                SUPREME COURT OF MISSOURI
                                         en banc
STATE OF MISSOURI,                         )
                                           )
        Appellant,                         )
                                           )
vs.                                        )       No. SC94954
                                           )
PIERRE CLAY,                               )
                                           )
        Respondent.                        )

       APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS
                    Honorable Robert H. Dierker, Judge

                             Opinion issued February 9, 2016

        The State appeals the trial court’s holding that the right to bear arms set out in

article I, section 23 of the Missouri Constitution is violated by section 571.070.1, 1 which

prohibits nonviolent felons from possessing firearms. The trial court based its ruling on

the adoption of Amendment 5 in August 2014, which added language to article I, section

23 requiring, inter alia, strict scrutiny of laws restricting the right to bear arms as set out

in section 23 and further declaring that “nothing in this section shall be construed to

prevent the general assembly from enacting general laws which limit the right of

convicted violent felons [to bear arms] ….” The trial court erred in construing this

language to bar the legislature from adopting laws regulating the possession of arms by




1
    Statutory citations are to RSMo Supp. 2013 except where otherwise indicated.
nonviolent felons.

       The legislature has the authority to adopt laws, except when expressly prohibited

by the constitution, and section 23 is silent as to the right of nonviolent felons to possess

firearms. The explicit statement in section 23 that laws regulating the right to bear arms

are subject to strict scrutiny has no impact on this ruling because, as this Court recently

noted in State v. Merritt, 467 S.W.3d 808 (Mo. banc 2015); State v. McCoy, 468 S.W.3d

892 (Mo. banc 2015); and Dotson v. Kander, 464 S.W.3d 190 (Mo. banc 2015), it always

has applied strict scrutiny to laws regulating the right to bear arms. The circuit court’s

judgment is reversed, and the case is remanded.

I.     FACTUAL AND PROCEDURAL HISTORY

       Pierre Clay was stopped on January 26, 2015, for a traffic violation and found to

possess a revolver. Police ran his record and arrested him after discovering he had a prior

felony conviction. On February 25, 2015, Mr. Clay was charged by information with

possession of marijuana in violation of section 195.202 and with unlawful possession of a

firearm in violation of section 571.070.1(1).        Section 571.070.1 prohibits persons

previously convicted of a felony from possessing firearms, stating:

       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).

       Mr. Clay does not deny that he comes within the scope of section 571.070.1

because he is a prior offender, having been convicted previously of the nonviolent felony
of unlawful use of a weapon. But he moved to dismiss the unlawful possession charge,

claiming that article I, section 23 of the Missouri Constitution prohibits the legislature

from criminalizing his possession of a firearm. The trial court agreed and dismissed the

firearms possession count prior to issuance of this Court’s opinions in Merritt, 467

S.W.3d 808, and McCoy, 468 S.W.3d 892. The State appeals. Because this appeal

involves 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. 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)

(internal citations omitted).

III.   ARTICLE I, SECTION 23, AS AMENDED, DOES NOT BAR REGULATION
       OF FIREARMS BY NONVIOLENT FELONS

       Mr. Clay claims that article I, section 23, as amended in August 2014, bars the

legislature from regulating the possession of firearms by nonviolent felons. This Court

disagrees. The people of Missouri adopted Amendment 5 on August 5, 2014. 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.

                                             3
Id. Following the adoption of Amendment 5, article I, section 23 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, sec. 23 (new language in bold italics, deleted language struck through).

       A. The Pre-Amendment 5 Version of Article I, Section 23 Permitted Regulation
          of Firearms’ Possession by Felons

       This Court recently interpreted article I, section 23 in two cases: Merritt, 467

S.W.3d 808, and McCoy, 468 S.W.3d 892. The defendants in both of those cases argued,

as Mr. Clay argues here, that in authorizing the legislature to regulate the possession of

firearms by violent felons, Amendment 5 must be read to prohibit the legislature from

regulating the possession of firearms by nonviolent felons. This Court did not reach that

issue in Merritt or McCoy because the crimes with which the defendants in those cases

were charged occurred before the adoption of Amendment 5. This Court rejected those

defendants’ argument that Amendment 5 applied retroactively and held that, to the

contrary, the legislature’s authority to regulate firearms must be determined under the

version of article I, section 23 that was in effect at the time of their crimes. Merritt, 467



