To Fix a Broken Standard

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Commentary, Constitutional Structure, Limited Government


Missouri is facing an unusual problem.

On the one hand, the state supreme court has held that laws affecting fundamental rights must be reviewed under the “strict scrutiny” standard.  Ordinarily this would be excellent news, because strict scrutiny is supposed to represent the very highest level of judicial protection for constitutional rights. This standard requires the court applying it to (1) presume that a law restricting a constitutional right is unconstitutional, (2) requires the government to present a compelling government interest that might justify the restriction on the constitutional right, and (3) requires the government to show that the challenged law is narrowly tailored so that it restricts no more liberty than is reasonably necessary for the purpose of serving the government’s asserted compelling interest.

But in a set of cases dealing with Missouri’s new amendment addressing citizens’ right to keep and bear arms the court turned the idea of strict scrutiny on its head.  At issue was the state’s permanent prohibition on persons convicted of any felony offense from ever again lawfully possessing a firearm. The challengers conceded that, although the amendment explicitly allowed for these restrictions to be applied to convicted violent felons, the felon-in-possession statute unconstitutionally restricts the freedoms of a huge number of convicted felons have not shown any propensity for violence–the law treats someone convicted for tax delinquency the same as it treats a murderer or rapist.

In these Amendment 5 cases, the court started by expressly refusing to put the burden of proof on the government, instead stating that it would presume the validity of the challenged law and force the challengers to prove the law was unconstitutional.  This position directly conflicts not only with the way strict scrutiny is applied in literally every other state and federal court in the nation, it also contradicts the Missouri Supreme Court’s own precedents.  In Witte v. Director of Revenue, 829 S.W.2d 436 (Mo. banc 1992), for example, the Missouri Supreme Court stated that cases in which a law restricts fundamental constitutional rights “force the courts to peel away the protective presumption of constitutionality and adopt an attitude of active and critical analysis, thus subjecting the [law] to strict scrutiny.”  Even more recently, in Ocello v. Koster, 354 S.W.3d 187 (Mo. banc 2011), the court held that “[u]nder strict scrutiny, legislation is presumptively invalid and will be declared unconstitutional unless it is narrowly tailored to serve a compelling governmental interest.”  In its recent Amendment 5 rulings, however, the court did not make any reference to or effort to explain its departure from these earlier holdings – it simply acted as though they never happened.

In the cases challenging the felon-in-possession laws, the challengers admitted that the government has a compelling government interest in keeping firearms out of the hands of those who have been convicted of violent crimes, thus demonstrating a propensity for violence against others.  The proper question, then, was whether the government’s sweeping ban on nonviolent felons’ possession of firearms was reasonably necessary to keep firearms out of the hands of violent felons.

Under the traditional strict scrutiny standard, the government would be required to put forward evidence demonstrating such a necessity if the law was going to survive.  Again, however, the Missouri Supreme Court deviated from precedent, stating instead that the government need only appeal to “a long history, a substantial consensus, and simple common sense” to justify a restriction on fundamental constitutional freedoms – no actual evidence would be required.  In the context of the felon-in-possession law, the court made no effort to determine if less extensive restrictions would have adequately addressed the government’s asserted interests.  Instead, it concluded that because the government might theoretically have tried to make the challenged restrictions even broader (for example, extending the prohibition to those convicted of misdemeanors) the court would consider the restrictions to be “narrowly tailored.”

So even though the Missouri Supreme Court has given lip-service to the idea that it will apply strict scrutiny to restrictions on constitutional rights, the standard it actually applied in the context of the Amendment 5 cases bears little resemblance to the strict scrutiny courts apply in any other context or jurisdiction.

Why does this matter?  Because going forward, one of two things will happen whenever a citizen goes to court to argue that a law violates their constitutional rights: the courts will either apply the same, toothless version of “strict scrutiny” it used in the Amendment 5 cases, or they will make up their own standard on a case-to-case basis, the application of which will depend solely on whether the judges think a given constitutional right is worthy of protection.  Either result is unacceptable for a society that values the rule of law and constitutional checks on governmental power.

What can be done about this?  I’m glad you asked!

Missouri needs a constitutional amendment to clarify how this state’s courts must assess governmental restrictions on constitutional rights.  I propose that the following section (or something like it) should be added to Article V of the Missouri Constitution, which addresses the state’s judiciary:

1. The paramount responsibility of Missouri courts is to ensure that individuals in this state may exercise the rights and freedoms the people have enumerated in this Constitution.

2. When in a lawsuit properly before one of this state’s courts one party timely asserts that a government entity  that is also an opposing party has enforced or has threatened to enforce against the asserting party a law, regulation, or policy that might limit the asserting party’s exercise of a specified right or freedom enumerated in this Constitution or might otherwise penalize the asserting party for exercising such a right or freedom, the court must assess the asserting party’s claim in the following manner:

(1) The court must determine whether the challenged law, regulation, or policy limits or penalizes the party’s exercise of the right or freedom the asserting party has specified, giving the right or freedom the broadest scope that is consistent with the plain meaning of each word and phrase in the relevant constitutional provision; the court shall not infer any exceptions to or limitations upon the right or freedom unless the exception or limitation is expressly authorized by this Constitution, and any ambiguity in the Constitution’s language shall be resolved by determining how each word or phrase in the relevant provision most likely would have been understood by the voters at the time they ratified that provision;

(2) If the facts of the case show that the challenged law, regulation or policy does limit or penalize a party’s exercise of a right or freedom articulated in this Constitution, the court must presume that the challenged law, regulation or policy is unconstitutional and must adopt a perspective of active and critical analysis that gives no deference to government assertions unsupported by competent evidence;

(3) The presumption of unconstitutionality may only be overcome if the government entity responsible for enforcing the challenged law, regulation, or policy presents to the court competent evidence sufficient to prove beyond a reasonable doubt that the challenged law, regulation, or policy is not only necessary for the prevention of a specific, non-speculative threat to the public health and safety, but also that the law, regulation or policy allows persons to exercise as much of the asserted constitutional right or freedoms as is consistent with preserving the public health and safety against the threat the government has demonstrated.

3. Any order or opinion in which a court of this state upholds the constitutionality of a law, regulation, or policy that restricts or penalizes a right or freedom enumerated in this Constitution must identify any specific government interest served by the restriction or penalty as well as the evidence the court relied upon to determine that the law, regulation, or policy represents the least-restrictive means of serving the specified government interest.

4. Any other provision of this Constitution notwithstanding, a judge’s failure to comply with the terms of this section shall be valid grounds for impeachment.