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State of Disrepair

Showing Missouri

by CHRISTOPHER BRAUCHLI

I come from a state that raises corn . . .and Democrats and frothy eloquence neither convinces nor satisfies me.  I am from Missouri.  You have got to show me.

Willard Duncan Vandiver, Speech at Naval Academy 1899.

In order to place things in perspective when looking at Missouri it helps to consider that there are worse things in that fair state than the Ferguson police department.  Consider the justices on its Supreme Court, the state legislature and, as they most recently demonstrated, its voters.

The Justices on the Missouri Supreme Court have spent considerable time during the last few years on lawless excursions in the state’s death chambers. The Justices have repeatedly shown that they do not subscribe to the legal principles followed by most state courts.  The principles they ignore are those that require that executions of those on death row should not take place while the prospective beneficiaries of the process have appeals pending before federal courts requesting postponement of the event. In a thoughtful dissent in the 2014 case of Zink, Nicklasson et al vs. Lombardi Judge Herbert Bye, a member of the U.S. Court of Appeals for the 8th Circuit, reviewed the Missouri Supreme Court’s unwillingness to defer to federal courts when it came to executions.

In his dissent he wrote that: “Missouri has a well-documented history of attempting to execute death row inmates before the federal courts can determine the constitutionality of the executions.” He observed that among the court’s many wanderings through the death penalty process was the 1983 case of Doyle Williams.  The Missouri Supreme Court set a time for Mr. Williams to expire at the hands of the executioner before the time for Mr. Williams to appeal his conviction and death sentence had expired.  In staying the execution, U.S. Supreme Court Justice Harry Blackmun explained to the Missouri Justices that legal protocol required that condemned criminals should not be killed by the state until all their federal appeals had been exhausted.  A few months later the Missouri Justices again set a date for executing four condemned men before the time for them to appeal had run and again Justice Blackmun admonished the Missouri Justices saying: “If Missouri fails to fulfill its responsibility, I shall fulfill mine.”

The Missouri Justices who did not appreciate being admonished by a United States Supreme Court Justice ignored Justice Blackmun and continued in their free wheeling ways.  In January 2014 they permitted the executioner to execute Herbert Smulls 30 minutes before the U.S. Supreme Court had acted on Mr. Smulls’ request for a stay.  (The Justices were prescient-Mr. Smull’s request was turned down-after he was dead.)  It is not only the court that acts in ways that non-Missourians find difficult to understand. The legislature is a close second.

In 2007 the Missouri legislature repealed a law that had been in effect for several years requiring would-be gun buyers to be vetted and licensed by a local sheriff prior to the purchase.  According to a report in the Journal of Urban Health following that law’s repeal there were an additional 60 gun-related murders in that state each year between 2008 and 2012.  In February 2014 the Missouri legislature considered another broad gun rights bill.  One of its provisions required that a gun owner report the theft of a firearm within 72 hours after discovering the theft.  The NRA believed that such a reporting provision implicated the 2d Amendment’s guarantees and at its urging, that provision was stripped from the bill.  Although the NRA’s rationale is not immediately obvious, it may well be that if a person reports to authorities that his or her gun has been stolen the person is admitting that he or she had a gun and that is clearly no one’s business and a violation of the reporter’s second amendment rights. The people of Missouri, of course, elect their legislators and a recent vote suggests they get what they deserve.

On August 5, 2014 voters approved Amendment 5 to the Missouri Constitution by a 64% margin.  That amendment states that: “The right of every citizen to keep and bear arms in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned.  The rights guaranteed by this section shall be unalienable.  The state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement.”

Michael Boldin, the Executive Director of the Tenth Amendment Center, said that the passage of the amendment was merely the first step in nullifying all federal gun laws and regulations in force in Missouri.  As he explained:  “Today was step one.  Step two is now.  Pass the 2d Amendment Preservation Act, banning state enforcement of every so-called federal gun law.  And from there, step three and four will be to bring gun control to an end in Missouri.”

Missouri calls itself “The Show Me State.”  Someone should accept its invitation.  It needs all the help it can get.

Christopher Brauchli is an attorney in Boulder, Colorado. He can be emailed at brauchli.56@post.harvard.edu.