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Fate of gun law rests on wording

The state high court has yet
to agree to hear the case.
Wednesday, November 12, 2003 | 12:00 a.m. CST; updated 10:01 p.m. CDT, Sunday, July 20, 2008

It’s a matter of interpretation.

The fate of concealed guns in Missouri might come down to the meaning of one word.

“What does the word ‘shall’ mean?” said Rick Hardy, an MU professor of political science who has taught U.S. and Missouri constitutional law. “If ‘shall’ is permissive as opposed to restrictive, then you’ve got a different outcome.”

Missouri’s conceal-and-carry law, declared invalid by St. Louis Circuit Judge Steven Ohmer last week, stands a good chance of debate in the state Supreme Court. Attorney General Jay Nixon appealed to the high court to put the case on the fast track, though the court has not yet taken the case.

Ohmer’s decision hinged on a clause in the state constitution that affirms the right of citizens to bear arms in their defense. It also states, however, that “this shall not justify the wearing of concealed weapons.”

Hardy said if the case goes to the state Supreme Court, interpretation of that clause will be a matter of politics rather than constitutional sense.

“This is going to be a political decision disguised as a judicial decision,” Hardy said. “You can find legal fodder to make your case on either side.”

Of Missouri’s seven Supreme Court judges, four were appointed by Democrat governors and three by a Republican governor. Longtime court watcher John Ballard of Ashland said the justices tend to lean toward the political preferences of the governors who appointed them. In this case, however, Ballard said the question before the court is a linguistic one.

“Anyone displeased with court rulings always says, ‘This is political,’” said Ballard, who was state specialist in governmental affairs with MU until that extension program was discontinued in 1992.

“It will go to the Supreme Court directly because it deals with constitutional interpretation,” Ballard said.

Ballard has been a private consultant on government matters for about 12 years, and he said a majority of the questions he receives deal with reading and interpreting laws.

“There aren’t many rules” when it comes to making sense of legal language, Ballard said.

“Generally in interpreting law, ‘shall’ is taken to be mandatory,” Ballard said.

But without a clear precedent on conceal and carry, history is the question mark in this case — what attorneys call the “original intent” of the lawmakers.

“People are busy scouring things from 1875 trying to figure out what they meant,” said Kenneth Winn, Missouri’s state archivist.

Ohmer’s decision was the first answer to that question.

“Until now, there’s been no case on point as to what that phrase means,” said Richard Miller, an attorney for the plaintiffs who filed the lawsuit that waylaid the conceal-and-carry law.

“We didn’t find it, and the NRA didn’t find it,” Miller said.

Since the plaintiffs filed their suit, lawyers and reporters have been dredging up records of Missouri’s 1875 constitutional convention. Unfortunately, there aren’t many experts on the Missouri Constitution, said Roger Goldman, a professor of constitutional law at Saint Louis University.

“It’s not unusual that you can’t find people,” Goldman said. “State constitutions are typically ignored.”

Goldman said that’s why he wasn’t surprised that a constitutional question on this particular law took so long to emerge — after the law was debated, passed, vetoed and then voted into effect.

Although Gov. Bob Holden told the St. Louis Post-Dispatch he vetoed the law because he “didn’t think it was constitutional,” the veto order detailing his objections to the law makes no mention of the Missouri Constitution.


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