Schuler Smith Response

8/22/2019 Schuler Smith Response

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IN THE SUPREME COURT OF MISSISSIPPI

STATE OF MISSISSIPPI PETITIONER

v CAUSE NO. 2013-M-01220

ROBERT SHULER SMITH, DISTRICT ATTORNEYFOR HINDS COUNTY, MISSISSIPPI, et al RESPONDED 1S

RESPONSE IN OPPOSITION TO THE STATE OF MISSISSIPPIS

COMBINED PETITION TO VACATE A PERMANENT INJUNCTION AND EMERGENCY PETITION FOR INTERLOCUTORY APPEAL

COME NOW the Respondents-Plaintiffs, Robert Shuler Smith, et al, and file this their

response in opposition to the State of Mississippis Combined Petition to Vacate a Permanent

Injunction and Emergency Petition fo r Interlocutory Appeal, and in support thereof would show

the following:

I. Factual and Procedural Background

The State of Mississippi adequately provides the factual and procedural posture of this

action. Consequently, Respondents will not restate it here. The Respondents, however,

quarrels with the States, Governor Phil Bryants and 80 Legislators contention that the right to

keep and bear arms unconcealed in public is sacrosanct and that the Legislature lacks authority to

restrict open carry. The question of whether Article 3, 12 of the Mississippi Constitution o f

1890 guarantees a right to open carry that may not be restricted is a contested question of law

which properly was submitted to and resolved by Hinds County Circuit Court Judge Winston

Kidd (hereinafter Judge Kidd).


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II. Statement of the Issues

A. Whether the phrase called not be called into question means theMississippi Legislature cannot place reasonable restrictions, consistent

with public safety and Article 3, 12, on the right to keep and bear arms

in public?

B. Whether House Bill 2 is unconstitutionally vague on its face as a matter

of law? .

C. Whether Judge Kidd violated the Separation of Powers Doctrine?

III. Argument

------------------------- THEtEGISIrATOREMAYPIrAeEIHKASONABtE------------------------

RESTRICTIONS ON THE RIGHT TO OPEN CARRY

In House Bill 2, the legislature codified open carry, a right it contends is found in Article

3, 12 of the Mississippi Constitution of 1890. The State, the Governor and 80 Legislators

argue the Mississippi Legislature cannot restrict open carry. This result, they say, is compelled

by Article 3, 12 of the Mississippi Constitution of 1890. It provides [T] he right of every

citizen to keep and bear arms in defense of his home, person, or property, or in the aid of the

civil power when thereto legally summoned, shall not be called into question, but the

legislature may regulate or forbid carrying concealed weapons.

Assuming arguendo there is a right to open carry in Article 3, 12, it does not deprive

the legislature of the authority to restrict open carry. Article 3, 12 does not say that the

Mississippi Legislature may not place reasonable limitations consistent with public safety and

Article 3, 12, on the right to keep and bear arms. Rather it provides that the right to keep and

bear arms shall not be called into question. This Court has never addressed the question of

what shall not be called into question means. District o f Columbia v.Heller, 554 U.S. 570, 595

128 S.Ct. 2783,171 L.Ed.2d 637 (2008).

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The drafters of Mississippis Constitution in 1890 used the phrase shall not be called

into question in Article 3, 12, while the drafters of the Second Amendment employed the

phrase shall not be infringed in guaranteeing the right to keep and bear arms. The Second

Amendment provides that A well regulated Militia, being necessary to the security of a free

state, the right of the people to keep and bear arms, shall not be infringed. Unlike this Court, the

United States Supreme Court has determined what the phrase means by the right to keep and

bear arms shall not be abridged found in the Second Amendment means. District o f Columbia

Af7fh//eA-5T4'U:SrS70r595-6-00r(2008)-.------------------------------ -

InHeller, the court held the operative clause of the Second Amendment meant whether

there was a response to deny Congress power to Abridge the ancient right of individuals to

keep and bear arms, so that the ideal of a citizen militia would be preserved. Id. at 595-600. The

HellerCourt said its interpretation is confirmed by analogous arms-bearing rights in state

constitutions that preceded and immediately followed the Second Amendment. Id. at 600-60o.

