Missouri AG Argues Against Right to Have Arms in Home if Intoxicated

Missouri AG Argues Against Right to Have Arms in Home if Intoxicated

This is a discussion on Missouri AG Argues Against Right to Have Arms in Home if Intoxicated within the The Second Amendment & Gun Legislation Discussion forums, part of the Related Topics category; In the Missouri Supreme Court September 30, 2009 Case Summary for September 30, 2009 SC89832 State of Missouri v. John L. Richard Mississippi and Scott ...

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  1. #1
    Distinguished Member Array tiwee's Avatar
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    Missouri AG Argues Against Right to Have Arms in Home if Intoxicated

    In the Missouri Supreme Court September 30, 2009

    Case Summary for September 30, 2009
    SC89832
    State of Missouri v. John L. Richard
    Mississippi and Scott counties
    Constitutional validity of statute affecting right to bear arms

    In November 2006, Wife told Husband she was leaving him. Husband then told Wife that he was going to shoot himself in the head with his gun and that if she called the police, he would go outside with his gun and make the police shoot him. He then took some of his prescribed morphine pills and a drug prescribed for migraines or depression. Wife called the police. By the time the police arrived, Husband was sitting unconscious in a chair with his loaded 9mm gun and an additional loaded clip in his shoulder holster. In March 2007, the state charged Husband with possessing a loaded firearm while intoxicated pursuant to section 571.030(5), RSMo. Husband moved to dismiss the charge, arguing the statute violated his Second Amendment rights. The circuit court dismissed the charge, finding the statute is unconstitutional to the extent it prevents a citizen from possessing a firearm in his or her home while he or she may be legally intoxicated. The state appeals.

    The state argues the circuit court erred in dismissing the charge on the grounds that section 571.030.1(5), is unconstitutional, arguing the statute does not violate the Second Amendment of the United States Constitution or article I, section 23 of the Missouri Constitution. It contends the statute is a valid exercise of the state's police power in regulating gun possession for the purpose of protecting the health, safety and welfare of Missouri citizens. The state asserts the statute was constitutional as applied to Husband because he was intoxicated and in possession of a loaded firearm, had threatened himself and others, and was not using the gun in self-defense.

    Husband responds section 571.030.1(5) is unconstitutional because it violates his Second Amendment right from the United State Constitution and article I, section 23 of the Missouri Constitution. He asserts the statute is overbroad and is unconstitutional as applied to him, who was asleep at home while holding a firearm after taking prescription medicine.
    Section 571-030 Unlawful use of weapons--exceptions--pe

    From the State Law:
    Unlawful use of weapons--exceptions--penalties.

    571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:

    (1) Carries concealed upon or about his or her person a knife, a firearm, a blackjack or any other weapon readily capable of lethal use; or

    (2) Sets a spring gun; or

    (3) Discharges or shoots a firearm into a dwelling house, a railroad train, boat, aircraft, or motor vehicle as defined in section 302.010, RSMo, or any building or structure used for the assembling of people; or

    (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or

    (5) Possesses or discharges a firearm or projectile weapon while intoxicated; or ...
    There you have it. Missouri Attorney General Khris Koster may be required to support the legislature in cases before the court, but I think a man clever enough to be a lawyer could figure out this law should not be applied to guns in a home.

    Attorney General Koster has an office phone 1(573) 751-3321. The three people I talked to were unable to give me the case number or comment on the case. I was able to discover the information on my own.

    The Attorney General has a web site, but I was unable to find an email address other than for a consumer complaint. Apparently he wants to hear from us if a company is ripping us off financially, but not if he is ripping us off constitutionally. Missouri Attorney General


  2. #2
    Distinguished Member Array tinkerinWstuff's Avatar
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    I think if a person wants to be drunk and splatter his brains on the wall of his own home then the state has no business stepping in.

    If he threatens his wife or others with his gun then you have plenty of other charges regardless of whether he's in his home or the corner bar.
    "Run for your life from the man who tells you that money is evil. That sentence is the leper's bell of an approaching looter. So long as men live together on earth and need means to deal with one another-their only substitute, if they abandon money, is the muzzle of a gun."

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    Agree.

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    Ex Member Array BikerRN's Avatar
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    The guns while intoxicated should not IMHO apply to one's the interior boundry of one's castle.

    You could argue however that once he went outside, nevermind the criminal acts committed against the spouse that already give law enforcement enough reason to arrest him, he was a danger to the public by being in a publicly accessable place. Most yards are accessable to the public and thus the law would and should apply.

    I'm not a lawyer, just someone that has seen a fair bit, and that's my opinion.

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    DM2
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    I have mixed feelings on this. On the one hand, I believe in a person's home being their castle and should feel safe to do whatever they please as long as it does not harm someone else or put others in harms way.

    On the other hand, I grew up in an environment that tended to get pretty ugly when some of the adults in my home started to drink. Furthermore, most of that ugliness was directed toward me and I still live with the pain of the words and deeds during those episodes. So I know firsthand what can happen behind closed doors.

    That being said, any substance like alcohol, anti-depressant drugs, illegal drugs,etc., has the potential to make a person unstable. When that instability leads to one becoming violent towards others there are already laws to cover those situations. I don't see the need for additional laws. Let's not hide behind the second amendment or try to reverse laws when we do wrong just so we don't have to suffer the consequences of our actions.
    Last edited by DM2; September 30th, 2009 at 06:06 PM.
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    Distinguished Member Array tiwee's Avatar
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    Tinker, Backroad, Biker and DM2 have nailed it. The AG had plenty of viable charges to argue that would not have set up an opportunity for the Missouri Supreme Court to rule on having guns in your home while intoxicated or medicated.

