If you force a guy to bring a knife to a gun fight, the outcome of the fight doesn’t tell us much (unless knife guy wins).
Imagine that the government compels you to defend yourself in a duel. And your life and liberty hangs (in part or in whole) in the balance. Should you have to defend yourself with an inferior government-issued weapon? Heck, no. But sadly, that’s Missouri’s status quo.
The right to bear arms – whether on our person, in our car, or in our castle – is one Missouri has vigilantly protected.
But our other Constitutional right of self-defense – the right to counsel – is one Missouri has long neglected.
Self-defense is the core of both the Second Amendment right to bear arms and Sixth Amendment the right to counsel. And an individual’s right to defend oneself from the government should be sacrosanct – on both fronts.
The legitimacy of the criminal justice system hinges on the idea that a clash between two relatively equal sides will produce an accurate result. Conversely, we cannot be confident in the integrity of a criminal conviction unless that individual had an effective attorney to combat the government’s prosecution.
Although we’ve fortified our right of self-defense under the Second Amendment nearly every year for the last fifteen in Missouri, we’ve done virtually nothing to stop the government from trampling upon our Sixth Amendment right to self-defense during that same period. Missouri is 49th in the nation for per-capita indigent defense spending. According to a lawsuit filed in 2017, Missouri does not provide an adequate defense to the indigent in 97% of cases.
Second Amendment supporters should note that Missouri’s Sixth Amendment constitutional crisis affects gun rights.
Were we to graph the number of people who have lost their right to bear arms for life under the federal Gun Control Act, it would look like a hockey stick —going up and up and up. Under that law, any person convicted of a felony or a misdemeanor crime of domestic violence loses his/her gun rights. In 2016, America had an estimated 23 million convicted felons, meaning that over 10% of adults in America have been stripped of their gun rights by federal law. And that doesn’t include individuals who lost their gun rights due under that law for misdemeanor convictions, nor does it cover individuals who have lost their gun rights under (often broader) state laws that strip individuals of gun rights for misdemeanor convictions. The federal government has 77.7 million individuals — nearly one in three American adults — in its criminal records database. The national “no gun” registry grows exponentially every year.
Justice Clarence Thomas recently broke a decade-long silence during oral arguments to sound the alarm about the federal Gun Control Act’s expansive sweep in Voisine et al. v. United States (2016). His dissenting opinion explained:
[A] single conviction under a state assault statute for recklessly causing an injury to a family member—such as by texting while driving—can now trigger a lifetime ban on gun ownership. And while it may be true that such incidents are rarely prosecuted, this decision leaves the right to keep and bear arms up to the discretion of federal, state, and local prosecutors. We treat no other constitutional right so cavalierly. At oral arguments, the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine.
The federal government strips those with qualifying convictions of their fundamental right to have a firearm to defend themselves and their families. And if the individual was convicted in Missouri, we cannot be confident that the individual did not unjustly lose that fundamental right.
Not Fake News
The Sixth Amendment constitutional crisis in Missouri is real. I worked for the Missouri State Public Defender (“MSPD”) as a trial attorney in Columbia, Missouri. In just over three years, I handled over 1,000 cases – more than one case per day – ranging from trespass to murder in the first degree. I knew (well before the Missouri Supreme Court disciplined a career public defender) that handling that many cases would inevitably lead me to violate my ethical duties to my clients of diligence, competence, and communication. So, I left.
MSPD’s situation has not improved since I left in 2010. In fiscal year 2016, MSPD’s 313 trial division attorneys opened 78,956 cases – an average of more than one case per workday per attorney. Given the caseloads that our public defenders are currently carrying, it’s evident (based on my own personal experience and the evidence from 10 independent studies) that the indigent in Missouri are being stripped of their liberties and years of their lives in unfair fights in court daily.
It’s Your Problem Too
This Sixth Amendment constitutional crisis presents a threat to the liberty and safety of every man, woman and child in Missouri. It threatens your liberty because, the less oversight there is on the government as it strips other citizens of liberty, the more likely it is that the government could wrongfully convict you. It threatens your safety because the unfairness it creates causes mistrust of the system by and less cooperation from the community, rendering law enforcement less capable of solving crimes. Yet, despite the threats presented, the Sixth Amendment constitutional crisis in Missouri continues. And the Missouri Legislature seems complacent.
Unless being forced to bring a knife to a gun fight (oddly) appeals to you, text/tag/tweet/contact your state legislators. Tell them to stop treading upon our 6th Amendment right of self-defense from the government.
Jennifer Bukowsky is a constitutional and criminal defense attorney in Columbia, Missouri. She is also a regular Missouri Times columnist and a weekly guest on the Gary Nolan Show. She serves on the Missouri Supreme Court’s Task Force on Criminal Justice, on the Board of Directors of the Show-Me Institute, and on the Steering Committee of the Federalist Society–Jefferson City Lawyers Chapter.
Jennifer defended a client who was found “not guilty” of murder – the only “not guilty” on a Boone County murder in over 50 years. She also won the release of a man who was wrongfully convicted and served over 20 years – since age 14 – for a murder he did not commit. Jennifer has received numerous awards for her skills as a trial and appellate attorney.
Jennifer was a Trump delegate at the RNC in 2016. She previously served as an adjunct professor of law for the University of Missouri, and as the youngest-ever President of the Boone County Bar Association.
Jennifer received a J.D. with highest honors from the University of Missouri School of Law. She is also a CPA.