The following is Chapter 9 of "Missouri Weapons and Self-Defense Law", by Kevin Jamison, a Kansas City attorney. The book is in the process of being published, and should be available in May or June of 1999.

CCW - MISSOURI STATUTORY HISTORY

HISTORY

Concealed weapons laws did not become general, even in the South, until the Reconstruction era. Missouri did not have a law against carrying concealed weapons, or any law concerning weapons, until 1874, this law stated:

Section 1. Whoever shall, in this state, go into any church or place where people have assembled for religious worship, or into any school-room, or into any place where people may be assembled for educational, literary or social purposes, or to any election precinct on any election day, or into any court-room during the sitting of court, or into any other public assemblage of persons met for other than militia drill or meetings, called under the militia law of this state, having concealed about his person any kind of fire-arms, bowie-knife, dirk, dagger, slung-shot, or other deadly weapon, shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine not less than ten nor more than one hundred dollars or by imprisonment in the county jail not to exceed six months, or by both such fine and imprisonment: Provided, that this act shall not apply to any person whose duty it is to bear arms in the discharge of duties imposed by law.

Section 2. This act shall take effect and be in force from and after its passage.

Approved March 26, 18741.

It is immediately obvious that this bill banned only concealed carry in certain specified places, but not open carry, and the statute is a misdemeanor, while today concealed carry is a felony. The bill was to take effect immediately on passage, which is not current practice. However, a cursory examination of the bills passed at the time indicates that it was the practice of the era, and of no significance. The issue was revisited the following year, the only change being section 2 stating "All acts and parts of acts inconsistent with this act are hereby repealed." SESSION LAWS OF MISSOURI 1875 at 51. The acts thus repealed are not apparent from the bill or the statute books. A note appears following the bill that the bill was not signed by the Governor, but remained on his desk for ten days, becoming law by operation of law.

In 1877, the legislature returned to weapons law, passing "AN ACT to preserve the public peace by preventing the display of knives and other deadly weapons in the presence of one or more persons.". While knives were specifically referred to, firearms were first on the list of weapons which could not be displayed, the bill reading:

section 1. Whoever shall, in the presence of one or more persons, exhibit any kind of firearms, bowie knife, dirk, dagger, slung shot or other deadly weapon, in a rude, angry or threatening manner not in the necessary defence of his person, family or property, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than ten nor more than five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by both such fine and imprisonment.

Approved April 17, 18772.

The above bill did not criminalize the open carry of weapons, but only threats with them. What constitutes a threat might provide considerable discretion to the arresting officer. The statute survives in the law today as a felony.

The legislature of 1879 wrapped up the subject at RSMo section 1274, 1879 stating:

Sec. 1274. Carrying deadly weapons, etc.--If any person shall carry concealed, upon or about his person, any deadly or dangerous weapon, or shall go into any church or place where people have assembled for religious worship, or into any school room or place where people are assembled for educational, literary or social purposes, or to any election precinct, on any election day, or into any court room during the sitting of court, or into any other public assemblage of persons met for any lawful purpose, other than for militia drill or meetings called under the militia law of this state, having upon or about his person any kind of firearms, bowie-knife dirk, dagger, slung-shot, or other deadly weapon, or shall, in the presence of one or more persons, exhibit any such weapon in a rude, angry or threatening manner or shall have or carry any such weapon upon or about his person when intoxicated or under the influence of intoxicating drinks, or shall, directly or indirectly, sell or deliver, loan or barter to any minor, any such weapon, without the consent of the parent or guardian of such minor, he shall, upon conviction, be punished by a fine of not less than five nor more than one hundred dollars, or by imprisonment in the county jail not exceeding thee months or by both such fine and imprisonment.

Sec. 1275. Above section not to apply to certain officers.--The next preceding section shall not apply to police officers, nor to any officer or person whose duty it is to execute process or warrants, or to suppress breaches of the peace, or make arrests, nor to persons moving or traveling peaceably through this state, and it shall [be] a good defense to the charge of carrying such weapon, if the defendant shall show that he has been threatened with great bodily harm, or had good reason to carry the same in the necessary defense of his person, home or property. (New section.)

