              SUPREME COURT OF MISSOURI
                                      en banc
STATE OF MISSOURI,                       )
                                         )
       Appellant,                        )
                                         )
vs.                                      )     No. SC94936
                                         )
RAYMOND ROBINSON,                        )
                                         )
       Respondent.                       )
                                               and
STATE OF MISSOURI,                       )
                                         )
       Appellant,                        )
                                         )
vs.                                      )      No. SC94989
                                         )
STEVE LOMAX,                             )
                                         )
       Respondent.                       )


      APPEALS FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
           Honorable Robert H. Dierker and Steven R. Ohmer, Judges

                           Opinion issued February 9, 2016

       The trial courts in both State v. Robinson and State v. Lomax held that article I,

section 23 of the Missouri Constitution, as amended by Amendment 5 adopted in 2014,

does not permit the State to prohibit non-violent felons from bearing arms. On this basis

these courts dismissed the criminal counts charging Mr. Robinson and Mr. Lomax with
violating section 571.070.1, 1 which prohibits them from carrying weapons due to their

have prior convictions for nonviolent felonies. The State appeals.

         This Court reverses. This Court recently held in State v. Merritt, 467 S.W.3d 808

(Mo. banc 2015), and State v. McCoy, 468 S.W.3d 892 (Mo. banc 2015), that article I,

section 23 as in effect prior to the 2014 adoption of Amendment 5 did not prohibit the

State from regulating the possession of arms by nonviolent felons and that the pre-

Amendment 5 version of article I, section 23 applies to crimes committed prior to

adoption of that amendment. That ruling directly applies here and requires the judgments

to be reversed and the cases to be remanded.

I.       FACTUAL BACKGROUND

         Raymond Robinson was arrested on July 28, 2014, after police received a tip that

he possessed a pistol. Mr. Robinson claimed he owned the gun for personal protection

because he sometimes carried cash. Because Mr. Robinson had a prior conviction for the

nonviolent felony of unlawful use of a weapon, the State charged him with unlawfully

possessing a firearm in violation of section 571.070.1, which states:

         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[.]

§ 571.070.1(1).     While charges against Mr. Robinson were pending, voters approved

Amendment 5 to article I, section 23. Mr. Robinson moved to dismiss the count of

unlawful possession of a firearm, alleging that the amended article I, section 23 does not

permit the State to criminalize a nonviolent felon’s possession of a firearm.      The State


1
    Statutory citations are to RSMo Supp. 2013 except where otherwise indicated.
argued that the amended article I, section 23 did not apply to Mr. Robinson, that neither

version bars the regulation of the carrying of arms by nonviolent felons, and that section

571.070.1 is narrowly tailored to futher the compelling governmental interest in public

safety. 2

         The Robinson trial court was required to rule without the benefit of this Court’s

later opinions in Merritt, 467 S.W.3d 808, and McCoy, 468 S.W.3d 892. It applied the

amended version of article I, section 23 even though Mr. Robinson’s crime occurred prior

to the adoption of that amendment and held that section 571.070.1 was unconstitutional

as applied to Mr. Robinson because his prior felony was a nonviolent one.




2
    Prior to that amendment, article I, section 23 of the Missouri Constitution stated:

         That the right of every citizen to keep and bear arms, in defense of his
         home, person, 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.

Id. Following the adoption of Amendment 5 on August 5, 2014, effective September 4,
2014, article I, section 23 of the Missouri Constitution states:

         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.

Art. I, § 23 (new language in bold, deleted language struck through).

                                                3
       On June 12, 2014, Mr. Lomax similarly was arrested and later charged with

unlawful possession of a firearm in violation of section 571.070.1 as well as certain other

drug-related crimes. As with Mr. Robinson, that arrest occurred prior to the effective

date of Amendment 5, but Mr. Lomax nonetheless claimed that the propriety of the

charge of unlawful possession of a firearm under section 571.070.1 was governed by the

amended version of article I, section 23. He alleged, like Mr. Robinson, that the amended

article I, section 23 bars the State from prohibiting nonviolent felons from possessing

firearms. The trial court in this case also was required to rule without the benefit of this

Court’s later opinions in Merritt, 467 S.W.3d 808, and McCoy, 468 S.W.3d 892, and

dismissed the unlawful possession charge.

