Warning - Licentious sex is unconstitutional!

Tuesday, November 11, 2003

By Morley Swingle

Be honest.

Have you ever done anything licentious? Meaning "sexually unrestrained" or "libertine" or "going beyond customary or proper bounds or limits." If so, it may have occurred to you at the time that others might consider your behavior immoral; but I'll bet you never dreamed you were doing something unconstitutional.

According to the reasoning of the St. Louis circuit judge who just struck down Missouri's concealed-carry law, you were violating the Missouri Constitution during your wild sexual frenzy. Seriously. I kid you not.

At the outset, let me say that I was a vocal opponent of the concealed-carry law. I did not think it was a good idea. I editorialized against it in this newspaper, and I spoke against it in TV and radio interviews. I thought it poor public policy to put more concealed guns in cars and pockets. My viewpoint lost. The legislature passed the law in spite of my vocal opposition. So be it. As a prosecutor, I am now focusing on enforcing the penalty provisions of the new law.

I should also say that Judge Steven R. Ohmer, the judge who issued the ruling, is one of my favorite jurists. I've met him at legal education seminars. He is a wise and friendly person, so wise that he sent me this note after reading my recently published novel: "I thoroughly enjoyed 'The Gold of Cape Girardeau.' I love historical works and this book struck me as a good combination of Mark Twain, Margaret Mitchell and Shelby Foote. ... The courtroom scenes were great, especially the reference to A. Lincoln."

Judge Ohmer was perhaps familiar with Mark Twain's advice about the three infallible ways of pleasing an author: 1. Tell him you have read one of his books. 2. Tell him you have read all of his books. 3. Ask him to let you read the manuscript of his forthcoming book. The first admits you to his respect. The second admits you to his admiration. The third carries you clear into his heart.

So, as I said, Judge Ohmer ranks high in the Swingle Parthenon of Outstanding Judges. The man has a good eye for talent, and he will always hold a special place in my heart for that note.

Yet he is wrong on this issue.

In the words of the all-time greatest chief justice, John Marshall, "It is a Constitution we are expounding." A constitution is the highest law of the land, serving as a check on the legislative and executive branches, to prevent them from taking away the rights of the people -- freedoms preserved in the Bill of Rights.

The general public is far more familiar with the U.S. Constitution than the Missouri Constitution. Both, however, contain a Bill of Rights. Missouri's grants certain rights to our citizens, including, among others, freedom of religion, freedom of speech, freedom from unreasonable searches and seizures, freedom against self-incrimination and the freedom to keep and bear firearms.

The constitution, though, is intended to prevent rights from being taken away from citizens by the legislature or the executive branch. It is not intended to take away those citizens' rights itself.

The provision giving Missouri citizens the right to keep and bear arms is succinct: "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."

In other words, the legislature cannot write a law forbidding a citizen from keeping or bearing arms, except that it can write a law prohibiting the carrying of concealed weapons. Such a law has been on the books in Missouri for over a century.

Similarly, the provision on religious freedom reads: "That all men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; that no human authority can control or interfere with the rights of conscience; that no person shall, on account of his religious persuasion or belief, be rendered ineligible to any public office or trust or profit in this state, be disqualified from testifying or serving as a juror, or be molested in his person or estate; but this section shall not be construed to excuse acts of licentiousness, nor to justify practices inconsistent with the good order, peace or safety of the state, or with the rights of others."

Obviously, this provision means that the legislature cannot pass laws barring Methodists or Jews from holding public office, nor prohibit Muslims from voting. Yet the disclaimer at the end means that the legislature could write a law barring certain acts of licentiousness, without running afoul of the Missouri Constitution. The Missouri bigamy statute, for instance, makes it a crime to have more than one spouse. A bigamist cannot avoid prosecution by claiming his religion required him to have more than one wife. Likewise, church members playing loud music in the middle of the street at odd hours have been prosecuted successfully for disturbing the peace.

The last 10 words of the firearms provision in the Missouri Constitution do not mean carrying concealed weapons is unconstitutional. Rather, they only mean that banning the carrying of concealed weapons is something the legislature can do without acting unconstitutionally, just as it can ban polygamy, snake-handling, child-molestation, human sacrifice or other practices that a particular church might argue were part of its religious services.

I expect the Missouri Supreme Court will overrule Judge Ohmer, and I expect that this will happen rather quickly. Although I didn't like the concealed weapons law, I like a wrong reading of the Missouri Constitution even less.

Besides, I might want to be licentious some day.

Morley Swingle is the prosecuting attorney of Cape Girardeau County.

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