                                             4
S.W.3d at 810, 812; McCoy, 467 S.W.3d at 893-95. 2

       In both Merritt and McCoy, this Court further held that because cases such as

District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago,

Illinois, 561 U.S. 742, 791 (2010), have recognized that the right to bear arms is a

fundamental right, strict scrutiny must be used in analyzing the constitutionality of any

regulation of that right. Merritt, 467 S.W.3d at 812-13; McCoy, 468 S.W.3d at 895-96. 3

These cases also recognize that strict scrutiny is not a monolithic concept. Rather, “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.” Merritt, 467 S.W.3d at 813; McCoy 468 S.W.3d at 897. Or, as Justice

O’Connor noted in Grutter v. Bollinger, 539 U.S. 306, 327 (2003), “Context matters …

strict scrutiny is designed to provide a framework for carefully examining the importance

and the sincerity of the reasons advanced by the governmental decision maker ....”

       While most commonly courts apply strict scrutiny by determining whether a law

was narrowly tailored to achieve a compelling state interest, in other cases, depending on

the extent the regulation burdens a particular right, the courts look to whether a regulation


2
  “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.” Merritt, 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.
3
   By contrast, the United States Supreme Court in Heller and McDonald recognized that
the right to bear arms is fundamental, but declined to identify the appropriate level of
scrutiny of laws regulating the right to bear arms. See, e.g., Heller, 554 U.S. 570;
McDonald, 561 U.S. 742.
                                              5
imposes “reasonable, non-discriminatory restrictions” that serve “the State’s important
                                                                        4
regulatory interests” or whether the encroachment is “significant.”         Similarly, Heller

looked at the nature of the regulation and the degree of infringement it imposed on the

second amendment. 554 U.S. at 628-29. Heller found the absolute handgun ban in the

case before it was a “severe restriction” that would be unconstitutional “[u]nder any of

the standards of scrutiny that we have applied to enumerated constitutional rights[.]” Id.

       Most important here, while Heller declined to expressly determine which scrutiny

level and test applied, it stated that whatever the level, its ruling “did not cast doubt on

such longstanding prohibitions on the possession of firearms by felons and the mentally

ill.” Heller, 554 U.S. at 626-27; accord, McDonald, 561 U.S. at 786.




4
   See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (racial classifications must
be “narrowly tailored measures that further compelling government interests”); Dun v.
Blumstein, 405 U.S. 330, 342, 353 (1972) (durational residence laws must be “necessary
to promote a compelling governmental interest”); and Kramer v. Union Free Sch. Dist.
No. 15, 395 U.S. 621, 627 (1969) (“[I]f a challenged state statute grants the right to vote
to some bona fide residents of requisite age and citizenship and denies the franchise to
others, the Court must determine whether the exclusions are necessary to promote a
compelling state interest.”). Compare these statements of the test with Burdick v.
Takushi, 504 U.S. 428, 434 (1992), which held that “reasonable, nondiscriminatory
restrictions” on the rights of voters are justified if “the State’s important regulatory
interests are generally sufficient to justify the restriction.” (internal quotation omitted).
See also Griswold v. Connecticut, 381 U.S. 479, 504 (1965) (White, J concurring)
(“Where there is a significant encroachment upon personal liberty, the State may prevail
only upon showing a subordinating interest which is compelling. But, such statutes, if
reasonably necessary for the effectuation of a legitimate and substantial state interest, and
not arbitrary or capricious in application, are not invalid under the Due Process Clause.”)
(internal citations omitted). See also Grutter, 539 U.S. at 326-27, and Adarand
Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (strict scrutiny is not “strict in
theory, but fatal in fact.”); Adam Winkler, Fatal in Theory and Strict in Fact: An
Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 808
(2006).
                                              6
       While, unlike Heller and McDonald, Merritt and McCoy explicitly did apply strict

scrutiny, they similarly held that it was unnecessary for them to determine which strict

scrutiny test applies to the right to bear arms because section 571.070.1’s restriction on

the possession of weapons by felons survives even the most stringent formulation of the

strict scrutiny standard in that it is narrowly tailored to achieve a compelling state

interest. Merritt, 467 S.W.3d at 814; McCoy, 468 S.W.3d at 897. The State has a

compelling governmental interest in “ensuring public safety and reducing firearm-related

crime … [and] [p]rohibiting 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.’” Merritt, Id. at 814, citing United States v.