       The State appeals both judgments. Because these cases involve the validity of a

state statute, this Court has exclusive appellate jurisdiction pursuant to article V, section 3

of the Missouri Constitution.

II.    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.” “Whether a statute is constitutional is reviewed de novo. City of Arnold v.

Tourkakis, 249 S.W.3d 202, 204 (Mo. banc 2008). Statutes are presumed constitutional

and will be found unconstitutional only if they clearly contravene a constitutional

provision. State v. Pribble, 285 S.W.3d 310, 313 (Mo. banc 2009).” State v. Vaughn, 366

S.W.3d 513, 517 (Mo. banc 2012).

III.   NONVIOLENT FELONS CAN BE PROSECUTED FOR POSSESSION OF
       FIREARMS WITHOUT VIOLATING ARTICLE I, SECTION 23

       As this Court recently noted in Merritt, 467 S.W.3d at 812, and McCoy, 468

                                              4
S.W.3d at 895, the right of the State to regulate a nonviolent felon’s possession of a

firearm is governed by the version of article I, section 23 in effect at the time of the

crime. 3 Mr. Robinson’s and Mr. Lomax’s alleged crimes occurred prior to the passage of

Amendment 5 to article I, section 23. Therefore, this Court does not address the merits

of their arguments that Amendment 5 barred the State from prohibiting them from

bearing arms, for their cases are governed by the law as in effect prior to the adoption of

Amendment 5. 4

       For the reasons set out in Merritt, 467 S.W.3d 808, and McCoy, 468 S.W.3d 892,

this Court reaffirms that article I, section 23 as in effect at the time of Mr. Robinson’s and

Mr. Lomax’s alleged crimes did not prohibit the State from regulating the right of

nonviolent felons to bear arms.        Accordingly, this Court reverses the judgments

dismissing the counts alleging violations of section 571.070.1.

IV.    CONCLUSION

       This Court reverses the judgments in both State v. Robinson and State v. Lomax

and remands the cases.



3
  “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.” Merrit, 467
S.W.3d at 812 (internal citations omitted). As Amendment 5 does not spell out a clear
and explicit intent to apply retroactively, the amendment applies prospectively only.
Merritt, 467 S.W.3d at 812; McCoy, 468 S.W.3d at 895.
4
  The Court notes that in State v. Clay, slip op. at 5, 7-8, handed down concurrently with
this decision, this Court reaffirms its holding in Dotson, 464 S.W.3d at 196-200, that
strict scrutiny always has been applied to laws regulating the right to bear arms in
Missouri and that Amendment 5 did not work a substantial change in article I, section 23,
nor does it prohibit the State from regulating the right of nonviolent felons to bear arms
pursuant to its compelling governmental interest in “ensuring public safety and reducing
firearm-related crime.” Clay, slip op. at 7. Accord, Merritt, 467 S.W.3d at 814, citing,
United States v. Barton, 633 F.3d 168, 175 (3d. Cir. 2011).

                                              5
                                               _________________________________
                                                 LAURA DENVIR STITH, JUDGE

Breckenridge, C.J., Fischer, Wilson and Russell,
JJ., concur; Teitelman, J., dissents in separate
opinion filed; Draper, J., concurs in opinion of
Teitelman, J.




                                           6
               SUPREME COURT OF MISSOURI
                                         en banc
STATE OF MISSOURI,                         )
                                           )
       Appellant,                          )
                                           )
vs.                                        )      No. SC94936
                                           )
RAYMOND ROBINSON,                          )
                                           )
       Respondent.                         )
                                                  and
STATE OF MISSOURI,                         )
                                           )
       Appellant,                          )
                                           )
vs.                                        )      No. SC94989
                                           )
STEVE LOMAX,                               )
                                           )
       Respondent.                         )

                                 DISSENTING OPINION

       I agree with the principal opinion’s conclusion that the former version of article I,

section 23 applies and that strict scrutiny is the applicable standard. For the reasons

expressed in my dissenting opinion in State v. Clay, I respectfully dissent to the extent the

principal opinion holds that restricting the constitutional right of non-violent felons like

Mr. Robinson and Mr. Lomax is permissible under the strict scrutiny standard. I would

affirm the judgements dismissing the charges against both men.

                                                  _________________________________
                                                  Richard B. Teitelman, Judge
