Brief Overview of Right to Bear Arms in MO

 

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.---  Mo. Const. Art. I, § 23

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.---  U.S. Constitution, 2nd Amendment

  • Blackstone's "Commentaries" on the right of defense:

"...it is indeed, a public allowance under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression... "

  • Division between harm to property, which the law can 'make whole' and
  • Threats to life and limb, which the law cannot repair;
  • Ability, Oportunity, Jeopardy - 3 factors defining lawful defense;
  • Vigilantism is extrajudicial violence: doesn't matter whether commited by State or individual;

 

  • State authority to regulate time, place, and manner (e.g. Heidbrink v. Swope)
  • Tension between Right and regulation;
  • Regulation may not effectively prohibit RTKBA or self-defense (e.g. Peruta vs. San Diego);

 

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Selected Missouri Case Law

  1. Mo. Rev. Stat. § 571.030.1(5) represented a reasonable exercise of the legislative prerogative to preserve public safety by regulating the possession of firearms by intoxicated individuals; the alleged facts constituted a violation of § 571.030.1(5) and were within the power of legislative regulation under the police power. State v. Richard, 298 S.W.3d 529, 2009 Mo. LEXIS 531 (Mo. 2009).
  2. Court erred in denying a sheriff's motion to compel discovery in an action for a concealed firearm permit because discovery did not violate Mo. Const. art. I, § 23 by questioning the applicant's right to keep and bear arms. The applicant had a duty to cooperate in the investigation of his fitness to obtain a concealed firearm permit; the sheriff had a right to discovery and examination of the applicant at trial. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  3. Missouri courts recognize that Mo. Const. art. I, § 23 does not deprive the legislature of the authority to regulate the time, place, and manner of bearing firearms. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  4. Traditionally worded provision in Mo. Const. art. I, § 23 that the right to keep and bear arms shall not be questioned merely establishes that such right is beyond question. It in no way implies that an applicant for a firearm shall not be questioned. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  5. Mo. Const. art. I, § 23 states that the existence of a right to keep and bear arms shall be beyond question; the provision does not suggest that the scope of the right can never be questioned. Missouri courts have held that the right is not absolute. Heidbrink v. Swope, 170 S.W.3d 13, 2005 Mo. App. LEXIS 715 (Mo. Ct. App. 2005), transfer denied by 2005 Mo. LEXIS 376 (Mo. Sept. 20, 2005).
  6. As the Missouri legislature chose not to substantially restore a felon's right to bear arms under Mo. Const. art. I, § 23, defendant's state felony convictions were proper predicates for 18 U.S.C. § 922(g)(1). United States v. Brown, 408 F.3d 1016, 2005 U.S. App. LEXIS 8059 (8th Cir. Mo. 2005).
  7. Finding that the Concealed-Carry Act was unconstitutional was improper pursuant to Mo. Const. art. I, § 23, where there was only a constitutional prohibition against invoking the right to keep and bear arms to justify the wearing of concealed weapons. Brooks v. State, 128 S.W.3d 844, 2004 Mo. LEXIS 26 (Mo. 2004).
  8. 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. Consequently, the general assembly, which has 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. Accordingly, the Concealed-Carry Act, Mo. Rev. Stat. § 50.535, Mo. Rev. Stat. § 571.030, and former Mo. Rev. Stat. § 571.094 (now Mo. Rev. Stat. § 571.101), is not unconstitutional under Mo. Const. art. I, § 23. Brooks v. State, 128 S.W.3d 844, 2004 Mo. LEXIS 26 (Mo. 2004).
  9. City ordinance that prohibited possession of a lethal weapon was authorized by Mo. Rev. Stat. § 21.750 and did not contravene Mo. Const. art. I, § 23 because while the constitution declared that every citizen had the right to bear arms in defense of himself, there was no express or implied denial to the legislature of the right to enact laws in regard to the manner in which arms were borne. City of Cape Girardeau v. Joyce, 884 S.W.2d 33, 1994 Mo. App. LEXIS 1151 (Mo. Ct. App. 1994).
  10. Mo. Rev. Stat. § 571.030.1(5) represented a reasonable exercise of the legislative prerogative to preserve public safety by regulating the possession of firearms by intoxicated individuals; the alleged facts constituted a violation of § 571.030.1(5) and were within the power of legislative regulation under the police power. State v. Richard, 298 S.W.3d 529, 2009 Mo. LEXIS 531 (Mo. 2009).
  11. Mo. Rev. Stat. §§ 67.1830 to 67.1846 did not violate Mo. Const. art. I, § 23, because the title of the act sufficiently put a city on notice that the statute impacted regulations that dealt with municipal rights-of-way. XO Mo., Inc. v. City of Md. Heights, 256 F. Supp. 2d 976, 2003 U.S. Dist. LEXIS 8579 (E.D. Mo. 2003).