Barton, 633 F.3d 168, 175 (3d. Cir. 2011). Further, this Court already has held that

restrictions on the right of felons to possess arms has long been recognized as an

exception to the right to bear arms, and section 571.070.1 is narrowly tailored in that it

does not apply to misdemeanors, felony convictions that have been pardoned, or

possession of antique firearms. Id. at 815-16. 5

       B. Amendment 5 did not Substantially Change the Right to Bear Arms

       Mr. Clay argues that the analysis in Merritt and McCoy does not apply here




5
  This Court rejects any suggestion that for the law to survive strict scrutiny this Court
must in each case de novo reconsider and itself evaluate the strength of studies about the
use of weapons by felons before it can determine whether restrictions on the right of
felons to bear arms are sufficiently narrowly tailored. This Court very recently held that
the law in question is narrowly tailored and is consistent with this country’s tradition of
limiting weapons in the hand of felons. No new evidence or changed law has been
identified that calls for reevaluation of that determination.
                                                7
because the adoption of Amendment 5 worked a substantial change in article I, section 23

and that section now bars any regulation of the right of nonviolent felons to possess

firearms. This Court already rejected this argument in Dotson, 464 S.W.3d 190. The

plaintiffs in Dotson argued that the ballot title for Amendment 5 was legally insufficient

because it omitted any description of the language being added to the constitution

concerning strict scrutiny, possession of ammunition and equipment, and other language

and because it did not inform the voter that the amendment substantially changed the

laws regulating the right to bear arms. 6 Dotson, 464 S.W.3d at 196-97.

       Dotson rejected this argument precisely because it found that Amendment 5 did

not substantially change article I, section 23 but rather simply set out “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 192–93, 197, n. 5. While the

ballot title did not detail all of the additions to and deletions from article I, section 23, this

Court found these details were not central features of the constitutional amendment and

the language in Amendment 5 did not mislead voters into thinking they were adding a

new right to the Constitution. The amendment, rather, was an expression or declaration
                                                                                       7
of existing rights; it simply enshrined the status quo as to the right to bear arms.




6
  The ballot title asked voters, “[S]hall the Missouri Constitution be amended to include a
declaration that the right to keep and bear arms is a [sic] unalienable right and that the
state government is obligated to uphold that right?” Dotson, 464 S.W.3d at 196.
7
  For instance, Dotson held, over vigorous separate opinions addressing these very issues
– see 464 S.W.3d at 215–21 (Teitelman, J., dissenting); id. at 205–10 (Stith, J.,
concurring) – that the deletion of language regarding concealed weapons did not change
the legislature’s authority to regulate concealed weapons that existed prior to the
                                               8
       Mr. Clay asks this Court to overrule Dotson and decide that Amendment 5 did

work a substantial change in article I, section 23. At argument, Mr. Clay and Amicus

Freedom Center of Missouri argued that the addition of language explicitly giving the

legislature the authority to regulate the possession of arms by violent felons and by those

with a mental disorder or infirmity meant that it could not regulate the possession of arms

by other felons.

       Article I, section 23 does not support this argument. It would have been simple

for the people to include language in Amendment 5 prohibiting the legislature from

regulating possession of firearms by nonviolent felons.          The amendment could, for

instance, have said, “The legislature is prohibited from regulating the possession of

firearms by nonviolent felons” or “The legislature may regulate the possession of

firearms by violent felons and those adjudicated to have certain mental disorders but may

not regulate the possession of firearms by others.” But, it did not. The amendment did

not address nonviolent felons specifically in article I, section 23.




amendment and that the addition of the right to ammunition and accessories was not so
material that its omission from the ballot title made it unfair or insufficient. Id. at 196–
99. This Court further stated:

       [T]he fact that this right [to bear arms] is “fundamental” from a legal
       perspective does not mean that it is improper for the voters to add a
       declaration that the right is “unalienable.” Similarly, the fact that the state
       always has had the obligation to uphold and protect this right together with
       the rest of the constitution does not mean it is improper for the voters to add
       a declaration that this is so.

Dotson, 464 S.W.3d. at 200.

                                              9
       The only specific groups of citizens addressed by Amendment 5 are those who are

“convicted violent felons or those adjudicated by a court to be a danger to self or others

as a result of a mental disorder or mental infirmity.” Amendment 5 makes explicit that

the clarification of the application of strict scrutiny and the other changes adopted cannot

be construed to prohibit regulation of arms by such persons. The amendment simply is

silent as to others. This does not mean that regulation of the possession of arms by others

is not permitted. Were that the case, the amendment would have been very short indeed

and would not have needed to address the level of scrutiny to be applied to regulations of

the right to bear arms, for there could be no such regulation. Instead, Amendment 5 sets

out the standard of scrutiny for regulation of arms possessed by persons other than

convicted violent felons and persons with certain mental disorders or infirmities – such

regulations may be adopted but will be subject to strict scrutiny.

