Missouri Court Upholds Statute Against Gun Possession While Intoxicated

Missouri v. Richard was decided earlier this week by the Missouri Supreme Court, solely on the basis of the Missouri Constitution. Missouri law, Section 571.030.1(5) punishes someone who “Possesses or discharges a firearm or projectile weapon while intoxicated.”

Richard did in fact possess a loaded handgun while intoxicated (eventually to the point of unconsciousness) by morphine and amitripyline. He threatened to kill himself with the handgun, and told his wife that if she called the police, he would make the police shoot him.

Richard argued that the statute was overbroad. The Missouri Supreme Court retorted that overbreadth can only be raised in a First Amendment context. (However, some other state courts have applied overbreadth to state constitution arms rights protections. See State v. Blocker, 291 Or. 255, 630 P.2d 824 (1981); City of Lakewood v. Pillow, 180 Colo. 20, 501 P.2d 744 (1972).)

In the 1979 case People v. Garcia, the Supreme Court of Colorado dealt with a similar statute. The ruled that the statute only applied to “actual or physical control.” So if a person is drunk in his living room, and owns a gun which is stored in his downstairs closet, the statute would not apply. The Missouri decision is consistent with the Colorado standard, since Richard actually was possessing the handgun.

The Missouri law, by the way, has an explicit exception for self-defense, and there was no claim in the Richard case that the defendant’s gun possession was for self-defense.

A concurring opinion by Judge Fischer says that the Second Amendment is incorporated via the Due Process clause, and that the Missouri statute does not violate the Second Amendment.