Mississippi was one of nine states that adopted analogues to the Second Amendment of the

United States Constitution between 1789 and 1820. Heller, 554 U.S. at 595.

TheHellerSupreme Court pointed out it:

....found only one early-19th century commentator who clearly conditioned

the right to keep and bear arms upon service in the militia - and he recognized

that the prevailing view was to the contrary. 'The provision of the constitution,

declaring the right of the people to keep and bear arms, &c. was probably

intended to apply to the right of the people to bear arms for such [militia-

related] purposes only, and not to prevent congress or the legislatures of the

different states from enacting laws to prevent the citizens from always goingarmed. A different construction however has been given to it.

Id- at 601, quoting B. Oliver, The Rights of an American Citizen 177 (1832).

The debate about individuals rights to keep and bear arms continues today. In 2008, the

HellerCourt resolved in the affirmative the long debated question of whether an individual has

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the right to keep and bear arms in his home under the Second Amendment. Heller, 554 U.S. at

595. In putting that issue to rest, the Supreme Court, stated the Second Amendment does not

protect an individuals right to keep and carry any weapon whatsoever in any manner

whatsoever and for whatever purpose. 554 U.S. at 626. (boldness added). The Supreme

Court did not resolve the right to open carry inHeller. Moore v.Madigan, 702 F.3d 933, 942

(7th Cir. 2012). Nevertheless, the Seventh Circuit Court of Appeals, readHellerfor the

proposition that an individual has a right to open carry outside of the home. IcL

-----------The*SFventh'Circuit7however,'Teco_gnized'the"right1;o^keepmid"beara rm s open carry -

is not sacrosanct. 702 F.3d at 933. InMoore, the Seventh Circuit Court oT Appeals

acknowledged Illinois could impose reasonable limitations, consistent with public safety and the

Second Amendment, on the right to open carry. Id. The Court overturned two federal district

courts orders that rejected constitutional challenges to Illinois flat ban on carrying ready-to-use

guns outside of the home. Id. at 934. At issue was Illinois ban on open carry of unloaded guns

in public, other than to police and other excepted persons, unless the gun was carried openly

outside a vehicle in an unincorporated area and ammunition for the gun was not immediately

accessible. Id. The Court held that the limits Illinois placed on open carry, went too far, but it

gave the legislature 180 days to fashion reasonable limitations, consistent with public safety and

the Second Amendment, on the right to open carry.

WhileHellerandMoore dealt with the Second Amendment, they nonetheless are

instructive, inasmuch as they teach that the right to keep and bear arms was never meant to be

untouchable. InHeller, the Court stated that its determination that the right to keep and bear

arms shall not be abridged was a response to prohibit Congress from banning the right was

confirmed by analogous arms-bearing rights in constitutions that preceded and immediately

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followed adoption of the Second Amendment. 554 U.S. at 600-601. TheHeller Court pointed

out that Mississippi was one o f nine states that adopted Second Amendment analogoues between

1789 and 1820. Like the justices inHeller, Judge Kidd recognized, that shall not be called into

question does not mean the Legislature may not impose reasonable restrictions on the right to

open carry if the right to open carry exists in Mississippi. If the right to open carry is found in

the Constitution of 1890, Shall not be called into question, means the Legislature may not ban

the right to keep and bear arms for self-defense in Mississippi. Similar to the judges inMoot e,

Uudge^KidddidmotspeculaterbutTeft-it-to-the'MississipprLegislaturefo-determine-the

reasonable limitations, consistent with public safety and Article 3, 12, it may constitutionally

impose on the carrying of weapons in public.

HOUSE BILL 2 IS UNCONSTITUTIONALLY VAGUE

The contours of the void for vagueness doctrine are reasonable familiar. Meeks v.