In section 1274, for the first time, it is illegal to carry concealed anywhere in Missouri. Prior law prohibited carrying concealed in certain specified places. This section outlaws carrying concealed OR carrying weapons into specified places. The introduction of the little word "or" into the second line of the statute makes two crimes out of one. The following section, 1275, gave discretion as big as all outdoors to law enforcement or juries to find that the defendant was moving, a traveler, had been threatened, or simply had a good reason to carry the weapon for defense. Missouri did not revisit the firearms area until 1883.

Certain authorities, including State v Mason, 571 S.W. 246 (Mo. en banc 1978) at 249 (from the dissenting opinion), state that Missouri's concealed carry law dates from 1874. As demonstrated above, this is not entirely correct. The 1874 law, was a minor restriction of the right, a "time place and manner" restriction of the sort the U.S. Supreme Court has approved to bar shouting fire in a crowded theater. Not until 1879 did it become general, and then with sufficient loopholes to pass a burning cross through. In the 1996 elections the (re-elected) governor called the old law "progressive and forward looking". Actually it was a mechanism to disarm the Black freedmen.

Prior to the Civil War, Missouri weapons law was directed only at slaves and free Blacks. Early slaves possessed guns in defiance of French and Spanish "Black Codes" for use as market hunters, or even soldiers3. Slave owners defended arming slaves as protecting their valuable property from wild animals and Indians4. When Missouri, as part of the Louisiana territory, was acquired by the United States in 1804, the territorial laws continued the prohibition against slaves possessing any gun "club or other weapon whatsoever, offensive or defensive". Slaves on frontier plantations and free Blacks who were heads of households could obtain a license to possess a single gun, Laws of the District of Louisiana Chapter 3 Sections 4 and 5. Arms held by Blacks without license were forfeit to the discoverer, the armed Black could receive up to thirty-nine lashes. In 1825 the law regarding armed Free Blacks was re-enacted to emphasize that the license could be revoked by any justice of the peace5. Forms were established for giving licenses to Blacks (slave or Free) and forfeiture of weapons, supra at 856-7. Slaves ultimately were prohibited from possessing weapons entirely on pain of forfeit of the weapon and up to thirty lashes, Missouri Laws 1855 Chapter 150 Sections 21 and 22.

Missouri did not witness enough slave murders, to provoke such laws, and only two insignificant rebellions6. The increasing slave population at the time of increased abolitionist activity increased the paranoia of slaveholders. Slaveholders of the time could not differentiate between advocating abolition, and advocating slave insurrection, an 1837 statute concerning abolition consisted entirely of a bar to advocating slave insurrection.

Following the Civil War, the Radical Republican regime disenfranchised Confederate sympathizers and favored the Freedmen. Division in Radical ranks led to a loss in the election of 1870. As the re-enfranchised ex-confederates regained political power, they took revenge on the Freedmen. The result was the 1874 and 1879 laws which could be selectively enforced.

The 1865 State Constitution disenfranchised former Confederates, and bared them from certain professions. It was a repressive document only adopted through the intervention of Union occupation troops, and then barely. It was increasingly unpopular. Missouri suffered from Reconstruction era violence along with the rest of the South. The raids of the Jesse James Gang (entrepreneurs who invented bank robbery) had as much to do with Reconstruction violence as outlawry. The first "Wild West" gunfight is accepted as having occurred in Springfield Missouri on 21 July, 1865 between William Butler ("Wild Bill") Hickock, a former Union Scout, and Davis K. Tutt, Jr, a Confederate veteran. The precipitating cause of the gunfight was a dispute over a gambling debt incurred at a local saloon. Joseph Pulitzer, founder of the St. Louis Post-Dispatch and a Republican member of the legislature shot and wounded a fellow legislator on 27 January, 1870 in the office of the Schmidt Hotel in Jefferson City. Mr. Pulitzer, a legislator and newspaperman, had taken offense at being called a liar7. He was arrested by local authorities, and offered shooting classes by another member of the legislature8.

A statute was not passed regarding weapons law, however, until 1874, and then it did not refer to carrying weapons in saloons or gambling halls, or banks, or trains, or hotels. It listed places of social and political importance, places where the state had witnessed Reconstruction era violence.

