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Depends on What One Means by Possession

Interesting case out of Missouri, via SayUncle. A man drunk at home is charged with having a firearms while intoxicated. It seems to me that the public has an interest in a person not carrying a firearm in public while intoxicated, but the state’s power to reach into the home ought to be considerably diminished. Should someone be charged because they are intoxicated at home, but have a loaded pistol in the bed stand upstairs, or have a rifle in the closet?

Looking at the Missouri Statue, it would indeed seem the law reaches this far.

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

(5) Possesses or discharges a firearm or projectile weapon while intoxicated; or

In fact, it would seem to even make possession of an air gun or a bow and arrow a crime. The law isn’t entirely clear about what possession means, and doesn’t stipulate loaded or unloaded. Here’s the major exception, other than self-defense:

Subdivisions (1), (5), (8), and (10) of subsection 1 of this section do not apply when the actor is transporting such weapons in a nonfunctioning state or in an unloaded state when ammunition is not readily accessible or when such weapons are not readily accessible.

So you can transport firearms unloaded, in your car, and be as tanked up as you want! Well, DUI laws still apply, but they can’t get your for transporting an unloaded gun in your trunk. But it would appear this is a blanket prohibition on having a gun in the home while intoxicated.

I think the lower court got it right. This statute is pretty clearly over broad and unconstitutional. How can there be an exception for self-defense if you can’t have the gun around in a state ready to use for self-defense? I don’t suddenly lose my Second Amendment rights because I have a couple of beers in the home. The discharge portion of this is probably constitutional, but mere possession? I don’t see how that is, since it effectively destroys the right to keep a gun in the home.

2 Responses to “Depends on What One Means by Possession”

  1. W. W Woodward says:

    A couple of months ago the jail where I work was holding a federal prisoner charged with felon in “constructive” possession of a firearm. The guy had a key to another man’s home. The other guy’s house had a gun safe and the safe contained, you guessed it, firearms. The government didn’t even allege that the inmate ever entered the house. The possession of the key was enough.

  2. D.W. Drang says:

    “Paging Counselor Gura, Mr. Alan Gura…”

Trackbacks/Pingbacks

  1. SayUncle » Don’t drink and pack - [...] More from SIH: A man drunk at home is charged with having a firearms while intoxicated. It seems to…
  2. More on the Missouri Supreme Court Decision | Snowflakes in Hell - [...] had a nagging feeling that I had read about the topic of my previous post, intoxicated possession at home,…
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