Tallahatchie County, 513 So.2d 563, 566 (Miss. 1987) citing Connolly v. General Construction

Co., 269 U.S. 385,46 S. Ct. 126, 70 L.Ed. 322 (1925). In Connolly, the United States Supreme

Court stated that [A] statute which either forbids or requires the doing of an act in terms so

vague that men of common intelligence must necessarily guess at its meaning and differ as to its

application violates the first essential of due process. 269 U.S. at 391. An unconstitutionally

vague statute or regulation is unenforceable. Meeks, 513 So.2d at 566, citingA.B. Small Co. v.

American Sugar Refining Co., 267 U.S. 233, 242, 45 S.Ct. 295, 298, 69 L. Ed. 589, 594-95

(1924).

In addition, the United States Supreme Court has held that:

The void-for-vagueness doctrine requires that a penal statute define the criminal

offense with sufficient definiteness that ordinary people can understand what

conduct is prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement. . . . Where the legislature fails to provide such

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m i n i m a l guidelines, a criminal statute may permit a standard-less sweep that

allows policemen, prosecutors, and juries to pursue their personal predilections.

Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). Moreover, House Bill 2 requires men of

common intelligence [to] necessarily guess at its meaning and differ as to its application.

Zwickler v. Koota, 389 U.S. 241, 249 (1967) (citing Connally v. General Construction Co., 269

U.S. 385, 391 (1926)). These decisions make clear that any statute that causes men o f common

intelligence to guess at it meaning and differ as to its application is an unconstitutionally vague

statute. _______________________

HIDDEN OR OBSCURED FROM COMMON OBSERVATION

AND REFERENCES TO WHOLLY OR PARTIALLY VISIBLEARE UNCONSTITUTIONALLY VAGUE

House Bill 2 defines concealed as hidden or obscured from common observation.

This definition does not provide adequate guidance to the public or law enforcement officials,

like the Plaintiff Sheriff and Constable in this case, on how to properly abide by and apply and

enforce the law. A statute must embody only as much exactness as the subject matter permits.

Vance v. Lincoln Cnty. Dept o f Pub. Welfare by Weathers, 582 So. 2d 414, 419 (Miss. 1991)

(citations omitted). The exactness, though, should be adequate enough to ensure that [v]ague

laws [do not] trap the innocent by not providing fair warning. Grayned v. City o f Rockford, 408

U.S. 104,108 (1972).

The question is whether House Bill 2 is so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its application. State ex rel. Hoodv. Louisville

Tire Ctr., Inc., 55 So. 3d 1068, 1071-72 (Miss. 2011) (citation omitted). Respondents submit

that General Hood is a man of common intelligence and he recognizes that House Bill 2 has

created quite a bit of confusion in the community. (See, Exhibit A, Attorney General Jim

Hoods Interview with WAPT). If the States top law enforcement officer publicly

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acknowledges House Bill 2 is confusing, there is no question that other men of common

intelligence may espouse the same view, while other men necessarily may differ.

House Bill 2' is unclear as to whether hidden or obscured from common observation is

referring to the weapon or any part of the holster or case, that the weapon is contained in. While

the common sense definition of concealed is not contested, the application of the definition to

different objects - the weapon, holster or case - is unconstitutionally vague.

In House Bill 2, the legislature set forth several examples of what is not a concealed

--weapon"Th-ese-example'shall-short-ofproviding-any~guidancehohhexommompersonr espeeially-

law enforcement officials charged with applying and enforcing thelaw. For example, House

Bill 2 references a pistol carried upon the person in a sheath, belt holster or shoulder holster

that is wholly or partially visible. House Bill 2 does not make clear whether the sheath, holster,

case or the weapon, itself, need not be concealed.

As for wholly or partially visible, the question again is raised: what object - the

sheath, belt holster, shoulder holster or weapon - must be wholly or partially visible. As it is

now written, it is not clear whether the weapon needs to be wholly or partially visible or i f the

sheath, belt holster, shoulder holster or case must be wholly or partially visible. If it is only

the carrying apparatus that must be wholly or partially visible, then the question turns to

whether common observation requires the ability to ascertain the contents of the carrying

apparatus.

The answer matters, because seeing someone carrying a case gives no indication that the

person is carrying a deadly weapon. At risk of stating the obvious, gun cases need not resemble

the guns they contain.