The Constitution of 1875 marked the end of Reconstruction in Missouri, the ascendancy of various white societies and the current constitutional provision guaranteeing that the right to bear arms shall not be questioned, "but this shall not justify the wearing of concealed weapons.".

Until recently, carrying a concealed weapon was a crime only if it was carried as a weapon, and not if carried as a messenger or for trade9. This approach was rejected for a strict liability test in a 1973 code revision10.

FELONY

In Missouri today, carrying a concealed weapon is a felony under RSMo 571.030, the catchall "Misuse of a Weapon" statute. It is a Class D felony carrying a penalty of up to five years in prison and a fine of $5,000.00. However, (another however) until approximately 1994 it was usually handled as a misdemeanor under city and county ordinances unless there was some other felony in conjunction with the CCW. Since that time, prosecutors have filed felony charges when the CCW is the only charge. The reason for the change in emphasis is open to question.

The former practice allowed some flexibility in dealing with persons who carry concealed without a felonious thought in their heads, but still carries some permanent consequences. If the misdemeanor involves a firearm however, the convicted misdemeanant is forever barred from buying a handgun (but not from owning handguns he already owns). If the misdemeanant is convicted of concealing any other type of weapon, he is not barred from buying handguns in the future. It does not have to make sense, it is just the law.

The purpose of the concealed weapon statute is said to be to break down the "pernicious and dangerous habit of carrying concealed weapons to be used if it should become necessary" State v Jordan, 495 S.W.2d 717 (Mo. App E.D. 1973) at 720. After 124 years of this effort, it may confidently be said to have failed. It has also been held to have been intended to empower law enforcement officer to disarm and prosecute persons intending to use their weapons in criminal activities, King v. State, 839 S.W.2d 709 (Mo. App. W.D. 1992) at 711. How an officer is expected to predict which persons are carrying for crime, and which against crime, is not specified. Until recently, it was rare to see a felony charge on a concealed weapon unless there was some other accompanying felony. In the last four years, there has been an increase in the number of persons charged for no other crime than carrying concealed.

CRITERIA

The criteria for a concealed weapon are 1. readily capable of lethal use, 2. recognizable as a weapon, and 3. accessible. Readily capable of lethal use means that the weapon is ready for use. If a gun, it is loaded or the ammunition is within "easy" reach of any person State v Purlee, 839 S.W.2d 584 (Mo.banc 1992). The weapon (of any kind) must be mechanically functional. This is seldom a question with blackjacks and knives, but does come up with firearms. Police officers used to testify that they could tell that the gun was functional, due to their X number of years as a police officer (which gives them expertise in everything from aardvarks to Zoroasterism). Proving that the gun was functional is an essential element of the case. Prosecutors are currently taking the precaution of sending the gun to a lab where it is test fired, usually with the owner's ammunition.

  1. LAWS OF MISSOURI 1874 at 43.
  2. LAWS OF MISSOURI 1877 Session at 240.
  3. Usner INDIANS SETTLERS, & SLAVES IN A FRONTIER EXCHANGE ECONOMY, University of North Carolina Press, Chapel Hill N.C. 1992 at 164.
  4. Ekberg COLONIAL STE. GENEVIEVE, The Patrice Press, Gerald Mo. 1985 at 210.
  5. LAWS OF MISSOURI 1825 at 600.
  6. Kremer and Holland BLACK HERITAGE, University of Missouri Press, Columbia Mo 1993 at 43-46 and 96.
  7. Mott MISSOURI READER, University of Missouri Press, Columbia Mo. 1964 at 331-2.
  8. Id at 334.
  9. State v Murray, 39 Missouri Appeal Reports 127 (Mo.App. St. Louis Ct. of App. 1890) and State v Roberts, 39 Missouri Appeal Reports 47 (Mo.App. St. Louis Ct. of App. 1890) at 47.
  10. THE PROPOSED CRIMINAL CODE FOR THE STATE OF MISSOURI, supra at 218.

 

For further information visit the Missouri Concealed Carry website at www.moccw.org or send email to .

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