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Foster parents James and Julie Attaway challenge Missouri’s concealed carry rule

January 23, 2019

James Attaway has a concealed carry permit and can have firearms in his car when he’s driving around town. But under Missouri regulations, he’s required to have his guns locked away when his foster son is with him.

Mr. Attaway and his wife, Julie, filed a lawsuit last week saying those rules violate their Second Amendment rights to bear arms for self protection and questioning the need for stricter rules involving households with foster children.

The couple say they fear their ability to be foster parents would be denied if they complained to the state agency, or if they ignored the rules and were found in violation.

“There are other people who don’t foster at all because of this issue,” their attorney, David Sigale, told The Washington Times. “They say they don’t want to give up their ability to defend themselves, defend our family including the foster children.”

Missouri Department of Social Services regulations say foster parents are not allowed to possess a gun that is not locked away. Ammunition and firearms must be stored separately inside a home or vehicle.

One lawyer read the regulation as allowing a foster parent to carry a concealed firearm around his biological children but not a foster child. Another interpreted the policy as preventing a foster parent from carrying a concealed firearm around any child.

Alan M. Gottlieb, founder of the Second Amendment Foundation, which joined the Attaways in their challenge, said similar cases are being fought in Illinois and Michigan. He said other states may have the same kind of policies, though he didn’t have a full national tally.

The cases amount to tests of the Supreme Court’s ruling a decade ago that firearms ownership is a personal right belonging to individual Americans. The justices at the time said the right is not absolute and some restrictions are constitutional, and local officials and gun owners today are wrangling over those restrictions.

Josh Blackman, a professor at South Texas College of Law, said he doubts Missouri’s law will survive since it places an “unconstitutional condition” on the parents.

“To foster children, the parents must surrender a constitutional right,” he said.

David Kopel, research director for the libertarian think tank Independence Institute, also sees Missouri being forced to alter the policy.

“Everywhere in the United States, the law does not infringe a parent’s right to carry when children are present. This includes the parents’ biological children, the children’s friends who may be visiting. But the Missouri regulation creates an opposite rule for foster parents,” he said.

But Robert J. Spitzer, a political science professor at the State University of New York College at Cortland, said the Attaways have a few hurdles to overcome in their legal battle.

He said Supreme Court precedent suggests safe gun storage laws are legal and noted that the couple isn’t deprived of ownership of their weapons.

“There are very, very few restrictions when it comes to becoming a parent through childbirth, but there are numerous restrictions for those who elect to be foster (or adoptive) parents, because the state has an abiding interest in protecting the welfare of children,” he said.

“So is it a double standard? Yes, but it is supposed to be that way,” Mr. Spitzer added.

A representative from the Missouri Department of Social Services said the agency wouldn’t comment on pending litigation.

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