Gun rights in Kansas: High court hears arguments in Sedgwick County case

Should people who are drunk have the right to keep a loaded gun in their car for self-defense?

That’s the question before the Kansas Supreme Court in a case that is likely to shape future legislation about gun rights in the Sunflower State.

The state’s high court appears skeptical of a Sedgwick County judge’s reasoning for striking down a state gun law as unconstitutional. But the justices may ultimately reach the same conclusion.

At issue is a 2014 Kansas statute that makes it a crime for a loaded gun to be within an intoxicated person’s “immediate access and control while in a vehicle.”

Sedgwick County District Judge Kevin M. Smith ruled that the language of the law is overly broad and unconstitutional on its face because it “bans persons who take reasonable precautions while under the influence of alcohol or drugs from exercising their Second Amendment right to keep and bear arms in defense against deadly assaults.”

Smith dismissed a criminal case against 24-year-old Hunter C. Clift of Leon in 2024. The Sedgwick County District Attorney’s Office appealed to the state’s supreme court, which held a hearing on the case last week.

Clift was arrested in Wichita’s Old Town district in February 2024 and charged with illegally possessing a firearm in a vehicle while intoxicated. Wichita police stopped Clift’s car, which was being driven by his girlfriend, because his black Dodge Challenger matched the description of a car reported near a shooting in the area.

Clift, a concealed-carry license-holder, was not driving the vehicle, and he did not have a gun on his person. He cooperated with police and immediately alerted them to a loaded gun between the front seat and the center console. He also consented to a field sobriety test, which an officer said he failed.

He was arrested, questioned by police and booked into Sedgwick County Jail, where he expressed consternation about the arrest during a phone call, which is quoted in court filings: “Because I had a weapon in my car? I have conceal and carry. Do you not expect me to carry in Wichita?”

Smith, the district judge, agreed with Clift that he should be able to have a gun in his car while traveling through Wichita, intoxicated or not. He wrote that the 2014 law “not only placed defendant (Clift) at risk of harm or death but also his girlfriend,” who had been his designated driver.

“This is unacceptable given the unalienable nature of the right to keep and bear arms for the purpose of self-defense, regardless of where the deadly act that necessitates defensive deadly force occurs,” Smith wrote.

Smith wrote that the law would be valid “only if such a statute were narrowly directed at actual possession, as in directly on the person.”

The 2014 law requires firearm owners who are intoxicated to either leave their guns at home or lock them up in the trunk or glove box so they can’t access them. Smith wrote in his opinion that such a prohibition leaves intoxicated people defenseless when they’re met with deadly force while in a vehicle, imposing “an incomparable burden on the right to keep and bear arms.”

Smith also noted that the circumstances surrounding Clift’s arrest provide further support for his need to protect himself.

“It’s notable that there was a drive-by shooting in the area at the time of the traffic stop, which placed everyone in the vicinity at great risk of harm or even death absent the ability to exercise deadly force to defend against such deadly force,” Smith wrote.

First Amendment vs. Second Amendment

Sedgwick County Assistant District Attorney Lance J. Gillett appealed to the Kansas Supreme Court seeking a reversal of Smith’s ruling. He wrote that Smith misapplied a legal doctrine reserved for the First Amendment on a Second Amendment case.

“There is no ‘overbreadth’ doctrine for the Second Amendment in either United States Supreme Court, or this Court’s, precedent,” Gillett wrote in his brief with the Supreme Court.

“Because the district court applied a nonexistent and inapplicable legal analysis, from beginning to end, in order to find [the statute] ‘over-broad’ and therefore facially unconstitutional in contravention of the Second Amendment, it must be reversed on this basis alone,” Gillett wrote.

During oral arguments Oct. 29, Gillett repeated his displeasure with Smith’s ruling to the Kansas Supreme Court.

“Whatever analysis was being conducted here by the district court, it is unclear,” Gillett said. “But what is clear is that it was not the proper Second Amendment, facial constitutional analysis, as is required by the United States Supreme Court precedent and historical precedent from this court as well.”

Justice Eric S. Rosen called Smith’s overbreadth analysis “unrelated to a typical constitutional facial challenge.” A typical facial challenge argues that a law is always unconstitutional, no matter how it’s applied or to whom, while an overbreadth analysis can strike down laws that are broad enough to capture both constitutional and unconstitutional activities.

