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THE MISSOURI CCW REFERENDUM
by K. L. Jamison, Attorney at Law
In the spring of 1998, the Missouri General Assembly passed a bill authorizing a referendum for a concealed weapon permit system. This bill culminates seven (7) years of attempts to pass such a bill. A number of parties object to the bill because it is a permit system for an act, which should be a right. The chance of passing a bill for "Vermont Carry" (there is no law against concealed carry in Vermont) may be seen by it taking seven years to pass even a referendum for a permit system.
The Missouri House has voted three to one for concealed carry every time it has been presented. The Senate has been less sympathetic. The major obstacle, has been the governor, who has presented every possible obstacle to passing a bill, even to promising the same prison to three different senators if they voted against it (and they did). There is little possibility of a political change in the Senate. The governor cannot run for office again, however, the likely candidates for governor are equally hostile.
The major dispute over the bill as passed, was the requirement for a referendum. The bill will become law without the governor's signature if it passes a popular vote on "the Tuesday next following the first Monday in April" 1999 (6 April, 1999). To induce the legislature to attach a referendum provision to the bill, Governor Carnahan promised to remain neutral during the referendum campaign. The original referendum ballot language passed by the legislature stated:
Shall state or local law enforcement agencies be authorized to issue permits to law-abiding citizens at least twenty-one years of age to carry concealed firearms outside their home for personal protection after having passed a state and federal criminal background check and having completed a firearms safety training course approved by the Missouri Department of Public Safety?
Some nine months after the legislature passed the above ballot language, Governor Carnahan sponsored a poll on the referendum. This poll found that 60% of the voters would vote for the above ballot language, without knowing anything else about the bill. The governor took these results to the chairperson of the opposition group, who happened to be his daughter. Two of the governor’s advisors serve as strategists for her organization, and the governor’s personal attorney filed a lawsuit against the legislature’s ballot language.
The basis of the lawsuit was the Missouri statute on referendums. This statute required the Secretary of State to write the ballot language, the Auditor to write a fiscal note, and the Attorney General to review the whole. The ballot language could not exceed fifty (50) words. The legislature thought it had the right to specify the ballot language, and had sent the measure through its own fiscal committee. Its language was, however, seven (7) words too long.
The Secretary of State had been appointed to the vacant position by the Governor. The Auditor had, while a county prosecutor, pledged to use all the resources of her office to defeat the referendum. The Attorney General had been opposed by all Missouri firearms groups in a recent campaign for the U. S. Senate. The language created by the Secretary of State was:
Shall Sheriffs, or in the case of St. Louis County, the chief of police, be Required to issue permits to carry concealed firearms to citizens who apply if various statutory requirements are satisfied.
The fiscal note reads:
Because of the discretion given to local law enforcement to verify the Accuracy of applications, the costs are uncertain. Applications fees are Estimated to cover most costs for the first three years. Subsequently, local Governments, as a whole, may incur costs from $500,000 to $1,000,000 annually, not covered by fees.
This fiscal note is directly contrary to the findings of the legislature. According to the Auditor, a fiscal note concocted by the opposition group, Committee for Safe Schools and Workplaces, was added to the costs reported by the state of Oregon to administer their permit system. The opposition committee developed its fiscal note by speculating that new computers would have to be bought, buildings constructed to house the computers, and new staff hired to man the computers. Why Oregon was consulted is not explained.
Even with these fanciful costs, the fiscal not found that fees would cover costs for the first three years. It found extra costs for renewals because the renewal costs were lower than the initial fee, and assuming that the costs of renewal would be the same as for the initial permit. This assumption is not just incorrect, it is completely wrong. Renewals do not require the fingerprints, or the extensive background check of the initial permit, with the related costs.
The Missouri Legislative Issues Council (MoLIC) is an association of the grass roots gun rights groups in Missouri. It has been the force behind CCW reform throughout the history of the effort. MoLIC opposed the referendum on principle. The view of WMSA, and MoLIC, was that it was wrong to submit a fundamental right to a popular vote. The National Rifle Association adopted the idea as the only way to pass a bill, and in the belief a referendum could be won. Given these circumstances, MoLIC decided that, as a matter of political reality, the best course of action was to work for the bill, in order to prevent the addition of further odious amendments.
The Western Missouri Shooters Alliance (WMSA), the oldest grass roots group in Missouri, took a different view and voted to kill the bill rather than accept a referendum. By leaving MoLIC and fighting the bill, WMSA discouraged the addition of other objectionable amendments to the bill. The impression in the legislature was that support for the bill was lost over the referendum issue, and further amendments would cause further erosion of support. As both pro and anti-gun rights legislators wanted the bill to pass, each side believing the referendum would go their way, no other amendments were pressed on the bill.
Many people remain opposed to the bill because of the referendum. That battle is over. There is going to be a referendum, the only question is if it will be won or lost.
