Opinion
U.S.A. –-(AmmoLand.com)-— On March 6, 2023, federal Judge Brian C. Wimes ruled the Missouri Second Amendment Protection Act was unconstitutional, claiming the Act violates the Supremacy clause of the US Constitution, invalidates federal law, and violates the doctrine of “intergovernmental immunity”.
On June 12, 2021, Governor Parson signed the Missouri Second Amendment Protection Act (SAPA). The act prohibits state and local officers from cooperating with Federal agents to enforce certain federal laws, mostly to do with firearms.
The Federal court system has long held states cannot be compelled to use their resources to enforce federal laws. States are not required to explain why they do not wish to use those resources to enforce federal laws. They have the power to refuse to do so. To hold otherwise is to collapse the power-sharing between states and the federal government into a monolithic entity controlled by the federal government. This doctrine is known as the anti-commandeering doctrine.
Judge Wimes appears to be nullifying the anti-commandeering doctrine by claiming Missouri must use state resources to investigate and prosecute federal law. Refusing to do so, Judge Wimes claims, is “obstructing” federal law enforcement, which is somehow a violation of the supremacy clause and intergovernmental immunity.
From the opinion:
SAPA is an unconstitutional “interposit[ion]” against federal law and is designed to be just that. Id. Section 1.410(5) states the Missouri General Assembly’s declaration that the Supremacy Clause “does not extend to various federal statutes, executive orders, administrative orders, court orders, rules, regulations, or other actions that collect data or restrict or prohibit the manufacture, ownership, or use of firearms, firearm accessories, or ammunition exclusively within the borders of Missouri . . . .” Mo. Rev. Stat. § 1.410(5). However, the Missouri General Assembly’s assertion that the Supremacy Clause does not extend to acts of Congress does not make it so. To the contrary, 15 “[t]he law of congress is paramount; it cannot be nullified by direct act of any state, nor the scope and effect of its provisions set at naught indirectly.” Anderson, 135 U.S. at 490.
SAPA does not prevent agents of the federal government from investigating, arresting, prosecuting or convicting residents of Missouri who violate federal law. It prevents agents of the state and local governments from assisting federal agents in doing so. Judge Wimes claims the anti-commandeering doctrine does not apply by quoting reasons in SAPA for the purpose of the law. But the purpose of state law has not generally been an issue in anti-commandeering doctrine. The Constitutionality of laws is based on what the law does, not what the law claims the purposes of the law are.
Judge Wimes claims there is a direct conflict between SAPA and federal firearms laws. From the opinion:
A federal law preempts a state law if the two are in direct conflict. Alliance Ins. Co. v. Wilson, 384 F.3d 547, 551 (8th Cir. 2004). A “direct conflict” occurs “[w]hen compliance with both federal and state regulations is a physical impossibility or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress . . . .” Id. If “Congress enacts a law that imposes restrictions or confers rights on private actors,” and “a state law confers rights or imposes restrictions that conflict with federal law,” then “the federal law takes precedence and the state law is preempted.” Murphy v. Nat’l Coll. Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018).
This correspondent has a difficult time following this argument. Where is the direct conflict?
Federal officers are free to enforce federal laws. The state does not have any duty to expend resources to enforce federal laws. The state may not make it illegal for federal officers to operate. The state has no duty to assist them.
Judge Wimes appears to be claiming the supremacy clause of the Constitution and the doctrine of intergovernmental immunity override the doctrine of non-commandeering.
Eric Burlison, who helped push through SAPA as a Missouri state senator, tweeted this:
We fully anticipated an Obama appointee to issue a judgement against HB 85 the Second Amendment Preservation Act. I am asking our new Attorney General to take this to the Supreme Court! States cannot be forced to be the enforcement of Federal Laws.
We fully anticipated an Obama appointee to issue a judgement against HB 85 the Second Amendment Preservation Act. I am asking our new Attorney General @AGAndrewBailey to take this to the Supreme Court! States cannot be forced to be the enforcement of Federal Laws. @Jered_Taylor
— Eric Burlison (@EricBurlison) March 7, 2023
In several discussions about SAPA, Second Amendment supporters claim the federal lawsuit is about the Second Amendment.
The arguments put forward by the State of Missouri rest on the non-commandeering doctrine, not on the Second Amendment. From the response to the lawsuit:
A. The United States has not suffered an injury in fact.The United States has failed to show that SAPA regulates or interferes with federal agencies enforcing federal law—because it does not. SAPA simply requires Missouri’s law enforcement to, as the complaint agrees is lawful, “lawfully decline to assist with federal enforcement[.]” Doc. 1, at 3 (citing Printz v. United States, 521 U.S. 898, 935 (1997)). The United States’ asserted injuries are based on misconstruing SAPA, speculating on risks that have not manifested, and insisting that SAPA favors other states over the federal government.
The response to the lawsuit shows SAPA is based on the power and sovereignty of states v the federal government:
The federal government misconstrues SAPA’s plain text. SAPA does not invalidate federal law as applied to third parties. The text of the invalidity provision states that certain federal acts “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.” Mo. Rev. Stat. § 1.430 (emphasis added). Despite the United States’ lengthy briefing, it has cited no contested provision of the National Firearms Act or the Gun Control Act that applies to states.
Opinion:
It is uncertain how a three-judge panel on the United States Court of Appeals for the Eighth Circuit will treat this case. The theory put forward by Judge Wimes appears novel to this correspondent. There is ample precedent for the non-commandeering doctrine. However, the Eighth Circuit rules, it is likely the case will be appealed to the Supreme Court. The arguments put forward by Judge Wimes could as easily be applied to marijuana law or immigration law.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.
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