I don’t know why this (Leave a Comment / By Ed Frey / February 3, 2023) showed up on the Friday Post but it also now appears on every Post. If there have been Comments it shows how many but still says By Ed Frey when some of that number are not by me. I have submitted a ‘Ticket’ with Astra Support to fix it but have received nothing from them from far. I suspect that this is not a Bug but is a Feature that some programmer thought would be great.
Mr. Ross Goes to Jefferson City, or
The Battle Continues, Part III
By John Ross
Copyright 2003 by John Ross. Electronic reproduction of this article freely permitted provided it is reproduced in its entirety with attribution given.
The Supreme Court hearing (oral arguments) about Missouri’s concealed carry law took place yesterday. I got there early and got a seat in the front row. Recording devices are not permitted, and I don’t take shorthand, so the description that follows may miss a few details, but I think I got all the highlights.
Supreme Court hearings are tightly structured, with each side having 15 minutes to present their arguments. This 15 minute limit includes questions by the justices, and in most cases the justices start asking questions immediately. This case was no exception.
Burton Newman for the plaintiffs led off and failed to address the court properly, then appeared irritated when his procedure was corrected. He then went into his thesis that the language of our Constitution (“…but this shall not justify the wearing of concealed weapons”) really meant that carrying concealed weapons was prohibited under all circumstances and the legislature had no authority in the matter. He added that police were not “citizens,” but rather “the State.” Almost immediately one of the justices asked Newman where he got his definition of the word “justify.” Newman started talking about the Constitutional Convention in 1875 and the Jesse James era. The justice finally cut him off and again asked where he got his definition of “justify.” After another minute of Newman giving his take on what he felt the people in 1875 intended, another justice (I think it was a different one, my notes don’t confirm this) said something to the effect of “You didn’t answer the question. Where did you get your definition of ‘justify’?” Newman appeared to become agitated, and started talking about his belief concerning the meaning of the word in the context of the Constitution, shaking his finger at the justices to make his point. The justices appeared to give up on getting the answer to their question out of Newman, and asked him a fourth time about the word, this time about what it meant. Newman said quickly, “Allow,” and sat down.
Next up was Richard Miller, co-counsel for the plaintiffs. Miller focused on the plaintiffs’ cross appeal, on the issue rejected three times at the Circuit Court level, that the concealed carry law violated the Hancock Amendment. Hancock is designed as a check on government growth, to prevent cities, counties, school districts, and other political entities from being forced to comply with new laws that cost them money to implement when the legislature has not allocated funds for that purpose. Hancock allows a county to opt out of an unfunded mandate after it shows that it has indeed incurred additional, unfunded expenses.
The basis for the plaintiff’s Hancock argument (rejected three times at the Circuit Court level) hinges on their belief that although the language in the Carry law allows the sheriff of each county to charge a fee of up to $100 per application, it prohibits the sheriff from using any of that money to pay for the expenses incurred in processing the applications. Hancock cases (so far) cannot be brought up until the political entity in question (county, etc.) has actually incurred additional unfunded expenses. Miller attempted to break new ground by arguing that it would make much more sense for the Court to take this up now, rather than having to deal with 114 separate Hancock cases after all 114 counties in Missouri filed lawsuits.
The justices immediately began asking him if it wasn’t possible that some counties wouldn’t incur any additional expenses at all, even with no fee money coming in. Miller admitted that was true. One of the justices pointed out that at least one sheriff has pledged to do the paperwork for free, and then asked Miller something like “You have no idea what, if any, the various counties’ expenses will be, do you?” Miller admitted he didn’t, then reiterated his position that it still made much more sense to rule on this issue now, rather than wait for actual data to be acquired. The justices continued to pepper him with questions about counties and expenses, and Miller admitted that so far, no county in the entire state had brought a lawsuit or expressed any desire to be excused from the fee-based concealed carry application process.
During the time the plaintiffs made their case, the justices asked them about what role the Sheriff of the City of St. Louis had in their case. In the briefs that the Attorney General’s office filed, the AG contended that the Sheriff was added as a defendant on a pretense, so as to keep the Circuit Court trial in Judge Ohmer’s court in St. Louis instead of its proper venue of Cole County. The plaintiffs admitted that they had no testimony, evidence, or written statements of any kind from Sheriff Murphy, but that he was nonetheless central to their case.