The bill repeals, then re-enacts great portions of law, this is the way bills are written in Missouri. The trick lies in what is left out and what is added when the sections are re-enacted. The first significant addition is section 571.030.1(10) which re-enacts the ban on carrying a concealed weapon with an exception if one has a permit to carry a concealed firearm issued by Missouri or another state or political subdivision of another state. Such reciprocity is common among CCW reform bills of the past ten years. There are forty-two (42) states with permit systems as or more restrictive than Missouri's. Vermont, usually counted as the forty-third state offering a CCW system, has no law against carrying concealed weapons, and therefore no permit system. In order to obtain reciprocity a state's permit requirements must be determined by the Department of Public Safety to have substantially the same requirements as the Missouri law. Typically, the other state must also offer the same right to Missouri permit holders. The Department of Public Safety will not begin evaluating other requirements of other states until after the bill passes the referendum.
At 571.030.2(1) all peace officers are exempted from the law regarding concealed weapons, even if off duty or out of their jurisdiction. This re-enforces an Attorney General Opinion regarding existing law, which sounds official, but is only a lawyer's opinion according to the Missouri Supreme Court. There is an unconfirmed report of a Gladstone Police sergeant, arrested and convicted in St. Louis for concealed carry.
The use of the term "peace officers" replaces the previous "law enforcement" officers. There is some reason to believe that the term "peace officers" is a broader term.
An area of some dispute in the bill is 571.070.1(3), which prohibits the possession of a "concealable firearm" (they mean handgun) if the individual was "adjudicated" in the juvenile courts for a dangerous felony or murder in the first degree, but only if a "concealable firearm" (they mean handgun) was used in the crime. Under 556.061 "Dangerous felony" is defined as arson in the first degree, assault in the first degree, forcible rape, forcible sodomy, kidnapping, murder in the second degree and robbery in the first degree. Under existing law, robbery in the first degree requires serious physical injury to any person during the commission of the crime (RSMo 569.020).
This provision applies even if the crime was committed before the date of the referendum. This penalty is probably not an ex-post facto law or double jeopardy. It increases disabilities for a status rather than create a new crime. The intrusion into juvenile records is unprecedented in Missouri, but part of a nationwide trend. The concern over the above section is that it will disarm persons with no adult record. However, such juveniles are not good candidates for gun ownership. As a matter of reality, juveniles who commit such crimes are typically charged as adults. Persons who commit the listed crimes as juveniles, but not as adults, form a very small circle indeed. There may be no one who fits this category. There was a rumor that a Kansas City area gun shop owner had a juvenile record. On investigation, it was found that he was 23 at the time of the offense, which was expunged under the federal Youth Offender Act. There is a means to expunge juvenile records at the state level.
The juvenile records provision as been part of every CCW reform bill submitted to the legislature since at least 1995. It has not been a matter in issue until now.
The meat of the CCW reform is 571.093. This section of the bill requires a permit to carry a concealed "firearm" to be issued by the sheriff of the jurisdiction where the applicant "resides".
This is a "shall issue" bill. If certain listed, objective, criteria are met, the sheriff must issue a permit.
The permit applies to any firearm. The bill does not require registration or listing of specific guns to be carried under the permit. The paragraph limits the permit to firearms. Previously, legislators had expressed concern over citizens carrying concealed switchblades. The mere possession of switchblades has long been restricted, however the legislature valiantly labors to protect us from possessing these knives.
Issue by the sheriff of the county where the applicant resides, instead of his place of domicile, is unusual. Under existing law, one may have many residences, but only one domicile. One may reside anywhere, but a domicile is considered a primary residence for voting purposes. Authorizing application where one resides provides some flexibility to applicants.
Permits are to be issued to persons who are currently legally qualified to own handguns, plus certain specific provisions. The base criteria are that the applicant have no criminal or psychiatric record. This provision only applies to "adjudicated" psychiatric histories. For an adjudicated history, a person must be found incompetent by a court, usually the probate court. This is a matter of public record. The bill does not require breach of doctor-patient confidentiality.
The applicant must not have, within the past five years, exhibited violent behavior toward another person, except in self-defense, or offered a credible threat of violence. The applicant must have demonstrated a knowledge of handgun safety by submitting proof of completion of a twelve (12) hour course approved by the Department of Public Safety. There is no specific provision as to what this course must cover. The course must be taught by law enforcement or NRA certified instructors. As the NRA instructors are specifically mentioned, the NRA personal protection course may be considered a strong contender for course approval. Dares International Inc, of Columbia Missouri has submitted a syllabus of a personal protection course it offers. This may provide a basis for other courses, however the evaluation will not be done until the referendum passes. There is no provision for issue without taking a training course. The first course of action will be for the persons who give these courses, to give them to each other.
