) 761-5008, filed a brief as a friend of the Court and represented himself.
PER CURIAM
The State appeals the circuit court‘s judgment that Missouri‘s “felon-in-possession law” is unconstitutional. Marcus Merritt was charged with three counts of unlawful possession of a firearm,
While the appeal was pending, the Missouri Constitution‘s right to bear arms provision, article I, section 23, was amended to state that courts must apply “strict scrutiny” to laws restricting the right to bear arms. The prior version of article I, section 23 applies in this case because this Court applies the constitution as it was written at the time of the offense. Nevertheless, this Court recently held in Dotson v. Kander that “strict scrutiny would have applied under the Missouri constitution,” regardless of the recent amendment, to constitutional challenges that occurred during the time frame after the Supreme Court of the United States declared the right to bear arms fundamental to our scheme of ordered liberty and held the Second Amendment to the United States
Factual and Procedural History
Merritt was convicted in 1986 of federal felony distribution of phencyclidine (PCP). He was charged in January 2013 with three counts of unlawful possession of a firearm,
Merritt filed a motion to dismiss the indictment, arguing
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.” The circuit court‘s judgment sustaining Merritt‘s motion to dismiss on constitutional grounds is a final judgment from which the State may appeal. State v. Honeycutt, 421 S.W.3d 410, 413 (Mo. banc 2013). This Court has not addressed the standard of review of a judgment sustaining a motion to dismiss a criminal indictment, but civil cases are instructive. “If a trial court fails to state a basis for its dismissal, this Court presumes the dismissal was based on the grounds stated in the motion to dismiss.” Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391 (Mo. banc 2001). “If the dismissal is justified on any ground alleged in the motion, ... the judgment will be affirmed.” Anderson v. Union Elec. Co., 463 S.W.3d 783, 786 (Mo. banc 2015).
This Court has exclusive jurisdiction over this appeal pursuant to article V, section 3 because it involves the constitutional validity of a statute. Rodriguez v. Suzuki Motor Corp., 996 S.W.2d 47, 51 (Mo. banc 1999). “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). Constitutional challenges are issues of law this Court reviews de novo. Estate of Overbey v. Chad Franklin Nat‘l Auto Sales North, LLC, 361 S.W.3d 364, 372 (Mo. banc 2012).
Analysis
The State argues the circuit court erred by dismissing the three counts of unlawful possession of a firearm because
“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.” Section 571.070.1(1). Article I, section 23 was amended as follows while this appeal was pending: 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.
Dotson, 463 S.W.3d at 196. Both parties argue that the new version of article I, section 23 applies retroactively to this case. The State also argues, in the alternative, that the previous version of article I, section 23 applies because it was in effect at the time of McCoy‘s offense and that, regardless,
I. The Prior Version of Article I, Section 23 Applies
The parties claim that the new version of article I, section 23 applies retroactively because this case was not yet final when the amendment went into effect, citing Griffith v. Kentucky, 479 U.S. 314 (1987). In Griffith, the Supreme Court of the United States held “that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.” 479 U.S. at 328. Griffith does not govern the retroactivity of newly enacted state constitutional amendments, only newly stated procedural rules of federal constitutional law.
“The settled rule of construction in this state, applicable alike to the Constitutional and statutory provisions, is that, unless a different intent is evident beyond reasonable question, they are to be construed as having a prospective operation only.” State ex rel. Scott v. Dircks, 211 Mo. 568, 111 S.W. 1, 3 (1908). This Court gives only prospective application to a constitutional amendment unless it finds “a contrary intent that is spelled out in clear, explicit and unequivocal detail so that retrospective application is called for ‘beyond []a[] reasonable question.‘” State ex rel. Hall v. Vaughn, 483 S.W.2d 396, 398-99 (Mo. banc 1972). The amended version of article I, section 23 does not have any text that suggests it was intended to be applied retroactively. Therefore, it applies prospectively only. Hall, 483 S.W.2d at 398-99; Scott, 111 S.W. at 3.
