Supreme Court issues split ruling on concealed guns law

Thursday, February 26, 2004

The Associated Press

JEFFERSON CITY, Mo. -- Missourians won the right to carry concealed guns Thursday, but it's unclear whether they will be able to do it anytime soon.

That's because the Missouri Supreme Court said the state's concealed weapons law could amount to an unconstitutional, unfunded mandate -- a state-imposed program that requires county governments to pick up the tab.

In a 5-2 ruling, the state's highest court upheld the constitutional ability of lawmakers to authorize concealed guns, but said the law does not have to be enforced in four counties where it was shown to impose an unfunded mandate.

The ruling opens the way for similar cost claims to be made in other counties, raising the possibility of a piecemeal enforcement of the contentious new law.

Attorney General Jay Nixon said sheriffs could legally issue concealed gun permits, but he suggested they wait until the Legislature fixes the unfunded mandate issue.

"While that legal right may exist in certain counties (to get concealed gun permits), so does the legal right of those to muck us up with another 100 lawsuits," Nixon said.

The immediate practical effect of the ruling was unclear. Some sheriffs pledged to start issuing permits, while an attorney for concealed gun opponents promised a lawsuit if they did.

"Any county in the state of Missouri that attempts to implement the conceal and carry law will be challenged in the Missouri courts," said St. Louis attorney Burton Newman.

Laclede County Sheriff Richard Wrinkle said he would start issuing concealed gun permits Monday. In Camden County -- one of the four counties freed from following the law -- Sheriff John Page said he plans to begin issuing permits anyway within the next week. Yet officials in St. Louis and elsewhere said they planned to wait, and potentially pursue their own lawsuits seeking to spare them of the unfunded duty.

The ruling left some lawmen baffled about how to proceed: "You have 114 poor sheriffs out here trying to figure out this mess," said veteran Sheriff John Hemeyer, of Cole County, the seat of state government at Jefferson City.

Within hours of the Supreme Court ruling, Boone County firearms instructor Tim Oliver said he was receiving a steady stream of phone calls from people wanting to take the training courses needed to obtain a permit.

Enacted when legislators overrode Democratic Gov. Bob Holden's veto, the law allows Missourians age 23 and older to receive concealed gun permits from their local sheriffs after passing criminal background checks, firearms training courses and paying a fee of up to $100.

The law also entitles Missourians age 21 and older to conceal guns in their vehicles without need of a permit. That portion of the law was untouched by the Supreme Court's ruling.

The National Rifle Association declared the ruling "a big victory for law-abiding gun owners." The NRA was a chief financial backer of a nationally unique, 1999 statewide ballot proposal in which Missouri voters narrowly rejected concealed guns.

Kansas City attorney Richard Miller, who represented the plaintiffs, agreed the ruling upholds the Legislature's right to allow concealed guns, but said "the effect either way is that the law as written is unconstitutional in Missouri" because of the unfunded mandates.

St. Louis Circuit Judge Steven Ohmer blocked the law on Oct. 10 -- one day before its effective date -- on grounds it violated a constitutional provision granting Missourians the right to bear arms and stating: "but this shall not justify the wearing of concealed weapons."

Ohmer, siding with concealed gun opponents, interpreted the provision as an outright prohibition on concealed guns. But the Supreme Court said his interpretation was wrong.

"There is no 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," Judge Stephen Limbaugh Jr. wrote for the majority. "Consequently, the General Assembly ... has the final say in the use and regulation of concealed guns."

Ohmer had dismissed a separate challenge to the law that claimed it violated the so-called Hancock Amendment of the state Constitution by imposing new duties on local sheriffs without providing enough funding to cover the costs.

The Supreme Court partly overturned that decision, but only in regards to four counties -- Jackson, Cape Girardeau, Greene, and Camden -- where trial evidence had been presented about the local costs. The state's highest court said the issue was not ripe yet for Missouri's other counties, where no cost evidence had been presented.

The concealed guns law requires sheriffs to charge a fee of up to $100 to be deposited into a local fund, which can be spent only on law enforcement equipment and training. The plaintiffs claimed that prohibited sheriffs from using the fees to pay for the required applicant background checks or for the personnel needed to administer the law -- thus constituting an unfunded mandate.

Nixon suggested the law could be fixed by amending it to allow the fees to also be spent on "the costs and time necessary" for sheriffs to administer the law. Lead legislative sponsor Rep. Larry Crawford, R-California, already has filed a bill allowing the fees to go toward "any reasonable expenses related to accepting and processing such (concealed gun permit) applications."

But concealed gun opponents said the proposed legislation was unlikely to end their legal challenges.

Miller said the Supreme Court's ruling left open the possibility of future lawsuits claiming the $100 fee didn't cover sheriff's full costs in some counties or, conversely, provided too much money, potentially making the extra amount an unconstitutional tax not authorized by voters.

He also pointed to a dissenting opinion by Chief Justice Ronnie White, who argued to prohibit enforcement of the law statewide because of the unfunded mandate claim. White cited the constitutional requirement of "full state financing" for newly required county activities, which he said could only be covered by a state appropriation -- not a locally collected fee.

Holden said he continues to oppose the concealed guns law and will "look for other opportunities, either by administrative action or by legislation, that will help provide protection for Missouri citizens."

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