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For example, is this 9 x 7.5 pink bag a childrens purse sold by Mississippi State, or a

gun case?

It is a gun case.1Similarly, is this rolling briefcase case a gun case or a heavy-duty litigation

bag?

Click to enlarga

It apparently can be either, but Pelican sells it in the Gun Cases - Pistol, Rifle, Shotgun &

Handgun section of its website.

Widespread confusion will result if House Bill 2 treats any partially visible case as an

openly-carried weapon, because it will not be clear to a reasonable observer that a weapon is

1 This is the "Bulldog Pink Molded Pistol Case/' available for $17.99 at www.cabelas.com (last

accessed July 4, 2013).

2 Seehttp://www.pelican-case.com/pelguncaspis.html (website last accessed July 4, 2013).
http://www.cabelas.com/http://www.pelican-case.com/pelguncaspis.htmlhttp://www.pelican-case.com/pelguncaspis.htmlhttp://www.cabelas.com/


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being carried next to them. That puts law enforcement in a bind because they will not know

whether the weapon in that circumstance is carried openly or is concealed under Mississippi

law. If the carrier of the pink gun case lacks a conceal carry permit, should she be arrested or

fined for that lack of permit, since no one around her knows shes carrying a weapon, or not

arrested because her case is wholly or partially visible?

Therefore, without more accurate language by the legislature, citizens and law

enforcement do not know what part of the carrying apparatus containing a weapon must be

_pMiMyTrwEbll5^ikible^Thls^mbiguity_places"citizens_andTawenforcement-officials-atTisk

of unknowingly violating the law because they lack a proper understanding of what the law

requires.

The Application ofHouse Bill 2 In Relation to Other Statutes Is Unconstitutionally Vague

The altering of the definition of concealed by House Bill 2 also is unconstitutional

because it is unclear how House Bill 2 interacts or intersects with preexisting statutes. House

Bill 2 suggests, but is not clear, that any person ofany age, any residency status, any mental

health disability, and any controlled substance abuser may openly carry a firearm in plain view

into a church, prison, bar, and university, among other places. One of the critical legal questions

presented by this case is whether the amendment contained in paragraph 14 of Mississippi Code

45-9-101 completely nullifies the comprehensive statutory regime for all persons openly

carrying a firearm or whether the amendments retain the requirements o f paragraph 14 but allow

persons unqualified to conceal carry to open carry.

In its brief, the State acknowledges that House Bill 2 does not clearly set forth who is

allowed to open carry. The state contends other state and federal statutes address who may

open carry. The State points to Miss. Code Ann. 97-37-5 as an example. That statute


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prohibits convicted felons from possessing firearms. It is elementary that i f a felon is prohibited

from possessing a weapon, a felon cannot open carry under Mississippi law.

The State argues 18 U.S.C. 922 (g) governs who may open carry in Mississippi. The

State says 18 U.S.C. 922 (g) prohibits the possession of firearms by felons, drug-addicts,

persons adjudicated as mentally defective and persons convicted o f domestic violence. Title 18

U.S.C. 922 (g) prohibits certain individuals under federal law from shipping or transporting in

interstate or foreign commerce, or possessing in or affecting commerce, any firearm or

ammunition; or r e c e i v i n g " any~firearm"ormmnumitionwyhich-'has--been-shipped-or--transported-in-

interstate or foreign commerce.

Title 18 U.S.C. 922 (g), however, has nothing to do with open carry. The federal right

to open carry, if there is such a right, would emanate from the Second Amendment to the United

States Constitution.

InMoore, the Seventh Circuit recognized the Supreme Court has not yet addressed the

question of whether the Second Amendment creates a right of self-defense outside the home.

702 F.3d at 935. The Moore Court, however, heldHeller and its progeny, permit open carry but

acknowledged that the Illinois legislature could ...impose reasonable limitations, consistent

with public safety and the Second Amendment as interpreted in this opinion, on the carrying of

guns in public. Id. at 942. InHightowerv. City ofBoston, 693 F.3d 61, 72 n. 8, 1st Cir. 2012)

the First Circuit Court of Appeals declined to make a determination of whether the right to carry

firearms outside o f the home is permitted by the Second Amendment.

