concurring.
I concur in the principal opinion. I write separately to point out that the Second Amendment to the United States Constitution applies to the states and confers an individual right to keep and bear arms, even though the United States Supreme Court has yet to make that declaration. The fact that the United States Supreme Court has not declared what I believe the law is in this country simply indicates that the United States Supreme Court has not dealt with the issue since the incorporation doctrine became well-settled law.1
It is not uncommon for state supreme courts and federal appellate courts to be presented with issues that develop the landscape of constitutional law, including questions of Fourteenth Amendment incorporation. See State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. banc 2003) (holding it unconstitutional under the Eighth Amendment to execute individuals who were under 18 years of age at the time of their capital crime); Nordyke v. King, 563 F.3d 439 (9th Cir.2009) (incorporating the Second Amendment to the states, but holding local governments may exclude weapons from public buildings and banks); United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844 (2nd Cir.1965) (incorporating Fifth Amendment Double Jeopardy Clause to the states); United States ex rel. Bennett v. Rundle, 419 F.2d 599 (3rd Cir.1969) (en banc) (incorporating Sixth Amendment right to public trial to the states).
The textual elements and historical background of the Second Amendment that are dealt with extensively in District of Columbia v. Heller, — U.S. —, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), confirm that the individual right to possess and carry weapons for self-defense is a codified right that preexisted the United States Constitution, the same as certain rights protected by the First and Fourth Amendments. The very text of the Second Amendment implicitly recognizes the *534preexistence of the right and declares only that it “shall not be infringed.” Heller, 128 S.Ct. at 2797.
The United States Supreme Court in Heller expressly held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes such as self-defense within the home. Id. at 2786. The significance of the determination that the Second Amendment applies to the states and local governments — not just the federal government — is of great importance. Incorporation of the Second Amendment right to bear arms under the Due Process Clause of the Fourteenth Amendment ensures that this fundamental right, as recognized in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875), and Heller has the same protections as the other fundamental rights such as free speech and free exercise of religion protected by the First Amendment, the prohibition on unreasonable searches and seizures protected by the Fourth Amendment, and the effective assistance of counsel in the Sixth Amendment.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for any purpose whatsoever. Heller, 128 S.Ct. at 2786. The United States Supreme Court has noted reasonable limitations on the possession of firearms by felons and the mentally ill and laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings. Id. The Missouri legislature’s decision to criminalize possession of a firearm while intoxicated and the State’s action pursuant to § 571.080.1(5) in prosecuting the defendant, who by all accounts was not using the firearm for purposes of self-defense, were reasonable and do not violate the Second Amendment.
In conclusion, I concur with the principal opinion’s determination that § 571.030, RSMo Supp.2008, which prohibits possession or discharge of a firearm while intoxicated unless a person is defending himself or others, is not facially unconstitutional nor does it violate Mo. Const, article I, section 23.2 See also § 571.030.5.
. In concluding that no Supreme Court precedent foreclosed the adoption of the original understanding of the Second Amendment right to bear arms, the United States Supreme Court in Heller also concluded:
It should be unsurprising that such a significant matter has been for so long judicially unresolved. For most of our history, the Bill of Rights was not thought to be applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens. Other provisions of the Bill of Rights have similarly remained unilluminated for lengthy periods.
(i.e. First Amendment right to free speech 150 years after ratification of the Bill of Rights). District of Columbia v. Heller, — U.S. —, —, 128 S.Ct. 2783, 2816, 171 L.Ed.2d 637 (2008). "For most of our history, the question [regarding whether the Second Amendment recognized the right to possess a firearm unconnected with service in a militia] did not present itself.” Id. at 2816.
. Article I, section 23, of the Missouri Constitution provides as follows:
That the right of every citizen to keep and bear arms in defense of his home, person
and property, or when lawfully summoned in aid of the civil power, shall not be questioned; but this shall not justify the wearing of concealed weapons.