       This analysis follows not only from the language used in article I, section 23 as

amended by Amendment 5 but also from general principles of constitutional construction.

       [T]he Constitution is not a grant but a restriction upon the powers of the
       legislature. Consequently, the General Assembly has the power to do
       whatever is necessary to perform its functions except as expressly
       restrained by the Constitution. Deference due the General Assembly
       requires that doubt be resolved against nullifying its action if it is possible
       to do so by any reasonable construction of that action or by any reasonable
       construction of the Constitution.

Liberty Oil Co. v. Dir. of Revenue, 813 S.W.2d 296, 297 (Mo. banc 1991) (internal

citations omitted) (emphasis added).

       This Court reached a similar result in analyzing the previous version of article I,

section 23 in Brooks v. State, 128 S.W.3d 844, 847–48 (Mo. banc 2004). At issue in

                                             10
Brooks was whether an act adopted by the legislature authorizing the wearing of

concealed weapons violated the portion of the previous version of article I, section 23,

which stated that Missourians have the right to bear arms but “this shall not justify the

wearing of concealed weapons.” This Court held that this section did not contain a

“constitutional prohibition against the wearing of concealed weapons; there is only a

prohibition against invoking the right to keep and bear arms to justify the wearing of

concealed weapons.” Brooks, 128 S.W.3d at 847. In other words, article I, section 23 did

not itself authorize a person to carry a concealed weapon, but that did not prohibit the

legislature from authorizing the public to do so. This meant that “the General Assembly,

which has the plenary power to enact legislation on any subject in the absence of a

constitutional prohibition, has the final say in the use and regulation of concealed

weapons[.]” Id. (internal citations omitted).

       Similarly, here, Amendment 5 did not bar the General Assembly from adopting

laws regulating possession of firearms by nonviolent felons. It does state that such laws

are subject to strict scrutiny. “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 197, citing Adarand Constructors, Inc. v. Pena, 515

U.S. 200, (1995).

       This Court already has subjected section 571.070.1 to strict scrutiny in Merritt and

McCoy and found that section 571.070.1 is narrowly tailored to serve a compelling

government interest in protection of the public. This Court already has determined in

Dotson that Amendment 5 worked no substantial change in article I, section 23. This

                                             11
Court here has clarified that the specific grant of authority in Amendment 5 to adopt laws

regulating the possession of firearms by convicted violent felons does not affect the right

of the legislature to adopt laws regulating the right of others to possess firearms where, as

here, those laws pass strict scrutiny. 8 Accordingly, section 571.070.1 is a constitutional

restriction of a convicted nonviolent felon’s right to bear arms.

IV.    CONCLUSION

       Missouri’s constitution does not prohibit the legislature from restricting nonviolent

felons’ right to possess firearms. Section 571.070.1 survived strict scrutiny review under

the prior version of article I, section 23, and this Court already has held that Amendment

5 did not substantially change article I, section 23. The statutory bar is valid. The circuit

court’s judgment is reversed, and the case is remanded.



                                                  _________________________________
                                                    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
Teiteman, J.




8
  Mr. Clay argues that article I, section 23 now requires a “robust” strict scrutiny review
of any restriction on the right to bear arms because the word “unalienable” was added to
the constitution. But the concept of inalienability is distinct from strict scrutiny review.
No one suggests that the right to bear arms is alienable. The question here is whether
preventing nonviolent felons from possessing firearms violates the inalienable right.
Mr. Clay cites no case requiring a more robust review of the right to bear arms because it
is inalienable, and in any event, there is no more robust test than strict scrutiny.
                                              12
               SUPREME COURT OF MISSOURI
                                         en banc



STATE OF MISSOURI,                         )
                                           )
       Appellant,                          )
                                           )
vs.                                        )      No. SC94954
                                           )
PIERRE CLAY,                               )
                                           )
       Respondent.                         )


                                    Dissenting Opinion

       The principal opinion holds that the section 571.070.1, RSMo Supp. 2013, ban on

the possession of firearms by convicted felons is constitutional as applied to nonviolent

felons because the restriction is narrowly tailored to serve the compelling state interest in

public safety. The State certainly has a compelling interest in public safety. I

respectfully dissent, however, because the State fails to establish that essentially

abrogating the fundamental constitutional right to keep and bear arms for convicted

nonviolent felons is narrowly tailored to serve the interest in public safety. The practical

effect of section 571.070.1 is that individuals with no demonstrated propensity toward

violence are forever stripped of their fundamental constitutional right to keep and bear
arms “in defense of [their] home, person, family and property, or when lawfully

summoned in aid of the civil power ....” Irrespective of one’s view of article I, section

23, the fact remains that it establishes a fundamental right that the people of Missouri

have retained for themselves and that is subject to restriction only on the narrowest

grounds. The categorical and permanent restrictions that section 571.070.1 places on the

exercise of this fundamental right are too broad to survive strict scrutiny.