    By selecting:
    (5) Possesses or discharges a firearm or projectile weapon while intoxicated... ,
    the AG puts the Missouri Supreme Court in position to get inside a home of a known gun owner that has been medicated or is intoxicated.

    Of course this is a lot of speculation, but the choice of this charge when so many other elements of the law could have been used caught my attention. Surely, the Missouri Supreme Court will not rule for the state in this case.

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    Quote Originally Posted by BikerRN View Post
    The guns while intoxicated should not IMHO apply to one's the interior boundry of one's castle.

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    VIP Member Array Eagleks's Avatar
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    Hummmm, ok .... given these arguments... I could argue it is quite legal to have a gun, but not any ammo. The gun by itself is useless without ammo.

    I mean if someone keeps hammering nails in the wall..... take away the nails or the hammer ?

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    Senior Member Array DPro.40's Avatar
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    Quote Originally Posted by BikerRN View Post
    The guns while intoxicated should not IMHO apply to one's the interior boundry of one's castle.

    You could argue however that once he went outside, nevermind the criminal acts committed against the spouse that already give law enforcement enough reason to arrest him, he was a danger to the public by being in a publicly accessable place. Most yards are accessable to the public and thus the law would and should apply.

    I'm not a lawyer, just someone that has seen a fair bit, and that's my opinion.

    Biker
    I agree, just being intoxicated in your home is not a crime. If everyone had to give up guns because they were drunk, the AG should be first in line. Now if drunk in the home and threatening the spouse or others, then arrest on those charges. What if he would have said I'm going to run over you. Would the AG go after the family car. How does he justify removal of guns as I don't see what crime was committed with a firearm to justify the AG interference. Was he pointing the weapon at her. Did he say he was going to kill her? Saying he was going to have to police shoot him is not a crime. Is this supposed to be a permanent removal? What are you to do? Go the the police station and say I'm going out tonight and have some drinks, here's my guns. I'll be back in the morning and pick them up. This smells of a Hurricane Katrina ploy. If the police get called the house for any reason and you have been drinking, bye bye guns. Is this a door way to gun grabbing? I say yes. I don't drink alcohol but just the same it's doesn't feel right. If the AG really wanted to help, they should mandate substance abuse treatment for him and mandate the spouse to go to Al-anon. No, he wants to politicize it and set new gun grabbing policies.
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    VIP Member Array cvhoss's Avatar
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    Quote Originally Posted by tiwee View Post
    ...............The Attorney General has a web site, but I was unable to find an email address other than for a consumer complaint. Apparently he wants to hear from us if a company is ripping us off financially, but not if he is ripping us off constitutionally. Missouri Attorney General
    Didn't know if you found this page:
    Missouri Attorney General Chris Koster :: Contact Attorney General's Office
    You may contact the Attorney General's Office with general questions by email at ag@ago.mo.gov. Your email will be routed to a member of the Attorney General's staff and an appropriate response shall be forthcoming.
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    Distinguished Member Array tiwee's Avatar
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    Thanks Hoss. Guess I was a little worked up and overlooked that link.

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    VIP Member Array ccw9mm's Avatar
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    Having firearms is not a crime.

    Having a few drinks is not a crime.

    Having firearms and drinks, even to the point of intoxication, is not a crime. It's not very smart, but nothing in that pair of circumstances is, in and of itself, threatening to anyone in the least way. It's surely putting the pieces in place for potentially bad things to happen. But, one big thing is missing: specific threatening behavior/action by the actor.

    ONLY when someone actually threatens another, or actually begins harming another, is there something we should all attempt to control: the crime of harming others. IMO, only at that point does the state have any business sticking its nose into any of it. Unless someone becomes a serious threat to others, and that doesn't happen until threatening actions begin, there is only the potential for fear of a future infraction. That's not good enough. To allow the state to control actions long before the threat becomes real is, IMO, bad precedent and opens the door for a long slippery slope of invasive micro-management of people's actions due to fear of what might happen. That is not a path we want our governing autocrats to be on, not in this country.
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    VIP Member Array obxned's Avatar
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    Missouri AG Argues Against Right to Have Arms in Home if Intoxicated

    So I guess in the interest of public safety, while I enjoy a few beers while watching Monday night football at home, the government should take away my cars.
    "If we loose Freedom here, there's no place to escape to. This is the Last Place on Earth!" Ronald Reagan

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    Mixed feelings on this one. Having a weapon in your possession or in your home while under the influence by itself should not be cause for arrest. That is not the case in this situation. The man was under the influence of drugs (prescription), he made threats of violence against himself and others.

    I think in this case the state needs to suck it up and define what constitutes possession.

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    Why is everyone blaming it on the alcohol? What about the pain meds or the mental state? Maybe this guy was just an idiot. Lets ban gun ownership based on all these, idiocy, prescription meds, depression, along with alcohol.

    Whether the guy was drunk, depressed, or medicated, he was breaking the law by his threats. Whether he was going to use a gun a ball bat or the kitchen knife he was contemplating breaking the law and that is what should be addressed. Every state already has laws against what he was doing, sober or totally messed up really doesn't change things.
    Just remember that shot placement is much more important with what you carry than how big a bang you get with each trigger pull.
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