Any "competent" person, aged twenty-one or older, may file an affidavit alleging that a permit holder has ceased to qualify for his or her permit. The Small Claims Court shall hold a hearing on such an affidavit, and may revoke permits in appropriate cases. The court may award "reasonable" attorney fees to the prevailing party in the hearing. There will be abuses of this provision. A "reasonable" attorney fee to defend against a false or abusive affidavit would be about a half-million dollars, an hour.
Concealed carry permits will be valid for three (3) years, and cost eighty ($80) dollars. Permit renewals shall cost thirty-five ($35) dollars. The issuing sheriff can revoke or suspend any permit if the holder is no longer qualified to be issued a permit. The permit will be issued within forty-five (45) days, unless the criminal records check has not been returned. The sheriff is required to submit a request for this report within seven (7) days of the application.
A set of fingerprints is required with the permit application to prevent issuance on false identification. These fingerprints will be used to conduct the background check. There is no provision to purge these fingerprints following the investigation. There is some objection to the fingerprint requirement, as well as the permit system itself, in that it creates a government "list". Regardless of the principle, fingerprints are a common requirement for recent permit systems. The bill is not likely to pass the referendum without it. Anyone who has purchased a box of ammunition with a credit card, subscribed to a firearms magazine, or purchased a firearm since 1968 is already on a "list". Anyone who has received a firearms-related solicitation or outdoors catalogue has evidence of that "list".
If the application is denied, the applicant is entitled to file suit in the Small Claims Court to prove his or her qualification for a permit. The suit form under 571.093.13 refers to a permit to carry "a concealed firearms with a barrel of less than sixteen inches". This not only limits permits to guns, but to handguns. The provision conflicts with the section authorizing permits to carry concealed firearms in general and will require clarification in the next legislature.
At 571.094, all businesses, citizens, not for profit or public entities are authorized to post their property to deny access to persons with concealed weapons. As a matter of principle, a person or entity may do with its property as it sees fit. Such a measure probably makes the business responsible for the security of persons on the premises. Experience with other states, which have such provisions, is that gun owners avoid such businesses, and armed robbers do not. Posting has consequently become less popular. Unfortunately the provision fails to exempt peace officers.
If the bill passes the referendum, concealed weapons will not be allowed in any church, school, election precincts on Election Day, a government office or in a building exclusively used by any government agency. Weapons are already prohibited in such areas. The bill deletes the current legal prohibition of weapons (concealed or otherwise) into "any public assemblage of persons met for any lawful purpose". The term "public assemblage" was never defined, which allowed for a small number of arbitrary arrests in public places.
After the bill is enacted, no city or county can ban carry by permit holders. Missouri's Uniform Law (RSMo 21.750) prevents local laws from being more restrictive than state law. The bill itself does not affect the legality of open carry, however, under the Uniform Law, local government can restrict open carry.
The bill has been criticized as being less than perfect. It is less than perfect, born of an imperfect system. Ross Perot tells a story about Henry Ford and the perfect hamburger. The Chairman of Ford Motors said the only good hamburgers could be had at the executive dinning room. On investigation it was found that the chef made hamburgers by grinding up a Grade A steak. Given a world-class chef and Grade A steak, the perfect hamburger was possible. Missouri shooters did not have these assets working for them in the legislature. The bill is not perfect, and was never expected to be perfect. One sees perfect bills enacted almost as often as unicorns.
Missouri shooters lost their right to carry concealed weapons in three bills from 1874 to 1879. This was a period when the legislature and governor were solidly united, largely in an effort to repeal reconstruction. Missourians will not get their rights back in a single bill.
The bill has defects, but nothing that cannot be fixed. It is the cleanest, most gun-owner friendly bill we have seen in seven years of attempts. Even if the bill was seriously flawed, it would be necessary to support it. The results of the referendum will resonate over Missouri's future, and the gun rights of the nation. Regardless of the outcome, whenever gun rights come up, the comment will be that "the people have spoken".
It has been suggested that the movement could survive loosing the referendum because term limits are likely to give us a Republican-dominated legislature. It is assumed that a Republican-dominated legislature will be more likely to go against the will of a Democratic governor. Term limits will also loose us the presence of long-time pro-gun Democrats. We do not know what we will get in their place. A new legislator is cautious and not likely to vote for CCW reform if the voters have just rejected it. With some few exceptions, legislators do not vote according to principles. They vote according to power, who has it, and how the legislator can keep it. If a new legislature does vote for CCW reform, there is no way to predict what such a bill would look like. Based on past experience, it is not likely to look as good as the current bill.
If we lose the referendum, the politicians will believe that our movement is weak, they will throw their support to the prohibitionists and begin to take away rights we have now. We will never see concealed carry in our lifetimes, and other states will suffer a near fatal setback.
If we win, we get to say, "The people have spoken". We will demonstrate the political power we need to improve and correct the bill. Other states have gradually improved bills with worse defects. This bill is part of a process to restore our rights, it is not the end. Standing together is part of that process.
For further information,
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