Mo. high court to hear gun-rights case

JEFFERSON CITY, Mo. -- Just months after Missouri voters approved stronger constitutional gun rights, the new amendment is being put to the test by a convicted drug dealer who is citing it as a reason why his former felony shouldn't disqualify him from carrying a gun.

The Missouri Supreme Court is to hear arguments Tuesday on whether the new constitutional provision subjecting gun-control laws to strict legal scrutiny means that Missouri can no longer bar nonviolent felons from possessing firearms.

In an unusual move, the legislative sponsor of the constitutional amendment has filed his own legal brief with the court. State Sen. Kurt Schaefer argues that his measure was meant to enhance gun rights, but not by as much as is being claimed in court.

Because of the specific details of the case, the Supreme Court could decide whether Marcus Merritt can face charges of being a felon in possession of firearms without ever addressing the broader issue of whether Missouri's new constitutional provision invalidates a state law criminalizing gun possession by nonviolent felons.

But Attorney General Chris Koster's office is urging the court to settle the larger matter.

"There is substantial confusion among law enforcement officers, prosecutors, and circuit courts regarding whether [the felon firearm law] may still be enforced against non-violent-felony convicts," assistant attorney general Jennifer Rodewald wrote in a court brief. She added: "By addressing it now, this Court can spare police, prosecutors, and judges months of uncertainty."

Missouri voters in August approved Constitutional Amendment 5 with greater than 60 percent support. It states that any tenentstions on the right to keep and bear arms "shall be subject to strict scrutiny," but adds that the measure should not be construed to prevent laws limiting the gun rights of "convicted violent felons" or people determined by a court to be a danger because of mental illness. The measure now is part of Article 1, Section 23, of the Missouri Constitution.

In January 2013, Merritt was charged with drug possession and three counts of being a felon in possession of a firearm for having a revolver, shotgun and rifle. The gun charges were based on the fact that Merritt had been convicted in federal court in 1986 for felony drug distribution.

Merritt's attorney sought to dismiss the firearm-possession charges, arguing that the law in effect in 1986 only made it a crime for people convicted of "dangerous" felonies to possess firearms. He said a 2008 change that extended the firearm ban to all felons should not be applied retroactively. Merritt's attorney also argued the felon-firearm ban violated Missouri's constitutional gun-rights provision in place at the time, because it was an absolute prohibition and not a "reasonable time, place or manner restriction."

In July 2013, St. Louis Circuit Judge John Garvey Jr. dismissed the firearm possession charges against Merritt. The judge didn't say exactly why he did so, the attorney general's office argues in its appeal.

The new constitutional gun rights provision took effect Sept. 5, a month after voter approval. Merritt's attorney says it should apply to his case, because it was under appeal.

Based on the constitution's new "strict scrutiny" requirement, "the state does not have a compelling government interest in banning all convicted felons under all circumstances from possessing firearms for life," Merritt's attorney, Assistant Public Defender Matthew Huckeby, wrote in a Supreme Court brief.

The attorney general's office argues that the felon-firearm prohibition should be upheld as a narrowly tailored restriction that promotes public safety.

Schaefer, a Republican from Columbia who is running for attorney general, urged the court in a written brief to uphold the prohibition on felons possessing firearms. He argued that felons aren't truly "citizens" and thus shouldn't receive gun-rights protections.

The constitutional amendment was intended "to protect the rights of law-abiding citizens to possess arms in lawful defense, not to restore the rights of all felons through blanket legislative fiat," Schaefer wrote.

Schaefer said the measure's specific allowance for laws limiting the gun rights of violent felons was not meant to imply that guns couldn't also be restricted for nonviolent felons.

"Obviously, the purpose is to strengthen the right to keep and bear arms," Schaefer said. "But this concept that somehow somebody can't be charged with a felon in possession, that's absolutely ludicrous."