II. Strict Scrutiny Applies Under the Prior Version of Article I, Section 23
This Court recently held, while this case was pending, that strict scrutiny applies under the prior version of article I, section 23 to cases arising in the time frame after McDonald was decided, regardless of the recent amendment. Dotson, 463 S.W.3d at 209 n. 5. Previously, the Supreme Court of the United States held, in District of Columbia v. Heller, that the Second Amendment
Then came the Dotson case, which was filed in this Court and briefed, argued, and decided while Merritt‘s appeal was pending. Dotson was a challenge to the ballot summary of the constitutional amendment. 463 S.W.3d at 193. The challengers argued that the ballot language was inadequate to inform voters that strict scrutiny would apply to laws affecting the right to bear arms under the Missouri Constitution. Id. at 193. This Court held as follows:
Even though [the amendment] set out strict scrutiny as the standard, that standard would already have been applicable to cases where the legislation was challenged based on article I, section 23 of the Missouri Constitution after McDonald v. Chicago, 561 U.S. 742 (2010). Although the Supreme Court of the United States did not announce a level of judicial scrutiny in Heller, it held in McDonald that the right to bear arms is a fundamental right that applies to the states. 561 U.S. at 791. Because this Court reviews laws affecting fundamental rights under the strict scrutiny standard, Etling v. Westport Heating & Cooling Servs., Inc., 92 S.W.3d 771, 774 (Mo. banc 2003), strict scrutiny would have applied under the Missouri constitution had a challenge been made. By declaring the right to bear arms “unalienable” and imposing strict scrutiny, [the amendment] could be understood to be nothing more than a declaration of the law as it would have been declared by this Court after McDonald mandated that the fundamental right to bear arms applied to the states.
Id. at 209 n. 5. This conclusion was necessary to this Court‘s analysis and resolution in Dotson and was, therefore, a holding of the Court. If the constitutional amendment had changed the level of scrutiny under article I, section 23 to strict scrutiny, the Court might have considered the ballot summary at issue in Dotson unfair or insufficient. But this Court held that strict scrutiny would have applied under the prior version of article I, section 23 in the time frame after McDonald was decided, irrespective of the amendment.5
Merritt
III. Section 571.070.1(1) Survives Strict Scrutiny
“[T]here is no settled analysis as to how strict scrutiny applies to laws affecting the fundamental right to bear arms, which has historically been interpreted to have accepted limitations.” Id. at 197. Additionally, 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. See Grutter v. Bollinger, 539 U.S. 306, 327 (2003); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 246 (1995); Adam Winkler, Fatal in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND L. REV. 793, 795-96 (2006).
Accordingly, “that strict scrutiny applies ‘says nothing about the ultimate validity of any particular law; that determination is the job of the court applying’ the standard.” Dotson, 464 S.W.3d at 204 (quoting Adarand, 515 U.S. at 230). “Courts routinely uphold laws when applying strict scrutiny, and they do so in every major area of the law.” Winkler, supra, at 795-96. A study of all published federal court applications of strict scrutiny over a span of 13 years found that laws survived strict scrutiny 30% of the time. Id. Moreover, the same study found courts upheld laws more often in religious liberty cases than in cases involving suspect class discrimination, free speech, freedom of association, and other fundamental rights. Id. at 796-97.
It is clear that laws regulating the right to bear arms are not “presumptively invalid.” Dotson, 464 S.W.3d at 198. In Dotson, this Court recognized that the Supreme Court‘s decisions in Heller and McDonald did not 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.” Id. at 198.
