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.
m says:
The court did what while intoxicated?
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November 20, 2009, 6:48 pmAnatid says:
So does this mean that when you come home from the range, after all the ammo is locked away, you still cannot have a beer while you clean your firearm?
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November 20, 2009, 8:06 pmbyomtov says:
Can’t wait to hear why this is unreasonable.
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November 20, 2009, 8:25 pmValentino Rossi says:
Morphine by prescription (Avinza for pain for example) in Illinois = revocation of F.O.I.D. card regardless of whether you even own a weapon. It’s all up to the IL State Police, and when they receive notice about the morphine, bye, bye F.O.I.D. card.
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November 20, 2009, 8:46 pmGuy says:
Truly, that is the very definition of tyranny.
Of course, the states have the authority to tell you that you can’t have a beer ever, if they choose to. Also, “having a beer” isn’t the same thing as being intoxicated.
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November 20, 2009, 9:56 pmAnatid says:
Hey, was just asking for clarification. Thank you.
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November 20, 2009, 10:07 pmOren says:
Indeed, a State with the power to criminalize even the possession of intoxicating beverages surely can exercise the lesser power of criminalizing intoxication concurrent to the possession of a firearm.
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November 20, 2009, 11:55 pmGuy says:
Not to be difficult, but I may have oversimplified the case. Certainly the state couldn’t impose completely arbitrary restrictions (e.g. You can’t be intoxicated while having blue eyes). But I think the inherent danger associated with mixing drunk people with firearms justifies it, not requiring the gun to be loaded can also be justified (if you were drunk, how can we trust that you remember if it’s loaded? Do the police have to know its loaded for probable cause? What’s the mens rea for the being loaded requirement?). The rationales put forward to justify the right to bear arms don’t seem to indicate this is an unjustifiable requirement. Given that most jurisdictions criminalize public drunkenness, or drinking alcohol on the sidewalk, this isn’t really so much an “anti-gun” statute as an “anti-dangerous/threatening drunken behavior” statute. If the statute were interpreted so that possession was merely having it in your house, then there would be real Second Amendment and Equal Protection implications.
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November 21, 2009, 12:52 ambearing says:
It strikes me that the criminalized behavior in question becomes a little more clear and less emotionally fraught if you describe it not as “the state prohibits gun possession while intoxicated,” but “the state prohibits intoxication while possessing a gun.”
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November 21, 2009, 8:16 amOren says:
Guy, I don’t see the RKBA angle at all. As I understand it, if a statute criminalizes (A && B), you must prove that you have the ( RightTo(A) && RightTo(B) ) to overturn the statute as unconstitutional. Since you do not have the right to be drunk under any circumstances, your RKBA doesn’t enter the discussion.
Of course, the rational basis test applies to separately to all laws, even if there is no right in question, so your blue eyes example fails but not in a way that helps your argument. The RBT and the RKBA are logically separate inquiries.
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November 21, 2009, 8:42 amBrett Bellmore says:
I think the point here is that since the RKBA IS a “right”, it can’t be denied on the basis of normal life activities. The real question here is the extent of the “possession” required to trigger the ban: If it’s ‘constructive’ possession, I think we’re into constitutionally problematic territory. If it’s “the gun was in his hand” possession, probably not.
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November 21, 2009, 9:24 amanomdebus says:
So if threatening yourself is the same as threatening someone else, perhaps destroying your own property should be the same as destroying someone else’s. Cigar smokers beware :)
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November 21, 2009, 12:43 pmSeaDrive says:
Why would the perpetrator lose the right to own a firearm rather than losing the right to be intoxicated?
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November 21, 2009, 1:21 pmPintler says:
I think the people who need to beware of the law in question are the Missouri LEOs. The law in question doesn’t contain an exemption for them, and I’ll bet there is a bar frequented by police somewhere in St. Louis where being intoxicated while armed is common :-).
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November 21, 2009, 2:06 pmFlashman says:
Our county sheriff was arrested DUI and was carrying his firearm in his official vehicle at the time of the arrest. He refused to do any voluntary roadside maneuvers and refused to submit to either a blood or breath test as required by Colorado law. Several months later he had a two day trial (for a traffic misdemeanor no less) and was convicted on the lesser charge of Driving While Ability Impaired (DWAI) and Prohibited Use of a Weapon, i.e., carrying a firearm while “under the influence of intoxicating liquor.” He eventually lost his license for over a year (because of other traffic violations which added to the time). He never appealed, to the best of my knowledge. What made this interesting was the different standards of “under the influence of intoxicating liquor” used for the criminal charge (Prohibited Use) and the driving charge (DUI/DWAI). Without knowing exactly what his BAC was on the night of the arrest, the jury still convicted for both offenses, i.e., he wasn’t “under the influence” on the night of the offense, but was driving ability was “impaired.” The original reason for the stop? Failure to dim his headlights.
