# SUPREME COURT OF MISSOURI en banc STATE OF MISSOURI, ) ) Appellant, ) ) vs. ) No. SC949 54 ) 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 A mendment 5 in August 2014 , which added language to article I, section 23 requiring , inter alia, strict scrutiny of laws restricti ng 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] ....” T he trial court erred in constru ing 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 legislatu re has the authority to adopt laws , except whe n expressly prohibited by the c onstitution , and s ection 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 viol ation and found to possess a revolver. Police ran his record and arrested him after discover ing he had a prior
fel ony conviction

. O n February 25, 2015 , Mr. Clay was charged by information with possession of marijuana in violation of section 195.202 and with unlawf ul possession of a
firearm in violation of section 571.070.1 (1)

. Section 571.070.1 pro hibits persons previously convicted of a felony from possessing firearms, stating:
A person commits the crime of unlawful possession of a firearm if such person knowingl y has any firea rm 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 s tate, 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 felony3 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 criminaliz ing 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 appeal s
. Because this appeal involves the validity of a state statute, this Court has exclusive appellate jurisdiction pursuant to article V, sect ion 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 i s 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 FIREARM S 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, a rticle 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

.4 Id. Following the ad option 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 circumst ances 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 Felon s 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 fire arms 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 A mendment 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 , 4675 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 C olumbia 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. 3 d at 81 2

- 1 3 ; McCoy , 468 S.W.3d at 895

- 96

. 3 These cases also recognize that s trict 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, a s Justice
O’Connor noted in Grutter v. Bollinger , 539 U.S. 306, 32 7 (2003) , “ C ontext matters

... strict scrutiny is designed to provide a framework for carefully examining the importance
and the sinc erity 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 .” Merrit t , 467 S.W.3d at 812 (internal citations omitted). As Amendment 5 d oes n ot 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 funda mental, but declined to identify the appropriate level of scrutiny of laws regulating the right to bear arms. S ee , e.g., Heller, 554 U.S. 570; McDonald, 561 U.S. 742

.6 imposes “reasonable, non

- discriminatory restrictions” that serve “the State’s important regulatory interests” or whether the encroachment is “significant

. ” 4 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 e numerated 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 no t cast doubt on such longstanding prohibitions on the possession of firearms by felons and the mentally
ill.” Heller, 554 U.S. at 626

- 27 ; a ccord, McDonald, 561 U.S. at 786

.

4 S ee, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) (racial classifications m ust be “ narrowly tailored measures that further c ompelling 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 (19 69 ) (“[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, t he Court must determine whether the exclusions are necessary to promote a compelling state interest. ”). Compare these statements of the test with Bu r dick 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 importan t 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 D ue P rocess C lause. ”) (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, Fat al in Theory and Strict in Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts , 59 V AND

. L. R EV . 793, 808 (2006).7 While , unlike Heller and McDonald, M erritt and McCoy explicitly did apply strict scrutiny, they similarly held that it was un necessary for them to determine which strict scrutiny test applie s 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

. T he State has a compelling governmental interest in “ensuring public safety and redu cing 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 s ection 57 1. 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 S ubstantially C hange the R ight to B ear A rms 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 qu estion is narrowly tailored and is consistent with this country’s tradition of limiti ng weapons in the hand of felons. No new evidence or changed law ha s been identified that call s for reevaluation of that determination.8 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 firear ms . This Court already rejected th is 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

con cerning 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 19 6

- 9 7

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

not substantial ly 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 righ t to bear arms applied to the states.” I d. at 192

– 93 , 197, n. 5

. W hile 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 add ing a new right to the Constitution

. T he amendment , rather, was a n expression or declaration of existing rights ; i t simply enshrined the status quo as to the right to bear arms. 7

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 h eld, over vigorous separate opinions addressing these very issues

– s ee 464 S.W.3d at 215

– 21 ( Teitelman , J., dissenting) ; id. at 205

– 1 0 (Stith, J., concurring)

– that the deletion of language regarding concealed weapons did not change the legislature’s aut hority to regulate concealed weapons that existed prior to the9 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 fel ons. 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 regulati n g possession of firearms by nonviolent felons. The amendment could, for
in stance, 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 19 6

– 9 9

. 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 alw ays 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

.10 The only specific groups of citizens addressed by Amendment 5 are those who are
“convicted viole nt 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 sho rt 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 set s out the standard of scrutiny f or regulation of arms possessed by persons other than convicted violent felons and persons with certain mental disorders or infirmit ies

– 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 necessa ry 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. o f 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 in11 Brooks was whether an act adopted by the legislature authorizing the wearing of
conceale d 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 [.] ” I d

. (internal citations omitted). Similarly, here, Amendment 5 did not bar the General Assembly from adopting laws regulating possession of fire arms 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.” Do tson, 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. This12 Court here has clarified that the spec ific 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 pr ohibit the legislature from restricting nonviolent
felon s ’ 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 val id. The circuit court’s judgment is reversed, and the case is remanded.