That aside, Title 18 U.S.C. 922 (g) is a federal law, which does not and cannot

prescribe conduct under Mississippis Constitution and statutes. The States attempt to cloak

open carry with Title 18 U.S.C. 922 (g) confesses the States uneasiness with House Bill 2.

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More importantly, it concedes a point that the State, Governor Phil Bryant and 80 legislators

have vigorously opposed - the right to open carry in Mississippi may be restricted.

At the hearing before Judge Kidd, the State argued, [tjhey cannot, the legislature cannot

and the statute does not regulate the carrying of weapons in an open manner because the

legislature cannot. The legislature cannot restrict that. (See, Exhibit B, Transcript of June 31,

2013 hearing before Judge Kidd, p. 11,1. 24-25, p. 12,1. 1-3). The State also contended ... [as

the general matter, the legislature its true cannot restrict the open carry. They can restrict

co'ffitealeh_carry:Mhey-donATaveTo7rightf'"(TS!ee7*ExhibiPBrPJ ^ " ^ 2 - -2-5): -

Instead of hiding behind federal law, the State should point this Court to Mississippi

statutes parallel to Title 18 U.S.C. 922(g) that prohibit drug-addicts, persons adjudicated as

mentally defective and persons convicted of domestic violence from possessing weapons.

There are no such statutes. The only statute in Mississippi that prohibits drug-addicts,

alcoholics, and persons adjudicated as mentally defective from carrying weapons is the

concealed carry statute. See, Miss. Code Ann. 45-9-101(2)(e)(f)(h)(i).

House Bill 2 is unclear as to the precise locations where open carry is allowed. The

State argues that other statutes govern where an individual can openly carry a weapon in a

holster. Those statutes, however, are not mentioned in House Bill 2.

In addition, House Bill 2 does not state the purpose for which a person may open carry.

Likewise, House Bill 2 does not identify what weapons a person may open carry.

For the reasons outlined above, this Court should find that Judge Kidd did not err when

he found that House Bill 2 on its face is unconstitutionally vague.

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Judge Kidd Did Not Violate Separation-of-Powers Principles

The Attorney General maintains that the circuit court violated the separation of powers

by usurping the authority of the legislature to determine what is and is not a crime under

Mississippi law. Ironically, it is the Attorney General who is asking the Court to violate

separation-of-powers principles by vacating the trial courts valid exercise of a power granted

exclusively to the judicial branch: to say what the law is.

In the seminal 1803 case ofMarbury v. Madison, 5 U.S. 137 (1803), Chief Justice

MarshalT'explrcitlTvieclai-edAhat^^rjt-is-emphaticaliy-the-provinee-and-'duty-of-theUw^hzA/-

department to say what the law is.Marbury, 5 U.S. 137 (emphasis added).

The separation of powers between three distinct, separate authorities is a foundation of

the United States and this States system of government. In addition to the United States

Supreme Courts Marbury language, the very first lines of the Mississippi Constitution are

devoted to the separation of powers between the three branches of government. The Mississippi

Constitution bars each branch from interfering with powers granted to the others, as follows.

The powers of the government of the state of Mississippi shall be divided into

three distinct departments, and each of them confided to a separate magistracy,

to-wit: those which are legislative to one, those which are judicial to another, and

those which are executive to another. '

Miss. Const, art. 1, 1. Under the section entitled encroachment of power, these three distinct

departments are barred from any intrusion upon the others powers: No person or collection of

persons, being one or belonging to one of these departments, shall exercise any power properly

belonging to either of the others. Miss. Const, art. 1, 2. The Constitution makes clear that

[t]he judicial power of the State shall be vested in a Supreme Court and such other courts as are

provided for in this Constitution. Miss. Const, art. 6, 144.

