Year: 2009

I had a nagging feeling that I had read about the topic of my previous post, intoxicated possession at home, before. Sure enough, managed to find this in Eugene Volokh’s Law Review article that discusses a framework for implementing the Second Amendment (Original post at Volokh.com here):

Many states bar possession of a firearm while intoxicated. Now a drunk man may need self-defense as much as the rest of us, and perhaps even more.385 But he is also especially likely to endanger innocent people—whether bystanders or people whom he mistakenly identifies as threatening him—and he is especially unlikely to successfully defend himself.386 And to the extent that the scope of the right to bear arms has historically excluded the mentally infirm, there seems to be little reason to treat those who are briefly mentally infirm as a result of intoxication differently from those who are permanently mentally infirm as a result of illness or retardation.387

A difficulty would arise if the law covered not just gun handling or carrying, but gun possession in the home while the homeowner is home and intoxicated. If every gun owner becomes a felon when he drinks too much at home, or must somehow find a friend who will soberly store the gun elsewhere on such occasions,388 then millions of people will be felons.389

It’s not entirely clear how this problem fits with the constitutional framework outlined above. My inclination is to say that while there may be a strong enough tradition of treating the mentally infirm as too unreliable to possess guns, and the tradition might extend to treating the temporarily mentally infirm as similarly too unreliable, the tradition likely doesn’t extend to a usually sober person’s possession of a gun in his home while he’s drunk. I would also think that requiring gun owners to refrain from normally accepted social drinking practices, to do all their serious drinking outside the home, or to temporarily move their guns outside their homes on party nights creates a substantial burden. But at the same time people can avoid or sharply decrease this burden by entirely or largely refraining from a behavior that, while legal and socially acceptable, is hardly necessary or praiseworthy; perhaps that should affect our judgment about the burden’s substantiality.

Fortunately we can largely avoid this issue, at least for now, since nearly all the statutes on the subject cover only “carry[ing]” or “personal possession.”390 The one exception that I’ve seen, the Missouri statute stating that a person is guilty of a crime if he knowingly “[p]ossesses or discharges a firearm or projectile weapon while intoxicated,”391 is likely just inartfully drafted: Though accompa- nying statutes use “possesses” broadly, likely broadly enough to include storing inside one’s home,392 this statute is labeled “Unlawful use of weapons,” and generally covers discharging, carrying, or brandishing a weapon (or setting a spring gun). I expect that Missouri courts would therefore narrowly interpret “possesses” in this statute, as covering only having on one’s person and not simply having a gun stored somewhere in the home.

You can read the Missouri Supreme Court decision here. Looks like Richard asserted it was overbroad, and the Court in this case refused to apply that doctrine, saying its use was limited to the First Amendment. It further refused to recognized the Second Amendment as incorporated, and proceeded with its analysis under the Missouri Constitution. The Missouri Supreme Court actually reversed and remanded based on standing to raise a constitutional issue given the facts in the case:

Although section 571.030.5 sets out a specific exception to the rule barring possession or discharge of a firearm while intoxicated, where the person is defending himself or others, Richard argues that the statute could be applied in a manner that effectively would prohibit an intoxicated person from possessing a firearm in the home for lawful self-defense. There is, at this point, no self-defense issue in this case. Richard has no standing to raise hypothetical instances in which the statute might be applied unconstitutionally. Lester v. Sayles, 850 S.W.2d 858, 872-873 (Mo. banc 1993). Richard’s claim must be analyzed under the facts of this case. Under the facts of this case at this stage of the litigation, his constitutional claims fail.

The circuit court erred in dismissing the state’s information charging Richard with violating section 571.030.1(5). The judgment is reversed, and the case is remanded.

So this ruling would appear to hinge exclusively on the facts in this particular case, rather than being a broad ruling that would affect all gun possession in the home while a person in the home was intoxicated. The Missouri Supreme Court doesn’t seem to want to consider that the statute is facially unconstitutional, but would seem to indicate some willingness to hear a constitutional challenge by someone who can raise a legitimate constitutional claim regarding self-defense in the home.

I’m still inclined to believe the statute is over broad. The exception for self-defense only applies if one is actively engaged in self-defense under 563.031, RSMo. The courts can certainly carve out an area of constitutionally protected possession here, but the Missouri Legislature should really have taken more care when drafting this law.