“What do we do when there’s this kind of one-off or even two-off analysis by the district court to reach its conclusion?” Rosen said. “Do we just ignore it and say you’re right for the wrong reason?”

Modern gun restrictions vs. historic tradition

Gillett asked the Kansas Supreme Court to instead find the gun law constitutional based on a U.S. Supreme Court finding in New York State Rifle & Pistol Association v. Bruen. That requires courts to consider whether modern gun restrictions are consistent with the nation’s historical tradition of firearm regulation.

Kelley N. Reynolds, of O’Hara & O’Hara, argued for Clift. He said Smith ruled correctly in the case, and asked the court to uphold the decision, even if it disagreed with Smith’s use of the overbreadth doctrine.

“Mr. Clift was prudent and responsible in telling the police, upon their approach, that there was a firearm near him. Mr. Clift possessed a concealed carry license and had the firearm near him for self-defense. The People have a right to armed self-defense even when they are intoxicated,” Reynolds wrote in his brief.

The justices directed most of their questions to whether the prohibition on gun possession while in a vehicle and intoxicated fits in with the nation’s history and tradition of gun regulations.

The district attorney’s office pointed to several examples of prohibitions on firearm possession by people addicted to alcohol or with mental illness. Gillett said Clift was likewise unable to safely operate a firearm.

“It’s in the record his blood alcohol content was nearly twice the legal limit for driving a vehicle,” Gillett said. “And yet we’re supposed to just believe that this is an individual that could operate a firearm? You can’t operate a vehicle.”

Justice Caleb Stegall pushed Gillett to provide a specific historical law that was similar to the Kansas law banning intoxicated people from having a gun within reach.

“How would you articulate with specificity the historical analog that would support a finding that there are circumstances in which the statute could be constitutional,” Stegall said to Gillett.

“We don’t have to have a dead ringer or a historical twin,” Gillett said. “We’ve got to be close.”

He pointed to an 1886 Missouri law that prohibited those who are intoxicated from going abroad with firearms and an 1867 Kansas law that prohibited intoxicated people from carrying firearms.

“Can you point the court to anything that was contemporaneous with our founding?” Stegall said.

Gillett pointed to early 1800s laws in Massachusetts, Maine and Rhode Island that prohibited people with alcohol addictions from militia service.

“Well, it doesn’t disarm individuals who are not members of a militia, does it?” Stegall said.

“In [a recent 2nd Circuit Court of Appeals decision], they explain that that prohibition was sound as an analog for prohibiting those with substance use disorders simply from possessing firearms,” Gillett said.

Rosen continued that line of questioning.

“How close does it have to be when we’re looking at the historical analog, in your mind?”

“The state actually does believe that the mentally ill — that category of offenders that have been historically prohibited from bearing arms — we believe that is an actually functional equivalent here,” Gillett said. “We’re talking about someone that is presently under the influence of alcohol to a degree that they could not safely operate a firearm. We’re talking about a moment in time, very brief. And so as a result, we do believe that that is comparable to someone that is mentally ill.”

“What we’re talking about is people in public who can’t use a gun safely, even if they tried,” Gillett said.

Possessing vs. using a gun while intoxicated

“Here’s my problem,” Justice Dan Biles said. “That approach the district court used seems to tell me that you have a right to defend yourself with a firearm — if you’re drunk, if you’re a domestic abuser, or if you have a violent criminal history that regardless of anything else, you’ve still got a right to defend yourself with your firearm. And don’t we have to deal with that analysis first? If nothing else, to put it out of its misery, so that we can then get to the merits?”

“We do, your honor,” Reynolds said. “There are times where there will be restrictions that are constitutional. So we see that; however, going back to the district court’s analysis, we believe that they got to the correct result.”

Reynolds also argued that the state statute used against Clift would fail the Bruen test, which requires the government to show the gun law fits the nation’s tradition of gun regulation.

He said the district attorney’s examples show a tradition of prohibiting use of firearms by people found by a court of law to be unfit to carry guns, not a tradition of prohibiting mere possession of firearms by otherwise law-abiding citizens while they’re intoxicated.

“The key difference is this involves court intervention and a finding and due process. I don’t believe there are field sobriety tests for operating a firearm,” Reynolds said.

“Because a statute is old does not mean it’s a historical tradition of firearm regulation in the way that we’re contemplating here,” Reynolds said. “Americans do have the right to armed self-defense.”