After 15 minutes, time was up and it was the defense’s turn. Paul Wilson of the AG’s office stood and spent a short time on the language “shall not justify” that Newman and Miller contended meant “shall prohibit under all circumstances.” He pointed out that the legislature had for 130 years been legislating exemptions to the general ban on concealed carry in Missouri. You could legally carry a concealed weapon on your own property, while in lawful pursuit of game, while on a peaceable journey throughout the state, if your duty was to execute process, if you were a judge, or if you were a corporate security advisor. Those were all current exemptions—there had been others that the legislature had granted and rescinded in the past. There were dozens of court cases spanning more than a century which upheld the legislature’s right to regulate concealed carry in Missouri. Until now, no one had even considered the notion that the legislature was powerless in this area, and the plaintiffs hadn’t been able to unearth a single court case or other legal precedent to support their contention. Forty other states have similar Constitutional language, and only one had had it challenged: A copycat suit in New Mexico, where a few weeks ago the justices ruled unanimously and from the bench that the legislature had the authority to regulate concealed carry as it saw fit.
Wilson then addressed the Hancock issue. He said that it strained credulity to contend that our legislators would pass a law with full recognition that they needed to avoid creating an unfunded mandate, put wording in that law which allowed the sheriff of each county to collect a fee of up to $100 per application so as to specifically avoid creating an unfunded mandate, and then tell the sheriff he couldn’t use the money to cover the specific expenses incurred when processing the applications.
The plaintiffs’ Hancock claim arose from their interpretation of the what the word “only” referred to. When the bill was being drafted, the sheriffs were afraid the fee money could end up being used by the county for non-law-enforcement things like road construction, sidewalk repair, etc. Thus the wording “This fund shall only be used by law enforcement agencies…” [emphasis added], meaning that other political entities could not make a claim on the money. In recognition that $100 was probably far more money than needed to pay someone for the few minutes of work required to process the application, the sheriffs didn’t want the fee money restricted to application-processing expenses. They wanted to be able to spend the excess on other needs. Thus, the legislature put in “for the purchase of equipment and to provide training,” making it clear that these were acceptable things on which to spend the fee money.
Wilson pointed out that in a different section of the law it allowed the sheriff to delegate the application processing to a police agency, paying them for it out of the fee money. Obviously the “only” referred to “law enforcement agencies” and not “training and equipment.”
One of the justices asked Wilson something like “How about if we just strike the phrase ‘training and equipment’?” I think this question surprised most people in the audience (it surprised me), and Wilson said that would be perfectly acceptable but not necessary, given a logical reading of the existing wording. (I’m paraphrasing here, I don’t have an exact quote.) Later in the proceedings this suggestion was made again (I can’t remember if it was the same justice or a different one.)
More questions followed, and Wilson said that the plaintiffs had only the most tenuous connection with a Hancock claim. Their only status was as general Missouri taxpayers. None of the counties in which any of the plaintiffs lived had incurred any expenses yet under the new law, nor had they sought relief from the measures mandated in the law. Wilson gave a parallel: The legislature, he said, was about to pass a measure making cross-burning illegal in Missouri. They were not, however, going to allocate new funds to every law enforcement agency to pay for investigating cross burnings, because investigating crimes is what the police do. It’s part of their job, just as taking fingerprints and requesting background checks is part of their job. Should a citizen be able to prevent the cross-burning law (or any law, for that matter) from going into effect merely by being a Missouri taxpayer and claiming that the new law might, somewhere, create new expenses? And wasn’t it especially inappropriate that these particular plaintiffs were bringing a Hancock claim in this particular case, given that virtually everyone in law enforcement expected the concealed carry application process to be a financial windfall for the sheriffs?
Soon thereafter, fifteen minutes was up and Wilson sat down. Then the plaintiffs were given a short time for final rebuttal. To be blunt, I cannot recall anything new said during this short period. It was a replay of earlier arguments, and I don’t believe anything was even phrased differently.
There were other questions and answers that I haven’t described here. Many were variants and clarifications of the things mentioned. A recurring question from the justices involved the issue of not having any way to know if ANY new expenses will be incurred in many of the counties, even if no fee was levied.
I have no legal training, so I cannot claim to be a suitable legal commentator. As a layman, I came away with the impression that the justices were very interested in the elements of the case, they asked a lot of questions that to me seemed exactly on point, and they focused on the critical areas of the case. I think the facts and the law are on the side of the defendants. I cannot see the Court ignoring over a century of statewide (and nationwide) legal precedent and upholding Judge Ohmer’s bizarre ruling that a license-to-carry permit system violates Article 1, Section 23 of Missouri’s Constitution.
As to Hancock, it is my understanding that in all previous Hancock cases, the law in question is not thrown out as invalid. Rather, the law remains in effect and any political entity suffering an unfunded mandate from the new law is allowed to opt out of its obligation until the legislature allocates it the appropriate funds. Given that all the sheriffs I’ve talked to are looking forward to concealed carry as a moneymaker for them, I don’t see counties doing that.
Normally, the Supreme Court takes 60 to 90 days to render a decision. This case has been put on a fast track, and most legal people I’ve talked to think it will only be a matter of weeks, and possibly as soon as January 27.
I’ll keep you posted.
John Ross 1/23/2004