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A Missouri Appellate Court’s
Decision Begs the Question of When a Citizen’s Second Amendment Rights Ought to
Be Restored
In November, the Missouri
Court of Appeals, while admitting that the relevant statute “is not a model of
clarity,” nonetheless interpreted it to deny a plaintiff’s application for a
“concealed carry” permit. The
court grounded its holding on the plaintiff’s 1986 guilty plea to the misdemeanor
of carrying a firearm while intoxicated. [Lumetta v. Sheriff of St. Charles
County (Mo. App. E.D., Nov. 19, 2013).]
According to the court, the
case began back in June 2012, when Mr. Lumetta applied to the Sheriff’s office
for a “concealed carry” endorsement, as required by Section 571.101 of
Missouri’s statutes. That section
says an applicant qualifies for the endorsement is he
Has not pled guilty to or
entered a plea of nolo contendere or been convicted of a crime punishable by
imprisonment for a term exceeding one year under the laws of any state or of
the United States other than a crime classified as a misdemeanor under the laws
of any state and punishable by a term of imprisonment of one year or less that
does not involve an explosive weapon, firearm, firearm silencer or gas gun....
Mr. Lumetta appealed to
the Charles County court, which held, “Ambiguity in statute resolved in favor
of [Lumetta]. Sheriff ordered to issue a concealed carry permit.” The Sheriff demanded a trial. The court came down the same way a
second time, after reviewing all the evidence. Concluded the judge, “It seems that the statute is pretty
vague,” and thus the judgment was
affirmed for Mr. Lumetta. The
Sheriff was ordered to issue a certificate of qualification for the “concealed
carry” endorsement.
With two strikes against him,
the Sheriff took another swing at the plaintiff, carrying his case to the Court
of Appeals. As I noted above, the
judges allowed as how the statute is unclear. But, added their Honors, “it demonstrates that the legislature
intended to protect the public safety and prevent crime by prohibiting people
convicted of certain crimes from carrying concealed weapons.” They declined to consider earlier
versions of the law or other sections of the current statute.
Had the court accepted Mr.
Lumetta’s invitation to explore the rest of the law, they might have
interpreted the section quoted above in light of a pair of subsequent
paragraphs. One of them provides that the applicant
Has not been convicted of, pled
guilty to or entered a plea of nolo contendere to one or more misdemeanor
offenses involving crimes of violence within a five-year period immediately
preceding application for a concealed carry permit or if the applicant has not
been convicted of two or more misdemeanor offenses involving driving while
under the influence of intoxicating liquor or drugs or the possession or abuse
of a controlled substance within a five-year period immediately preceding
application for a concealed carry permit….
Yet another
section further down in the law requires that the applicant was “not adjudged
mentally incompetent at the time of application or for five years prior to
application….”
Why do
I think these sections of the statute matter? It’s because they put time limits on disqualification for a
“concealed carry” permit. An
applicant who actually pleaded guilty to a misdemeanor involving violence only
has to wait five years before being eligible to receive his permit. An applicant who was mentally incompetent
can potentially get his permit, if he can prove that he’s been cured and
competent for five years.
By contrast, the Court of
Appeals concluded, although Mr. Lumetta’s guilty plea was made almost three
decades ago, he is forever disqualified from receiving his permit. So far as we know from the facts of the
case, as the court presents them, Mr. Lumetta’s nose has been kept clean for
the past 27 years.
Considering that the county
court, where the judge actually got to meet the plaintiff, twice found the law
to be vague and ambiguous, it’s hard to understand why the appellate court
judges refused to look at the whole statute for some guidance. If they had, it seems to me, they might
have concluded that --- where neither violence nor incompetence disqualifies a
citizen from a “concealed carry” permit for more than five years --- something
similar ought to be read into the section of the statute that had tripped up
this plaintiff.
Unfortunately, we live
in an America where second chances are currently in short supply. We have more incarcerated citizens ---
both in terms of raw numbers and as a percentage of our population --- than any
other democracy on the planet. As
a matter of fact, we have more people in prison per 100,000 population (716)
than such supposed totalitarian states as Cuba (510), Iran (284), China (170),
and Pakistan (39). Arguably the
most dictatorial country on earth, North Korea’s incarceration rate is hard to
measure, but is estimated to be roughly equal to ours. Bottom line, we have 5%
of the world’s population and 25% of the world’s incarcerated prisoners. That’s
more prisoners than were in Stalin’s Gulags at their peak. [Sources: http://en.wikipedia.org/wiki/List_of_countries_by_incarceration_rate
and http://content.time.com/time/magazine/article/0,9171,2109777,00.html]
Now, let’s be fair. If you’re locked away in North Korea,
there’s a good chance you’re a political prisoner and your odds of survival may
be pretty slim. Forced labor on
spare rations is the rule, or so I’ve heard. Most imprisoned Americans --- more than half --- are behind
bars because of drug-related offenses.
And 4 out of 5 of those are there for simple possession. Your sentence likely will be fairly
short.
So what should happens when you are
released… and supposedly “rehabilitated”?
Better still, what about a guy like Lumetta? How long should you have to keep your nose clean before your
rights are restored?
Probably there is no precise answer
to my question. But surely, given
that 27 years ago, Mr. Lumetta was probably pretty young, got drunk, and
foolishly carried a gun, isn’t almost three decades more than long enough to
demonstrate you’ve aged into a responsible citizen?
To me the answer is “yes,”
especially in light of the “concealed carry” law’s five-year limitations, where
violence and mental incapacity are concerned. Whether your crime consists of carrying a pistol while
intoxicated or possessing a proscribed substance for personal consumption, such
a relatively minor offense shouldn’t haunt an American citizen for the rest of
his life. It shouldn’t strip a
citizen of his civil liberties for his lifetime.
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