       As the principal opinion notes, this Court recognized that under the former version

of article I, section 23, the right to bear arms was considered a fundamental right and that

restrictions on that right were subject to strict scrutiny. State v. Merritt, 467 S.W.3d 808,

812-13 (Mo. banc 2015); State v. McCoy, 468 S.W.3d 892, 895-96 (Mo. banc 2015).

McCoy and Merritt both held that the section 571.070.1 ban on the possession of firearms

by felons was constitutional because it was narrowly tailored to accomplish the

compelling state interest in ensuring public safety and reducing gun crime. Because

Merritt and McCoy applied strict scrutiny and article I, section 23 now expressly requires

strict scrutiny, the principal opinion concludes that Merritt and McCoy are dispositive of

this case. The logic of this position is flawless, but the conclusion is faulty. The problem

is that the State never demonstrated that categorically and permanently restricting the

fundamental constitutional right of nonviolent felons is narrowly tailored to meet a

compelling state interest in public safety. There are at least three deficiencies in the

argument that permanently abrogating the constitutional rights of nonviolent felons to

keep and bear arms in defense of themselves and their families is narrowly tailored to

achieve the State’s compelling interest in public safety.

                                              2
             I. The studies and data offered by the State are insufficient

       To survive strict scrutiny, the statutory ban on the possession of firearms by

convicted nonviolent felons must be narrowly tailored to serve the compelling state

interest in public safety. To determine whether section 571.070.1 is narrowly tailored to

prevent gun crimes, this Court must “look at what kinds of [gun crimes] have been shown

to exist and what kinds of [gun crimes] the [firearms possession ban] will ameliorate.”

Weinschenk v. State, 203 S.W.3d 201, 217 n. 27 (Mo. banc 2006) (holding that provision

requiring photo identification to vote was not narrowly tailored to serve the compelling

state interest in preventing voter fraud). The studies and data offered by the State do not

demonstrate that permanently banning convicted nonviolent felons from possessing a

firearm will ameliorate any gun crimes whatsoever.

       The State has provided very limited data indicating that convicted felons tend to

commit more crimes than the general population. None of the studies, data or articles

cited by the State differentiate between the rate and types of gun crimes committed by

those with no prior convictions relative to individuals with prior nonviolent or violent

convictions. The State does not show that any of the studies or articles separately

analyzed obvious variables such as the number and nature of the prior offenses, the

number and nature of subsequent offenses, the age of the offenders, or the lapse of time

between offenses. The lack of analysis of different variables renders it impossible to

determine the relative propensity of convicted nonviolent felons to commit gun crimes.

Without this information, it is impossible to determine whether restricting the rights of



                                             3
nonviolent felons is actually narrowly tailored to achieve the goal of public safety. 1 The

lack of even rudimentary scientific rigor leaves the State to rely on what amounts to

assumptions, conjecture, and “common sense” unmoored by relevant, established facts. 2

The State’s justifications would survive rational basis review, but the State’s

justifications rely on instruments too blunt to carve out a narrowly tailored restriction on

the exercise of a fundamental constitutional right.

                    II. The ever-expanding scope of nonviolent felonies

       The principal opinion asserts that “context matters” when courts apply strict

scrutiny. If context matters, then this Court should consider the fact that the list of

nonviolent and impersonal regulatory offenses is a long one and it grows every year. 3