_________________________________ L AURA D ENVIR S TITH , J UDGE Breckenridge, C.J., Fischer, Wilson and Russell, JJ., concur; Teitelman, J., dissents in separate op inion 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 c onstitution. But the concept of inalienability is distinct from strict scrutiny review. No one suggests that t he 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 i nalien able, and in any event , there is no more robust test than strict scrutiny.

# SUPREME COURT OF MISSOURI en banc

STATE OF MISSOURI, ) ) Appellant, ) ) vs. ) No. SC949 54 ) 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 c onstitutional as applied to non violent
felons because the restriction is narrowly tailored to serve the compelling state interest in public safety. The S tate certainly has a compelling interest in public safety

. I respect fully dissent, however, because the State fails to establish that essentially
abro gating 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
vio le nce are forever stripped of their fundamental constitutional right to keep and bear2 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 pe rmanent 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 ap plied strict scrutiny and article I, section 23 now expressly requires strict scrutiny, t he principal opinion concludes that Merritt and McCoy are dispos i tive 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
fundamen tal constitutional right of non violen t felons is narrowly tailored to meet a compelling state interest in public safety

. There are at least three d eficiencies in the argument that permanently abrogating the constitutional rights of nonviolent felons to keep and bear arms in defense of themselves and their fami lies is narrowly tailored to achieve the State’s compelling interest in public safety.3 I. The studies and data offered by the State are insufficient To survive strict scrutiny, the stat utory ban on the possessi on of firearms by
convicted non violent felons must be narrowly tailored to serve the compelling state interest in public safety. To de termine 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). T he studies and data offered by the State do not
demonstr ate that pe rmanently banning convicted non violent felons from possessing a firearm will ameliorate any gun crimes whatsoever.
T he 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 non v iolent 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 analy sis of different variables renders it impossible to
determine the relative propensity of convicted non violent felons to commit gun crimes. Without this information, it is impossible to determine whether restricting the rights of4 non violent 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 non violent felonies The principal opinion asserts that “context matters” when courts apply strict scrutiny. If context matters, then this Court should conside r the fact that the list of

non violent and impersonal regulatory offenses is a lo ng one and it grow s 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 o btaining educational benefits from a racially diverse student body. The record in Grutter included academic studies and extensive expert testimon y 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 ex tensive expert testimony. But when, as in this case, the ass erted S tate interest is preventing a specific social problem , strict scrutiny requires the State to demonstrate that its chosen method of restricting fundamental cons titutiona l 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 S tate 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 pu rchases to convicted felons.” There is no indication of what “criminal activity” was reduced and, obviously, the study looked at the denial of handgun purchases ra ther than a permanent and categorical ban on firearms possession by non violent felons. T he 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 non violent felony offenses. F or 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 d irector of the d epartment of n atural5 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 , t hat conclusion becomes considerably less

cert ain and, in some cases, counter intuitive when one considers the broad and ever

expan ding array of non violent 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 address es of donors to a state

- estab lished trust fund is narrowly tailored to the prevention of gun violence.
I II. Improper Applications of C ase L aw 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 t he constitutional rights of non violent 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 “simp le common sense” w ere

r esources 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 Missou ri 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. Secti on 313.660 makes it a class C felony to bet on a horse race while outside the enclosure of a licensed horse racing track.6 sufficient to demonstrate that the targeted firearms r estriction survived strict scrutiny
review. Id. at 385. The problem is that the statute at issue in Eberhardt is radically diffe rent from
section 571.070.1. First, unlike the categorical ban in section 571.070.1, the statute at
issue in Ebe rhardt was narrowly tailored in that it banned the possession of firearms by dangerous felons. Given that the asserted S tate 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 s afety. 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, th e Louisiana
statute was further l imited 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 i llegal bet on a horse race will be, as a mature and law

- abiding citizen, forever barred from possessing a firearm for purposes of de fending herself and her family. The statute at issue in
Eberhardt was narrowly tailored because it contained additional, ta rgeted criteria for assessing an ind ividual’s propensity to engage in violent or dangerous behavior. The Louisiana statute is narrowly tailored because , unlike section 571.070.1, i t separate s the murderers and rapists from the delinquent taxpayers and off

- track bettors.7 I would hold that section 571.070 .1, as applied to convicted non violent felons, violates article I, section 23 of the Missouri Constitution

.

_________________________________ Richard B. Teitelma n, Judge