Before the arrest, reports had surfaced that he and the undersheriff had reportedly been seen frequenting local celebrations, drinking, and carrying their firearms. I witnessed this behavior on at least one occasion. At least one Colorado jury has found this behavior to be illegal when given the opportunity to judge.
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November 21, 2009, 2:45 pmChrisTS says:
I thought the OP specifically noted that one had to be intoxicated and armed at the same time.
I think the interesting question is what the legislature intended in passing this law. Was the idea that this would make it easier to gain control over people inclined to be both intoxicated & wield a weapon?
It is difficult to see how this has much deterrence value, unless one thinks that people who know they are likely to become intoxicated will give up/not purchase arms
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November 21, 2009, 9:35 pmOren says:
The RKBA isn’t being infringed. People are losing the right (they never had) to get drunk.
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November 22, 2009, 10:24 amTim Nuccio says:
That was what I was thinking.
Basically, I can’t get drunk in my own house because it contains firearms? So even if all of my guns are locked up in the safe, I can’t get drunk in my own home?
Something seems very, very wrong with that law. I’m not even going to try to make a legal argument. I’m going to pull a Posner and merely say that my intuition suggests that something isn’t right about that.
Are there any other inanimate objects that may or may not be in my house that prevent me from engaging in any activities? For example, does the law prohibit fornication if my home contains a cat, a microwave oven, or a personal computer?
With all due respect, Professor, I understand your political viewpoint on “rights,” and yet I’m very confused as to how this is defensible conduct on behalf of the state.
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November 22, 2009, 6:22 pmarbitraryaardvark says:
There are eight things wrong with this law. — Volohk’s maxim.
The missouri court did decide his second amendment argument, which had won him dismissal at the trial court.
I prefer the concurring opinion’s take on that issue.
There’s still time for the trial and appeal, if McDonald says anything useful here. At trial, it should be possible for this guy to raise self defense claims. He reasonably believed a bunch of guys with guns were coming to his house to have a confrontation with him — he was right. That’s why the right to bear arms was enacted in 1689.
Can the legislature make it a crime to possess a bible while intoxicated?
Intoxication and guns have a long history in the usa and in Missouri. Being part of the militia didn’t just mean keeping a gun, it meant showing up once a month for muster. During long periods of peacetime, the monthly musters degenerated into a drinkfest. So banning intoxication and guns together would interfere in the militia at least as it was historically practiced, and would “question” the right to bear arms, which the missouri constitution prohibits.
Things we dont know — why did this guy have morphine?
He wasn’t arrested for morphine possession.
If it is prescribed by a doctor for some valid reason, that’s different than voluntary intoxication of the go to the bar get drunk mode.
This decision could be more bad news for the missouri economy. I can think of several Columbia MO business that may be affected — the “liquor guns & ammo” shop, and the silver bullet saloon, where the weapons policy is “check your weapons at the door, if you don’t have one we’ll lend you one.”
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November 22, 2009, 7:12 pmreadery says:
Well, the facts of the case indicate that after threatening his wife that he would shoot the gun off in the house and blow himself up, she called the police, who found him holding on to the loaded gun while intoxicated.
It seems to me that questions like whether the law covers a case where the gun is merely in a locked case in the basement while you have a beer in the living room will have to wait another day. This simply isn’t that case. This is a case where a person was not only holding a gun but threatening to shoot it (and not in self-defense).
I don’t think there’s any question about the law having a rational basis, and as noted under the Prohibition repealer the states have special powers to regulate alcohol and drunkenness as they see fit.
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November 22, 2009, 11:32 pmPintler says:
You have the 2x2 box, someone was drunk/sober and did/did not do something wrong with a gun, so you have 4 situations drunk/notbad, sober/notbad, drunk/bad, sober/bad.
Two of these (drunk/bad and sober/bad) can be punished without this law (as in this case). We don’t want to punish sober/notbad, so this law only affects drunk/notbad.
While I can’t get my knickers in a twist about the law, I’m not sure someone who is a peaceful armed drunk worries me any more than someone who is armed, angry, and sober — and you can certainly construct hypotheticals where enforcing such a law would be unwise (“After surviving only because his vest stopped three rounds, Officer Smith clocked out, went home, had a stiff glass of whiskey and laid down on the couch until the shakes went away, without securing his weapon first”). Unwise, but criminal, without also doing something inappropriate with the weapon?
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November 23, 2009, 8:04 amWhat’s that Smell? « Conservative Libertarian Outpost says:
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