1
  It is instructive to compare the sparse justifications offered by the State in this case with the
extensive and detailed record in cases where the government justified a policy that was subject to
strict scrutiny. For instance, in Grutter v. Bollinger, 539 U.S. 306, 327 (2003), the Supreme
Court held that an affirmative action policy in law school admissions was narrowly tailored to
serve a compelling state interest in obtaining educational benefits from a racially diverse student
body. The record in Grutter included academic studies and extensive expert testimony on both
sides of the issue. This is not to say that strict scrutiny is satisfied only when the State relies on
scientific studies and extensive expert testimony. But when, as in this case, the asserted State
interest is preventing a specific social problem, strict scrutiny requires the State to demonstrate
that its chosen method of restricting fundamental constitutional rights is in fact narrowly tailored
to achieve that purpose. At the very least, the State should be able to direct courts to facts that
are relevant and reliable.
2
  For instance, the State cites a “study” that purports to show a “20% to 30%” reduction in risk
for unspecified later “criminal activity” due to the denial of “handgun purchases to convicted
felons.” There is no indication of what “criminal activity” was reduced and, obviously, the study
looked at the denial of handgun purchases rather than a permanent and categorical ban on
firearms possession by nonviolent felons. The authors of this study actually concede that the
sample size was too small to determine “some potentially important differences in risk for later
criminal activity” or whether the differences noted “occurred by chance.”
3
  There are dozens upon dozens of these types of nonviolent felony offenses. For instance,
section 260.208 provides that an applicant for a permit to operate a solid waste processing
facility commits a class D felony by failing to notify the director of the department of natural
                                                  4
While it is beyond dispute that murderers, rapists and others who commit violent or

dangerous felonies have amply demonstrated the inability to abide by the responsibilities

entailed by the right the right to bear arms, that conclusion becomes considerably less

certain and, in some cases, counterintuitive when one considers the broad and ever-

expanding array of nonviolent felonies. Yet section 571.070.1 strips the delinquent

taxpayer of his or her constitutional rights on the same terms as a murderer. I fail to see

how restricting the constitutional rights of those who bet on horse races or divulge the

names and addresses of donors to a state-established trust fund is narrowly tailored to the

prevention of gun violence.

                         III. Improper Applications of Case Law

       In Merritt and McCoy, this Court relied on State v. Eberhardt, 145 So. 3d 377 (La.

2014), to support the conclusion that section 571.070.1 survives strict scrutiny. In this

case, the State once again cites Eberhardt to support its argument that restricting the

constitutional rights of nonviolent felons is narrowly tailored to serve the interest in

public safety. The statute at issue in Eberhardt, which imposed a 10-year ban on

firearms possession by individuals who committed specifically enumerated dangerous

and potentially dangerous felonies was permissible even under strict scrutiny. The

Eberhardt court reasoned that history, consensus, and “simple common sense” were



resources that he or she has previously been convicted of an offense involving price-fixing or
some other offense related to the restraint of trade. Section 143.1003 provides that one commits
a class C felony by disclosing the name or address of contributors to the Missouri National
Guard Trust Fund. Section 285.306 provides that an employee who fails to fill out a federal tax
withholding form commits a class D felony. Section 313.660 makes it a class C felony to bet on
a horse race while outside the enclosure of a licensed horse racing track.
                                               5
sufficient to demonstrate that the targeted firearms restriction survived strict scrutiny

review. Id. at 385.

       The problem is that the statute at issue in Eberhardt is radically different from

section 571.070.1. First, unlike the categorical ban in section 571.070.1, the statute at

issue in Eberhardt was narrowly tailored in that it banned the possession of firearms by

dangerous felons. Given that the asserted State interest is protecting the public from gun

crime, it follows that a narrowly tailored restriction on constitutional gun rights will focus

on those with a demonstrated propensity to engage in violent or dangerous offenses,

which pose a risk to public safety. While delinquent taxpayers may disregard the law,

one cannot plausibly assert that their conduct is evidence of a propensity to engage in

conduct that poses a risk to public safety.

       Second, unlike the permanent ban imposed by section 571.070.1, the Louisiana

statute was further limited because it imposed a 10-year ban following completion of the

sentence. In contrast, the ban imposed by section 571.070.1 is permanent. Accordingly,

the young woman whose youthful impetuousness led her to place an illegal bet on a horse

race will be, as a mature and law-abiding citizen, forever barred from possessing a

firearm for purposes of defending herself and her family. The statute at issue in

Eberhardt was narrowly tailored because it contained additional, targeted criteria for

assessing an individual’s propensity to engage in violent or dangerous behavior. The

Louisiana statute is narrowly tailored because, unlike section 571.070.1, it separates the

murderers and rapists from the delinquent taxpayers and off-track bettors.



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       I would hold that section 571.070.1, as applied to convicted nonviolent felons,

violates article I, section 23 of the Missouri Constitution.



                                                  _________________________________
                                                  Richard B. Teitelman, Judge




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