Some states have legalized weed. Not the feds. Some states call themselves sanctuaries for immigrants, despite the feds controlling immigration and deportation. And some states have laws about allowing the possession of guns, even as the feds want to limit and control it. Each of these scenarios has produced widely different reactions, some based on law but most based on preference.
Missouri Governor Mike Parsons signed a bill that takes control of gun rights in his state.
Gov. Mike Parson signed House Bill 85 at Frontier Justice in Lee’s Summit.
The new law allows state gun laws to surpass federal gun laws and holds police departments liable if an officer violates someone’s second amendment rights.
“It is our time to protect the second amendment,” Gov. Mike Parson said. “This is exactly what this bill does and it’s time to get this thing signed and get it into law.”
If someone’s second amendment right is violated, local law enforcement could pay $50,000.
This law was presumptively enacted in anticipation of federal law that would make certain guns illegal and preclude certain classes of people from possessing guns. What HB 85 does is prohibit police within the state from enforcing federal law. The Department of Justice is not amused.
In a letter sent Wednesday night and obtained by The Associated Press, Justice officials said the U.S. Constitution’s Supremacy Clause outweighs the measure that Gov. Mike Parson signed into law Saturday. The new rules penalize local police departments if their officers enforce federal gun laws.
Acting Assistant Attorney General Brian Boynton said the law threatens to disrupt the working relationship between federal and local authorities, they said in the letter, noting that Missouri receives federal grants and technical assistance.
“The public safety of the people of the United States and citizens of Missouri is paramount,” Boynton wrote in the letter.
Is federal law supreme? While marijuana remains a Schedule I drug, the feds have taken the position, for the most part, that they will lay off enforcement in deference to states’ choice to legalize it. In contrast, immigration is a purely federal function in which states have no authority, yet states and cities proclaimed themselves “sanctuaries” where they would no longer cooperate by turning over information or corpus to ICE. Courts have held the feds can’t force states to cooperate in their enforcement efforts, rejecting the withholding of funds to states and cities that won’t play ball.
Are guns any different?
The authority of Congress to legislate gun control stems from the Interstate Commerce Clause, as guns travel across state lines and find their way into Missouri. But once in the Show Me State, who gets to say who may possess them, what they may possess and what conditions can be imposed, or not imposed, on Missouri residents?
The Justice Department argued in the letter that the state lacks the authority to shield any Missouri businesses or citizens from federal law or to prevent federal law enforcement officials from carrying out their duties.
Boynton said the bill “conflicts with federal firearms laws and regulation” and federal law would supersede the state’s new statute. He said federal agents and the U.S. attorney’s offices in the state would continue to enforce all federal firearms laws and regulations. He asked that Parson and Eric Schmitt, the state’s attorney general, clarify the law and how it would work in a response by Friday.
Granted, Missouri law provides neither constraint on federal agents nor defense to federal prosecutions, same as in marijuana cases. Also granted is that the feds can no more compel local police to enforce its law than they could immigration laws. As states and the federal government diverge in their laws, values and interest in cooperation, arguments as presented by AAG Boynton suffer from past precedent and the decisions rendered when states asserting their internal authority to control how their police will deal with disagreeable federal mandates.
If states can refuse to be part of federal immigration enforcement, why not federal gun enforcement, for which federal supremacy is hardly as clear and strong? If the feds can acquiesce to states’ legalization of pot while maintaining it on Schedule I, what legitimacy can be asserted for refusing to acquiesce to states’ support for a fundamental constitutional right?
The law has long been clear that while states can’t limit the rights afforded by the United States Constitution, which provides a floor below which states may not go, they can be more protective of those rights than the federal government. If Missouri chooses to value the Second Amendment rights of its citizens more dearly than the current administration, there appears to be no basis upon which the feds can force the state to do its enforcement bidding, regardless of whether you love or hate the policy. Will that make the Missouri the Shoot Out State? Maybe, but that’s a choice for Missouri to make.
Then again, what Missouri is doing here isn’t just empowering its police to ignore federal law, but prohibiting cooperation with a price tag of $50,000. That may be a step too far should state police choose to comply with federal mandates. Much like the Sanctuary City arguments, the feds can’t force prisons to round up their deportees for them, but the cities can’t prohibit jails and prisons from doing so either.
As the law enforcement schism between states and the federal government widens, and their respective policies are in direct conflict, federalism is tested in ways that few would have imagined just a few years ago. The arguments for and against tend to flip with astounding alacrity (and just a wee bit of hypocrisy) based on which party is in power, but the law that applies to one applies to the other as well. If you loved Sanctuary Cities, do you not love Missouri’s gun laws too?
Silly wabbit…don’t you know precedent is only meant to be used on your side’s favored causes?
Hypocrisy is a valued trait now days, and integrity has mostly gone the way of the Dodo.