“[S]trict scrutiny is generally satisfied only if the law at issue is ‘narrowly tailored to achieve a compelling interest.‘” Id. at 197. Section 571.070.1(1) is narrowly tailored to achieve a compelling governmental interest. The State has a compelling interest in ensuring public safety and reducing firearm-related crime. See In re Care & Treatment of Norton, 123 S.W.3d 170, 174 (Mo. banc 2003) (“The State has a compelling interest in protecting the public from crime.“). Prohibiting felons from possessing firearms is narrowly tailored to that interest because “[i]t is well-established that felons are more likely to commit violent crimes than are other law abiding citizens.” United States v. Barton, 633 F.3d 168, 175 (3d Cir. 2011). Furthermore, “someone with a felony conviction on his record is more likely than a nonfelon to engage in illegal and violent gun use
As this Court noted in Dotson, decisions of the Supreme Court of Louisiana are persuasive on this issue. 464 S.W.3d at 197. Like Missouri, the people of the State of Louisiana amended their state constitution to clarify that strict scrutiny applies to laws restricting the right to bear arms. Id. The Supreme Court of Louisiana has recently upheld, under strict scrutiny, a law banning persons who have committed certain dangerous and potentially dangerous felonies from possessing firearms or carrying concealed weapons for ten years. State v. Eberhardt, 145 So. 3d 377, 385 (La. 2014). That court found “‘a long history, a substantial consensus, and simple common sense’ to be sufficient evidence for even a strict scrutiny review.” Id.
The Supreme Court of Louisiana also has upheld other types of restrictions under strict scrutiny. These include laws prohibiting the carrying of concealed weapons without a permit and prohibiting minors from possessing handguns in certain circumstances, State in the Interest of J.M., 144 So. 3d 853, 863, 866 (La. 2014), a law banning the possession of a firearm while engaged in drug use and distribution, State v. Webb, 144 So. 3d 971, 979, 983 (La. 2014), and a felon-in-possession law as applied to offenders remaining under the supervision of the Louisiana department of corrections, State v. Draughter, 130 So. 3d 855, 868 (La. 2013). Cf., e.g., United States v. Marzzarella, 614 F.3d 85, 101 (3d Cir. 2010) (holding that a federal law banning possession of a firearm with an altered serial number “would pass muster under either intermediate scrutiny or strict scrutiny“); United States v. Everist, 368 F.3d 517, 519 (5th Cir. 2004) (holding, before Heller was decided, that the federal law banning felons from possessing firearms was “a limited and narrowly tailored exception to the freedom to possess firearms, reasonable in its purposes and consistent with the right to bear arms protected under the Second Amendment“); United States v. Chovan, 735 F.3d 1127, 1139-41 (9th Cir. 2013) (upholding, under intermediate scrutiny, a federal law prohibiting gun possession by those who have been convicted of misdemeanor domestic violence offenses because the law was “substantially related to the important government interest of preventing domestic gun violence“); State v. Smith, 132 N.H. 756, 571 A.2d 279 (1990) (holding that New Hampshire‘s felon-in-possession law, which applied to drug felonies, felonies against persons, and felonies against property, “narrowly serve[d] a significant governmental interest in protecting the general public” even though “[c]onceivably some felons falling within the reach of [the statute] are not potentially dangerous“).
Merritt argues that
But narrow tailoring “does not require exhaustion of every conceivable alternative.” Grutter, 539 U.S. at 339. Section 571.070.1(1) does not apply to any misdemeanors, unlike the federal felon-in-possession law, which applies to misdemeanor domestic violence offenses. See
Many of the restrictions Merritt argues the General Assembly should have included in
Conclusion
The circuit court‘s judgment dismissing the three counts of unlawful possession of a firearm is reversed, and the case is remanded.
Breckenridge, C.J., Fischer, Wilson and Russell, JJ., concur;
Draper, J., concurs in result in separate opinion filed;
Teitelman, J., concurs in opinion of Draper, J.;
Stith, J., concurs in result and concurs in opinion of Draper, J.
George W. Draper III, Judge,
concurring in result.
