Academic journal article Missouri Law Review

Falling through the Cracks: Missouri Amends Its Felon Firearm Possession Statute

Academic journal article Missouri Law Review

Falling through the Cracks: Missouri Amends Its Felon Firearm Possession Statute

Article excerpt

Missouri Revised Statute [section] 571.070

I. INTRODUCTION

In early September 2007, police in Cape Girardeau, Missouri, arrested a previously convicted felon whom they discovered driving with a loaded gun, a magazine of ammunition, and a stun gun in his vehicle. (1) The man, who was convicted in Illinois in 2000 for sexual abuse and failing to register as a sex offender, was later released after police determined that his possession of the gun, ammunition, and the stun gun did not violate Missouri law. (2) This incident inspired Cape Girardeau County Prosecuting Attorney H. Morley Swingle to lobby for changes to Missouri's statute prohibiting some felons from possessing firearms. (3)

Influential state legislators, including the president pro tem of the senate, immediately expressed support for Swingle's proposed revisions to the law. (4) On June 26, 2008, Governor Matt Blunt signed Missouri House Bill 2034 into law which, among other things, made it easier for a person previously convicted of a felony to be arrested and prosecuted for possessing a firearm. (5)

The changes made by the 2008 Missouri Legislature to the state's felon-in-possession law were mostly improvements. While the changes were intended to enact "better protections ... to prevent dangerous felons from falling through the cracks when it comes to firearm possession," (6) it is not clear that the drafters of the new statute considered all of the potential consequences arising from the changes. While some of the consequences are positive and will resolve the legitimate concerns expressed by prosecutors (7) and the media, (8) a number of unintended outcomes may arise from the new formulation of the statute as well. This Note argues that the state legislature should have enacted a statute following the contours of the federal statute in pursuit of a consistent, simple approach to regulating felons' possession of firearms. This Note also reviews the general background of laws prohibiting felons from possessing firearms, considers the constitutional implications of those laws, and critically examines the recent changes to the Missouri felon-in-possession statute.

II. LEGAL BACKGROUND

The federal government and many states have enacted legislation that prohibits, to some extent, a felon from lawfully possessing a firearm. State and federal laws vary widely, each with its own nuances and exceptions.

A. Federal Approach

Under 18 U.S.C. [section] 922(g), felons may not "possess ... any firearm or ammunition; or ... receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." (9) The statute defines a "firearm" as "any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive" as well as the frame of such a weapon, a muffler or silencer, or a destructive device. (10) However, it is important to note that "antique firearms" are expressly excluded from this definition. (11) The "antique firearm" exception allows persons otherwise prohibited from possessing firearms to own firearms manufactured during or before 1898, certain replicas, and muzzleloading guns that cannot fire fixed ammunition. (12) Even modern muzzleloaders that could be purchased in a retail store fall within the definition of an "antique firearm." (13)

The restrictions present in 18 U.S.C. [section] 922(g) apply to "any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year," (14) although certain exceptions narrow this definition. For example, persons charged with federal or state crimes "pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices" are not included. (15) In addition, those convicted of state crimes punishable by a term of imprisonment of two years or less but considered misdemeanors are also excluded. …

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