Missouri lawmakers stand poised to criminalize the enforcement of federal gun laws.
If they do, the battle will shift from the statehouse to the courthouse, where opponents have vowed immediate legal action to ensure the law never goes into effect.
The state’s Republican-led legislature — with the help of a handful of Democrats — is widely expected to override Gov. Jay Nixon’s veto of legislation that aims to nullify past, present or future federal gun laws.
Opponents of the bill either dismiss it as a meaningless political stunt or decry it as a threat to public safety. Either way, they’re hopeful lawmakers will decide to let the governor’s veto stand.
“This legislation is so wildly unconstitutional,” said Jackson County Prosecutor Jean Peters Baker, a former Democratic state representative. “It’s foolishly unconstitutional.”
But Republican supporters of the legislation insist it merely exercises Missouri’s right to limit the limits on guns.
“This bill was born out of a frustration with the federal government,” said House Speaker Tim Jones, a Eureka Republican. “Let’s not forget that the states were the original creators of the federal government. Not the other way around. The federal government needs to stop inserting itself into the gun debate.”
Dubbed the “Second Amendment Preservation Act
,” the bill relies on “nullification,” the notion that a state can unilaterally void federal laws it disagrees with. The concept has been widely dismissed by constitutional scholars, with the U.S. Supreme Court rejecting nullification in 1958 after Southern states tried to use it to avoid desegregating public schools.
Missouri’s proposed law is perhaps the most far-reaching in the nation, but it’s not unique. A recent Associated Press analysis found that about four-fifths of the states have enacted laws that directly reject or ignore federal laws. But few go so far as to threaten criminal charges against federal authorities.
Kansas enacted a law this year that declares that federal firearms regulations don’t apply to guns made and kept in that state. U.S. Attorney General Eric Holder responded with a letter to Gov. Sam Brownback promising a court fight between Washington and Topeka.
A similar law passed in Montana was struck down last month by the 9th U.S. Circuit Court of Appeals.
Even some supporters of the Missouri nullification bill don’t think it passes the constitutional muster.
Rep. Dennis Fowler, a Republican from Advance,told the Dexter Daily Statesman
that he will vote to override the veto in order to send a message to the federal government. But he thinks it will ultimately be thrown out by the courts.
Several Democrats from rural Missouri districts have also said they’re considering supporting an override in order to avoid being perceived as anti-gun. Since the courts will eventually throw the law out anyway, the thinking goes, there’s no reason to cast a vote that could hurt chances for re-election.
“I personally believe that any higher court will probably rule this particular gun law unconstitutional,” Rep. Ed Schieffer, a Troy Democrat, recently told The Associated Press. “But I may end up still voting for the gun bill, because I don’t want to be on record for not supporting guns.”
Richard Callahan, the U.S. attorney for the Eastern District of Missouri, said the problem with supporting the bill in the hopes that it will later be struck down by the courts is that there is no guarantee the entire law will be deemed unconstitutional.
“The aspects of the law that purport to challenge federal supremacy will be struck down,” Callahan said. “But there are pieces of the law that would prohibit state and local officers from working with the federal government to investigate gun crimes. Those pieces wouldn’t violate the supremacy clause, but they would hurt our ability to combat those types of crimes.”
Callahan pointed to a recent joint operation between federal, state and local law enforcement officials in the St. Louis area that led to more than 200 arrests and the seizure of 267 guns and also marijuana, cocaine, heroin and meth.
“This legislation,” he said, “would have made criminals out of those law enforcement agents.”
Astudy of federal weapons offenses by Syracuse University
found that authorities in the Western District of Missouri led the nation in prosecution of federal weapons crimes through the first half of 2013. Kansas was a close second.
“We rely heavily on our federal partners to go after violent criminals,” Baker said. “This legislature wants to make that more difficult, or even illegal.”
The sponsor of the bill — Rep. Doug Funderburk, a St. Peters Republican — dismissed those claims as “opponents trying to craft the ugliest possible outcomes to sway a few votes their way.”
“Nothing in this bill would invalidate reasonable regulations or cooperation between federal and state authorities to enforce those reasonable regulations,” he said. “But it will criminalize the enforcement of laws that Missouri deems unreasonable and a violation of the Second Amendment.”
The legislation is clear in stating that all federal laws — whether past, present or future — that “infringe on the people’s right to keep and bear arms” shall be invalid. The bill specifically mentions several federal statutes, including a 1934 law that imposed a tax on transferring machine guns or silencers.
But the first lawsuit filed challenging the legislation’s constitutionality might not have anything to do with nullification. It may instead focus on another provision in the bill that would make it a misdemeanor to publish the names of gun owners.
Critics say this infringes on the First Amendment rights of free speech and press.
“Our board of directors has already voted to take this issue to court,” said Doug Crews, executive director of the Missouri Press Association.
The votes are there to override, Funderburk said, and he fully expects the General Assembly will take the matter up when lawmakers return to the Capitol on Sept. 11.
“For every critical email I get about this bill,” he said. “I’m getting 100 in support.”