Let's Interpret Missouri's Constitution [Concealed Weapons Law]

Great Debates
#1

This spring, the Missouri Legislature passed a law permitting citizens to carry concealed weapons. They then overrode the governor’s veto.

One day before the law was scheduled to go into effect, a state judge blocked the law, agreeing with a complaint that the law violated the Missouri Constitution.

Here’s the relevant cite:
**Section 23. 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. **

This language was taken and modified slightly from the styate’s 1875 Constitution. Earlier versions did not say anything at all about concealed weapons.

Now, let’s play Missouri Supreme Court Justice. When this case winds up in your lap, do you interpret the section to mean

a) this section provides no specific justification to carry concealed weapons, but certainly the Legislature can make a specific law about it, or

b) the framers of the Constitution in 1875 meant, and reaffirmed in 1945, “no concealed weapons, period.”

Depending on how this suit comes out, maybe we’ll get to play U.S. Supreme Court justice later on.

#2

That’s a pretty simple construction. The section quoted recognizes the right of the people to own weapons, but specifically says it does not grant them permission to carry those weapons in a concealed manner (CC, here after). This means only that you can not justify CC by citing Section 23.

The section says absolutely nothing that can be construed to deny the legislature the ability to allow CC. Any attempt to block this must be done through some other clause or section of the state constitution. This is clearly a last-ditch effort by anti-gun partisans to deny the people of Missouri the ability to protect themselves as they see fit.

Unfortunately, even if the state supreme court rules against the legislation, it would not make a good 2nd amendment case for SCOTUS as they will merely be interpreting the state constitution.

#3

No chance. The U.S. Supreme Court has no authority to interpret state law, and this case apparently presents no issues of federal law that the Court could resolve.

As for your main question, the provision seems to say that the contsitution does not authorize concealed weapons, but it does not appear to prohibit concealed weapons. One wonders whether there are any contemporaneous debates or other records supporting the latter “prohibition” interpretation, 'cause otherwise I’m not really seeing it.

#4

Not being a party to the suit, or a lawyer, I can’t say for sure. But I’m pretty sure both sides of the argument are running through the basement of the state capitol right now, trying to find some documentation to bolster their arguments.

And not to quibble over the minor point, but doesn’t SCOTUS have the power to overthrow a section of a state Constitution when it conflicts with their interpretation of the federal Constitution? The 1954 Brown vs. Board of Education blew the “separate but equal” clause right out of the Missouri Constitution. If the Missouri Supreme Court found against concealed carry, would the supporters have grounds to appeal Section 23 as violating the 2nd Amendment?

#5

That was the Topeka Board of Education. So, it was Kansas; however, having not read anything but the generalities of the case, I don’t know if it had anything to do with a provision of the Kansas State Constitution.

#6

Part of the judge’s reasoning for blocking the law:

From this site (Registration needed.)

Authorial intent, I think, is his point. Am I wrong?

#7

It didn’t. Brown effectively overruled Plessy v. Ferguson, which had established “separate but equal” as a feature of the federal constitution’s fourteenth amendment equal protection clause.

#8

Thanks, Dewey.

#9

I would think that if this interpretation of the Missouri Constitution’s Section 23 is upheld, it could lead to some rather weird consequences. The current Missouri law on concealed weapons says:

The state constitution doesn’t say “…this shall not justify the wearing of concealed weapons, except for cops and other official-type people”. This ruling could make it kind of tough to be an undercover cop in Missouri.

#10

kunilo

I’m going to go out on a limb here and predict that minty green will reply with something to the effect that it is true that SCOTUS does indeed have this power, but that there is virtually no chance of them interpreting the federal Constitution in a manner that conflicts with the state Constitution, even if the latter is interpreted as banning concealed weapons. But on reading MEBuckner’s post, I see that there is perhaps a federal issue that is not immediately obvious: if concealed weapons are found to be Constitutionally prohibited, what happens to a federal officer found to be carrying a concealed weapon?

DCU

I suppose with the word “effectively”, this is true, but my understanding is that technically it didn’t overrule Ferguson; Plessy held that separate but equal is Constitutional; Brown held that separate was not equal, so Plessy did not apply. So separate bathrooms for men and women aren’t in much danger of being held unConstitutional, because in that case separate does not automatically make them unequal. If one day the race relations in this country become such that segregating blacks and whites into separate school can be done without anyone feeling that it is being done for dicriminatory, racist, or otherwise nefarious reasons, then Brown would not prohibit such a policy.

PS it says “wearing” concealed weapons. Would carrying a concealed weapon in one’s purse be considered “wearing”?

#11

Well, yeah. That’s why I put the word “effectively” in there – the court did not say outright that Plessy was no longer good law.

But even without the “effectively,” I think it reasonably accurate to say that Brown overruled Plessy; to say otherwise is to get into angels-on-the-heads-of-pins territory. As a practical matter, Plessy is a dead letter. Brown specifically holds that “in the field of public education the doctrine of ‘separate but equal’ has no place” and that “[s]eparate educational facilities are inherently unequal.” The court may not have said “we overrule Plessy insofar as education is concerned,” but they might as well have.

A good rule-of-thumb test for whether a case has been de facto overruled: ask some competent lawyers if they’d ever in a million years consider citing it as precedent in a brief. I double-dog dare anyone practicing law to cite Plessy as a controlling authority in a court filing. **

Separate bathrooms for different genders wouldn’t be in danger even if Plessy had in fact been overturned outright. Gender classifications are not subjected to the same strict scrutiny analysis as classifications based on race, and neither Plessy nor Brown are understood as extending beyond racial classifications. **

Actually, the motives behind a segregationist policy have very little to do with analysis under Brown. All that matters for Brown purposes is that educational services are equal in every way, including intangibles like the psychological impact of segregation on both sets of students. Brown basically says that, as a matter of law, it is impossible to construct such a system in a segregated environment.

Not to mention that, even if you somehow miraculously survive scrutiny under Brown, you’ve got Bolling v. Sharpe waiting in the wings to bite you in the ass. Bolling is a companion case to Brown, decided the same day but dealing with the D.C. school district. Since the fourteenth amendment – and thus the equal protection clause – only applies to the states, the court couldn’t use that to end segregation in the D.C. schools. So they just used 5th amendment due process to do the same thing.

#12

Moderator’s Note: Oh, yeah, I got sidetracked looking stuff up in the Missouri statutes and forgot I was going to edit the thread title a bit…

#13

Sure, fine, whatever. Except that it totally misses the point, which is that “this case apparently presents no issues of federal law that the Court could resolve.” Unless the parties are claiming that the Second Amendment or some other federal law protects the right to carry concealed weapons–which would be a basically frivolous claim–there is no federal issue that the Supreme Court could resolve.

Courts do not just decide to determine issues on their own initiative. They resolve the issues that the parties present to them.

#14

Section 23. 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 don’t get me wrong this law shall not justify the wearing of concealed weapons or anything like that. **

Such wishee washee language from the “show me” state. Talk about mealy mouthed, ambiguous language! Harry Truman rolls in his dark dank grave.

And** The Ryan** is right…the state of being “concealed” is relative to the viewer and is transitory to any object. This clumsy wording inclusion in the Missouri Constitution should give fun and frolic to idle Missourian lawyers for years to come. The sins of our forefathers revisit us. What a joke.

*(The wording above in **red *has been slightly modified by me for effect.)