I concur with the principal opinion‘s holding that section 571.070 is constitutional under article I, section 23, as it was written at the time Marcus Merritt (hereinafter, “Merritt“) was charged with his crimes. Consistent with my position in Dotson v. Kander, 464 S.W.3d 190 (Mo. banc 2015), I disagree that strict scrutiny must be applied to any right to bear arms claim brought under article I, section 23 as it was written prior
The principal opinion relies on District of Columbia v. Heller, 554 U.S. 570, 595 (2008), McDonald v. City of Chicago, Illinois, 561 U.S. 742, 791 (2010), and Dotson to support its position that Missouri courts are obligated to apply strict scrutiny when reviewing section 571.070‘s constitutional validity. A careful reading of these cases does not compel such a result.
The Heller Court declined to establish a level of scrutiny when it evaluated the Second Amendment restriction. Heller, 554 U.S. at 634. In a footnote, the United States Supreme Court stated judicial review required something more than “rational basis” because “[i]f all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.” Id. at 629 n.27. Further, Heller found that the right to keep and bear arms is not unlimited and is “not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626. The Heller Court was careful to point out: “[N]othing in our opinion should 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....” Id. at 626-27. The Supreme Court went on to identify prohibitions against felons possessing firearms as “presumptively lawful regulatory measures.” Id. at n. 26.
Two years after Heller, the United States Supreme Court extended the Second Amendment‘s application to the states by virtue of the Fourteenth Amendment‘s Due Process Clause. McDonald, 561 U.S. 742 at 791. However, the Supreme Court again judiciously avoided naming or applying a particular level of scrutiny when reviewing this fundamental right. McDonald, 561 U.S. at 782-84.
This Court in Dotson resolved an election contest concerning the fairness and sufficiency of the ballot title for the new amendment to article I, section 23, which failed to apprise Missouri voters that “strict scrutiny” would apply to any restriction on the right to bear arms. Dotson, at 209 n. 5. The per curiam opinion in Dotson recognized there was no settled analysis under federal law or Missouri law defining a particular level of judicial scrutiny regarding firearms regulations. Id. However, in a footnote, the per curiam opinion surmised for the first time that “strict scrutiny would have applied under the Missouri constitution had a challenge been made” under article I, section 23 after McDonald because the United States Supreme Court stated the right to bear arms is a fundamental right. Dotson, at 209 n. 5. The principal opinion now asserts it is bound to follow its advisory determination in Dotson now that an actual challenge has reached this Court.
In addition to reaching the issue before it was ripe, I believe Dotson is incorrect and decisively erroneous on this issue because, despite recognizing the right to keep and bear arms as a fundamental right, Heller and McDonald specifically declined the invitation to apply strict scrutiny and explicitly avoided stating what type of scrutiny would apply to cases challenging the right to bear arms. Heller, 554 U.S. at 628-29; McDonald, 561 U.S. at 782-84. Instead, Heller merely states: “Under any of the standards of scrutiny that we have applied to enumerated constitutional rights, banning from the home the most
If the United States Supreme Court purposefully sidestepped applying a particular level of scrutiny in two cases involving this fundamental right, this Court in Dotson was not, as the principal opinion now proclaims, beholden to apply strict scrutiny in an effort to follow the holdings in Heller and McDonald. Likewise, the principal opinion need not reach that far to uphold section 571.070 in this case.
Despite my disagreement about the appropriate standard of review to apply to article I, section 23 challenges raised prior to the 2013 amendment, section 571.070 can be upheld under the less rigorous standard articulated in State v. Richard, 298 S.W.3d 529 (Mo. banc 2009), and State ex rel. Kansas City, Mo. v. Pub. Serv. Comm‘n, 524 S.W.2d 855, 862 (Mo. banc 1975). Those cases stated a reviewing court should examine whether a statute professing to be an exercise of the state police power has a real and substantial relationship to the protection of public safety and does not invade constitutional rights unjustifiably. Id. Here, section 571.070, a statute constituting an exercise of the state‘s police power, is constitutional because it has a real and substantial relationship to the protection of the public safety by regulating the possession of firearms by convicted felons and does not unjustifiably invade rights secured by the constitution. Accordingly, I concur in the result reached by the principal opinion reversing the circuit court‘s judgment dismissing the counts against Merritt.