Firearms Law CLE 2016

Kevin L. Jamison
2614 NE 56 th Ter
Gladstone, MO. 64119
(816) 455-2669
FAX (816) 413-0696
KLJamisonLaw@earthlink.net
www.KLJamisonLaw.com

LEGAL DEVELOPMENTS

AMENDMENT 5 TO ARTICLE We SECTION 23

Article I section 23 of the Missouri Constitution was amended by Amendment 5 to make the right to keep and bear arms "unalienable." Restrictions on the right are subject to "strict scrutiny." Suit was filed over the ballot language. The Supreme Court ruled that the ballot language was sufficient on 30 June, 2015 in Dotson v Kander. The change to Article I section 23 states that these unalienable rights did not apply to violent felons or person adjudicated to be a danger to themselves or others. Certain optimistic persons appealed state convictions for being a felon in possession of firearms under the new constitutional provision. The Dotson decision stated that "The right to bear arms 'is not unlimited' and there are still 'longstanding prohibitions on the possession of firearms by felons and the mentally ill,. . ."

On 18 August, 2015 Missouri's Supreme Court ruled directly on this point in State v Merritt and State v McCoy. Both decisions upheld the state law prohibiting firearms possession by non-violent felons. Since then the Court has heard appeals by even more optimistic persons that the law prohibiting felons from possessing guns is unconstitutional because they were not arrested until after Amendment 5 was adopted. On 9 February, 2016 the Court ruled in State v Robinson and State v Lomax that Amendment 5 did not save them from a Felon in Possession charge because their crimes were committed before the date of the amendment. Also on 9 February, 2016 the Court ruled in State v Clay that the new constitutional language changed nothing and that it had always given firearms cases strict scrutiny. That did not save Mr. Clay. Mr. Clay had been convicted of a felony after the adoption of Amendment 5. He was later arrested for possession of a firearm and charged with being a Felon in Possession under RSMo 571.070. The Court ruled that the state has a compelling interest in not allowing felonys to possess firearms and that the law was Constitutional as applied to Mr. Clay.

This makes a total of six cases in which the Court has ruled that Amendment 5 changed nothing as far as felons possessing firearms. If the same argument comes to the court again the decision may start out "Listen stupid . . . "

CONCEALED CARRY RECIPROCITY

Missouri lost concealed carry reciprocity with several states when it reduced the qualifying age to 19. Virginia has abolished reciprocity with almost all other states. The Virginia legislature may change this back. Missouri continues to recognize the licenses of these states even when they do not recognize ours. Of the states bordering Missouri, only Illinois does not recognize our license. Every state has its own peculiarities which must be followed when in that state. Travelers must consult www.Handgunlaw.us before crossing a state line. Travelers can carry firearms through all 50 states Puerto Rico and Guam under 18 U.S. Code Section 926A if the gun is unloaded and in a locked container not accessible from the passenger compartment of the vehicle AND possession of the gun is legal at the start of the journey and the intended destination. Unfortunately, certain jurisdictions have considered trivial interruptions in the journey to end the traveler's status and make possession of the gun illegal. Two cases out of New Jersey found a traveler stopping at the side of the road to take a nap. The judge found that the nap made them no longer a traveler and they were sentenced to five years in prison. Travelers have been diverted to airports where possession of their gun is not legal. When they try to check onto the new aircraft they have been arrested for illegal possession of firearms. So far the courts of appeal have upheld this nonsense.

POST OFFICE

18 U.S. Code Section 930 prohibits possession of firearms in a federal facility except for hunting or other lawful purposes. Post Office regulations at 39 CFR 232.1 bans possession on postal property. The post office interprets this as prohibiting guns left locked in cars on postal property. A postal employee was convicted under this interpretation. 1 The interpretation was challenged in Colorado, but denied by the 10 th Circuit. 2 The matter has been presented to the US Supreme Court. With two circuits in agreement and no circuit in disagreement it is highly unlikely that the Supreme Court will review the question. Mere possession is punishable by a fine or imprisonment for up to one year under 18 U.S. Code Section 930.


[1] United States v Dorosan. 5 th Circuit 14 October, 2009. The opinion is unpublished. Author has a copy.

[2] Tab Bonidy v United States Postal Service, 790 F.3d 1121 (10 th Circuit 2015).