A Missouri law preventing gun ownership by felons does not violate constitutional rights, according to a Missouri Supreme Court decision issued this week.
The majority opinion for Jack Alpert v. State of Missouri, et al. said Alpert had not proven that the statute preventing felons from owning firearms was unconstitutional.
Alpert, the appellant in the case, had pleaded guilty and served time in prison twice for felony counts of possession of a controlled substance, once in 1970 and once in 1976, according to court documents.
Following a 1983 application that Alpert submitted to the U.S. Attorney General, the Bureau of Alcohol, Tobacco & Firearms conducted an investigation and found if he possessed firearms, Alpert would not “act in a manner dangerous to public safety,” according to court documents.
In 1986, Alpert applied for a Federal Firearms License that would permit him to deal firearms, which was granted. Alpert and his wife founded the Missouri Bullet Company in 2007. In 2010, he expanded operations so that the company could manufacture ammunition.
Alpert’s lawyer, Ronald Ribaudo, said that from 1983 to 2008 neither federal nor state law prohibited Alpert from owning firearms.
In 2008, the Missouri legislature expanded prohibitions on felons possessing or owning firearms. Alpert lost his license when he tried to renew it, but the Missouri Bullet Company applied for and received a license to manufacture ammunition, according to court documents.
Alpert filed the case to find out the status of his gun rights, even though he hadn’t been charged for possessing a weapon.
One of the key issues in the case was whether Alpert could use such a pre-enforcement challenge, meaning that a law does not need to be violated to be challenged.
The state argued this was not an appropriate case for pre-enforcement challenge.
The attorney for the state, Gregory Goodwin, wrote in a brief the statute “is not affecting Alpert in a way that creates an ‘immediate, concrete dispute.’”
During oral arguments the Court heard in October, Ribaudo was asked why his client could not wait to raise these arguments if and when he possessed firearms, or if and when he was charged and brought to trial. Ribaudo responded the principle of being required to commit a felony to raise one’s constitutional rights is unacceptable.
“That would mean he would have to show that he has no right to bear arms in order to vindicate his right to bear arms,” Ribaudo said at the hearing. “That’s absurd.”
Ben Trachtenberg, an associate professor of law at MU, said that in pre-enforcement challenges “you have to be able to credibly demonstrate why you’re not wasting the Court’s time. That is, why it is reasonably likely to be a problem for you, such that the Court should devote time and attention to figuring out what’s going on.”
The Court agreed that Alpert had the right to raise the case, but said the Missouri law that prevents him from gun ownership is constitutional.
Ribaudo addressed the statute that prevents people with prior felonies from possessing firearms in Missouri. During his oral argument, Ribaudo said the statute is flawed because it does not acknowledge a subset of convicted felons whose possession of firearms poses no different risk than that of a law-abiding citizen.
A brief submitted by Ribaudo says that “throughout his life, Mr. Alpert has participated in, provided, and received significant training in gun safety, enough to qualify as a gun-safety instructor.”
Goodwin’s brief argued the state’s prohibition of possession of firearms by felons does not violate the Missouri Constitution or the Second Amendment.
Goodwin said that Alpert’s argument was based on the facts that Alpert is elderly, sick and that he lives far from police operations.
Goodwin said that Alpert’s circumstances could change, and that the facts surrounding his potential gun ownership would need to be better established.
Trachtenberg said the Court’s opinion “sticks pretty closely to previous precedent on Second Amendment issues.” He noted that none of the judges’ opinions said that Alpert should be allowed to possess a firearm, though the three dissenting judges did not comment on that issue.
“While the result in this case will make it difficult for others to challenge Missouri gun statutes, there is still some uncertainty that will need to be settled by the Court later,” Trachtenberg said.
As for the future, Ribaudo said, theoretically Alpert could appeal to the U.S. Supreme Court, though he said that is “rarely granted.”
“We are contemplating our options. We haven’t made a decision on that yet,” Ribaudo said.
BY Annika Merrilees | Missourian