Sanctuary cities involve not co-operating with federal officials, a power first established in the context of federally required background checks for guns in Printz v US (1997). If Missouri was just not reporting to or voluntarily cooperating with the feds, it would be perfectly legal even if I didn’t like the policy. The Missouri law, however, goes way behind the anti-commandeering principles of Printz and tries to re-establish the principle of nullification. It explicitly claims the rights for states to determine the constitutionality of federal acts. (1410(5) “each party has an equal right to judge for itself as to whether infractions of the compact have occurred, as well as to determine the mode and measure of redress.”). It purports to declare federal law invalid and not to be recognized. (“1.430. All federal acts, laws, executive orders, administrative orders, rules, and regulations … that infringe on the people’s right to keep and bear arms shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.”) Finally, it imposes an ill-defined duty in Missouri courts and police to protect Missouri rights from federal infringement. (1.440)
I could never have guessed that you would take this position about the assertion of state’s autonomy in support of a constitutional right. I’m shocked.
Hold my beer.
Sec. 2.052. NOT SUBJECT TO FEDERAL REGULATION. (a)
A firearm suppressor that is manufactured in this state and remains
in this state is not subject to federal law or federal regulation,
including registration, under the authority of the United States
Congress to regulate interstate commerce.
Sec. 2.053. MARKETING OF FIREARM SUPPRESSOR.
A firearm suppressor manufactured and sold in this state must have the words
“Made in Texas” clearly stamped on it.
If it wasn’t for hypocrisy we would be incapable of governing ourselves.
This Act, and the others in other states, applies to “people” and not just people of the government type, so gun dealers, stores and pawn shops get potential liability for following federal rules. It’s a jumble of junk.
I can’t find the text of the letter sent by Justice, but if it only mentions the Supremacy Clause, it misses. If I were being paid to write such a response, it would include:
Dear Missouri (and any other ungrateful arms of the federal government):
Through the Commerce Clause, “Dormant Commerce Clause” and other clause-like stuff, federalism has been rolling along unimpeded since 1865. Your reliance on the 10th Amendment* doesn’t work, unless you conversed with it by séance. Since guns affect everything from apples to zoo animals, we are reviewing your allowance of Federal Green.
I hope we’re still pals,
Skink
*I’d like to say I miss the 10th, but I’ve never known her.
At some point as the feds continue to push their authority deeper into state territory, there may well be significant pushback like this against federal micromanagement of intrastate law enforcement. When both were on the same page, it didn’t really matter, but when they diverge, it could get interesting, as we saw with other issues that arose during Trump where states did whatever they had to do to impair federal dictates.
I’m all for it and I’ve done some of that pushing-back. Nothing would be better for the nation than to reduce 50% of federalism, on the 1st day. But to do that, pick an issue with broad support, so folks don’t get up in the good v. bad of non-issues an go down a thinking hole. Gun control is and and never will be that issue.
And if it’s to be started by state statutes, write them so there’s less opposition to what the statute does. The 7-page response includes erroneous stuff, just because it was filler. That filler becomes the target of the opposition and the substance of the writing, the real reason to oppose, gets ignored. Likewise, this Act does too much by including other crap not aimed at the feds, like making the guy at Bass Pro liable for following federal laws.
People go down rabbit holes by themselves and for many crazy reasons. But if the states want to find a consensus on federalism and actually do something, they can’t be the rabbit.
The 7 page letter is available online as a pdf at The Missouri Times.
Now that the letter is available, might as well include a link.
Meh–7 pages of throat clearin’ phrases, gobbledygookery, pontificery and a two-day response demand. I like mine better.
Do you still do your lawyer letters in crayon?
You know well that I only use crayon in responding to the dumb letters.
Granted, Missouri’s effort here is ham-handed, but don’t be so sure that there won’t be more serious efforts to restore some vitality to the 10th, even if it’s been dormant for our entire history. The more feds expand their reach and power, the more likely it becomes that states are going to assert their autonomy and say “enough.”
I think what Scott was trying to say here is that it’s not a right or left issue, but both sides are beginning to bristle at fed overreach and refuse to play by federal rules. There is a lot of pressure over the past few years, and if laws like HR 1 are enacted, telling states how to run their elections, this problem could become a huge issue. And if the Dems lose the WH and Congress, everybody will flip sides (again) and make states’ rights a battleground. Don’t dismiss it so easily.
This has been to SCOTUS twice in the last decade – Montana and Kansas both passed similar 2A sanctuary laws – and it’s lost both times. In the Kansas case, a fine young veteran Jeremy Kettler got railroaded by the ATF.
It’s really just a lazy attempt by politicians to show they “did something” that won’t stop the ATF from putting you in Club Fed.
State laws can never bind the feds (like ATF), but can they bind their own state police from applying federal law? This is an entirely different question.
Well we know the argument about whether States could nullify Federal laws was resolved in favor of the Federal government in 1865. I can’t recall how.
Don’t make me have to call the analogy police on you. Seceding from the Union is a federal matter, regardless of the reason for secession.
Secession and nullification are two separate issues. And it’s telling that people who want to trash nullification never mention its first use case, which was against Alien and Sedition Act, which outlawed criticizing federal elected officials. Both Jefferson and Madison support nullifying the law. But hey, what do those idiots know about the Constitution?
And for those of you who think secession is unconstitutional, do you really think the Constitution would have been ratified if the States thought that ratification would mean they could never leave the union under any circumstance? Especially after they had just fought to secede from Britain?
This wasn’t a post about secession, and just because someone mistakenly mentioned it does not mean you get to dive down the rabbit hole. Any further comments about secession get unceremoniously trashed.