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For the past century, the Courts have strictly upheld these Constitutional provisions, and

in just the last two years, the Court has delivered ringing endorsements of the importance of the

separation of powers doctrine. In 2009, the Court considered the constitutionality of a state

statute setting out a detailed procedure for a trial judge in a sex crimes case. Magyarv. State, 18

So. 3d 807, 810 (Miss. 2009). The statute required the trial judge to provide a defendant charged

with a sex crime with a written notification concerning sex offender registration,- and included

further procedural requirements that the trial court obtain written acknowledgement of the receipt

T)flhe_writtenmotifrcation7Md:

The Court focused its analysis on the legislative intrusion to the powers of the judiciary.

Justice Dickinson, in an en banc opinion with no dissent, declared that [a] basic tenet of

American government is judicial independence, and every state has a judicial branch of

government separate from its legislative branch.Id. at 810. Citing the constitutional provisions

set forth above, the Court stated that it would hold firm to the principle that Mississippis

legislative branch of government may not, through procedural legislation, control the function of

the judiciary.Id. Stated another way, this Court cannotconsistent with the Mississippi

Constitutionrelinquish to the Legislature the duties and powers constitutionally imposed upon

the Supreme Court. Id. at 810-11.

AfterMagyar's landmark underscoring of separation of powers, an en banc and

unanimous Supreme Court issued an opinion strongly emphasizing the paramount importance of

Article 1, Section 2. The Court examined recent budgetary issues in the State, and noted that

[a]s part of the separation of powers among, and checks and balances on, these three co-equal

branches of government, our Legislature has the duty to fund the judicial branch of government.

In re Fiscal Year 2010 Judicial B ran chAppropriations, 27 So. 3d 394, 395 (Miss. 2010).

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Pursuant to statute, the State Fiscal Office had begun to limit budgets throughout the

State, but the Court warned that such authority could not be exerted over the judiciary: To the

extent the State Fiscal Officer interprets [state law] to authorize reductions in the judicial

branchs budget, we hold that such interpretation is inconsistent with the Constitution of the

State of Mississippi.Id. at 395. Relying wholly on the Constitution of 1890, the Court ruled

that any funds duly appropriated for the judicial branch of government are not subject to

reduction pursuant to state law. Id.

----------ThereTsmnexonim-onTheme-to-bo1h-Mflg7flr-andT:-Re-F1T2(9-i-0f--the-Gourt-refesed-t0

allow the Legislature to intrude upon the inner workings of the judicial branch. Today, the

Attorney General asks the Court to depart from this established practice of upholding the

fundamental separation-of-powers principles upon which our government was founded, and

overturn an order that was squarely within the power of the judiciary to say what the law is.

The trial courts order did not infringe upon the Legislatures constitutional authority, and it must

be upheld as a valid exercise of the judicial branchs constitutional duty to say what the law is.

Conclusion

The trial court found, [HJouse Bill 2 does more than define concealed. It creates

confusion and chaos with respect to the enforcement of gun laws here in this state. First, House

Bill 2 does not clearly set forth who is allowed to openly carry a weapon in a holster.. .Next,

House Bill 2 does not state where an individual can openly carry a weapon m a

holster... .Many other factors lead to this Courts finding House Bill 2 to be vague and, therefore,

unconstitutional.. . .A reasonable person reading the bill can not discern what the law allows and

what it prohibits. For these reasons and the reasons outlined above, this Court should affirm

Judge Kidds decision and deny the States Motion to Vacate the Permanent Injunction.

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RESPECTFULLY SUBMITTED, this the 5^ day of August, 2013.

Law Offices of Lisa M. Ross

514 E. Woodrow Wilson Avenue Bldg. E

Jackson, MS 39216

Telephone (601) 981-7900

[email protected]______________

I, Lisa Mishune Ross, one of the attorneys of record for Plaintiffs, do hereby certify that I

have delivered by email and U.S. Mail a copy of the foregoing response to:

SO CERTIFIED, this the 5fy day of August, 2013.

Respectfully Submitted,

Lisa Mishune Ross, MSB #9755

CERTIFICATE OF SERVICE

Harold E. Pizzetta, III

Office of the Attorney General

Post Office Box 220

Jackson, Mississippi 39205

Lisa Mishune Ross

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