Missouri's New "Strict Scrutiny" of
Gun Laws Frees Non-Violent Felon



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By Kurt Hofmann, March 4th 2015, 2014
JPFO writer contributor, © 2014.

Last Friday, St. Louis Circuit Judge Robert Dierker struck down "felon in possession" charges against Raymond Robinson, who last July was arrested with a handgun. This was illegal because he was convicted of a felony in 2003. That charge, ironically, was for illegally carrying a concealed firearm (back when any carrying of a concealed firearm was illegal for the vast majority of Missourians). In other words, Robinson was given a life sentence of state-mandated defenselessness, for the "crime" of being prepared to defend himself.

Raymond Robinson

Judge Dierker's decision to dismiss the charges against Robinson was prompted by Missouri Constitutional Amendment 5, approved by a resounding 61% of Missouri's voters last August, in a referendum that amended the state constitution's Section 23 (Missouri's rough equivalent to the U.S. Constitution's Second Amendment) by declaring that the constitutional protection of the right to keep and bear arms extends to ammunition and firearm accessories, that these rights are unalienable, with laws that burden them subject to strict scrutiny, and that the state is obligated to uphold these rights. It also repealed Section 23's previous assertion that the carrying of concealed weapons was not protected by the constitution.

The final portion of the amendment is a bit surprising, coming as it does in the same paragraph in which the right to keep and bear arms is declared "unalienable":

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 a result of mental disorder or mental infirmity.

That kinda sounds like a description of just how the Missouri constitution asserts that the right to keep and bear arms can be legitimately "aliened." At any rate, that provision doesn't apply to Robinson, because his "felony" (carrying a gun) had nothing to do with violence, and he has not been diagnosed with any mental disorders or infirmities.

Jennifer Joyce

This, predictably, doesn't sit well with some, including (again predictably) Circuit Attorney Jennifer Joyce, who has vowed to appeal the ruling. From the St. Louis Post Dispatch:

"This is exactly the type of litigation that I and others have warned about," Joyce said in an interview Friday. Her office said roughly 300 felon-in-possession charges are filed in St. Louis each year "to get dangerous felons disarmed."

Joyce has been fighting this amendment since before it was even voted on, as has St. Louis Police Chief Sam Dotson, who is still trying to defy the will of the electorate, suing to have Amendment 5 overturned.

Anti-gun fanatic Michael Bloomberg's "Everytown for Gun Safety" is also enthusiastically on board with the anguished bleating. From their press release:

Today's decision by Missouri Circuit Court Judge Robert H. Dierker is an example of just how dangerous 'strict scrutiny' amendments like Amendment 5 are – in one strike of his gavel, Judge Dierker has declared that convicted felons are no longer all prohibited from possessing guns in Missouri. It is likely the state will appeal Judge Dierker's decision and a higher court may well reinstate the felon in possession law – but even if Robinson's conviction is affirmed, this case is a prime example of how Amendment 5 calls into question basic public safety laws. . . .

Prosecutors across Missouri will now decline to bring charges against felons or others who violate gun crimes, for fear that a court will throw out the law like Judger [sic] Dierker did today. And the taxpayers of Missouri will pay the costs to defend challenges like the one Robinson brought – and won – today, not to mention the immeasurable cost of weakening public safety for Missouri families and communities.

Kurt Schaefer

Even the sponsor of the resolution that put the amendment on the ballot, Missouri State Senator Kurt Schaefer, claims that neither the intent nor the legal wording of the amendment supports lifting the forcible disarmament affliction from people like Robinson.

This is an unfortunate retreat on his part. By acknowledging that the right to keep and bear arms is "unalienable," and by explicitly specifying that it is violent felons for whom the right is to be considered "alienable," after all, the language of the bill pretty clearly does protect the right of people like Robinson to keep and bear arms.

And no one associated with the effort to put Amendment 5 into force should be ashamed of that. Robinson has paid his debt to society, and has as much right to effective means of defending his life and liberty as anyone else.

Actually, I would go further, and argue that even if Robinson's victimless "felony" were a violent crime, he still could not legitimately be denied his fundamental human right of the individual to keep and bear arms, no matter whether or not any document acknowledges that right. As David Codrea has long contended, "Anyone who can't be trusted with a gun can't be trusted without a custodian."

At the time of Robinson's arrest, he had been a free man--or should have been. Denied government recognition of his right to arm himself against threats to his life and liberty, though, he was robbed of an essential element of that freedom. If the prosecution wins its appeal, and overturns Judge Dierker's ruling, he will lose even the illusion of forcibly disarmed "freedom." That's unconscionable.

A former paratrooper, Kurt Hofmann was paralyzed in a car accident in 2002. The helplessness inherent to confinement to a wheelchair prompted him to explore armed self-defense, only to discover that Illinois denies that right, inspiring him to become active in gun rights advocacy. He also writes the St. Louis Gun Rights Examiner column. Kurt Hofmann Archive.

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