Missouri Bill to Take on Federal Gun Control: Past, Present and Future Clears Senate Committee Hurdle

JEFFERSON CITY, Mo. (May 6, 2021) – After appearing to be stalled, a Missouri bill that would take on federal gun control; past, present and future quickly passed out of a second Senate committee today and can now move to the Senate floor.  Passage into law would represent a major step toward ending federal acts that infringe on the right to keep and bear arms within the state.

Rep. Jered Taylor filed House Bill 85 (HB85) on Dec 1. Titled the “Second Amendment Preservation Act,” (SAPA) the legislation would ban any entity or person, including any public officer or employee of the state and its political subdivisions, from enforcing any past, present or future federal “acts, laws, executive orders, administrative orders, court orders, rules, regulations, statutes, or ordinances” that infringe on the right to keep and bear arms.

HB85 passed the House in February by a 103-43 vote. On the Senate side, it passed the General Laws Committee on April 26 and was then referred to the governmental Accountability and Fiscal Oversight Committee. Sen. Lincoln Hough chairs that committee, and he was reportedly the senator most responsible for stalling SAPA in 2020. There was concern that he would roadblock the bill with time running out in the session. But with a strong response to action alerts by Missouri First and the TAC, HB85 was brought before the committee and passed on Thursday.

The full Senate held a hearing on a Senate companion bill (SB39) last week. But with less than two weeks left in the legislative session, the best chance to get SAPA to the governor is for the Senate to pass the House version.

DETAILS OF THE LEGISLATION

The bill includes a detailed definition of actions that qualify as “infringement,” including but not limited to:

• taxes and fees on firearms, firearm accessories, or ammunition not common to all other goods and services that would have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
• registration and tracking schemes applied to firearms, firearm accessories, or ammunition that would have a chilling effect;
• any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens;
• any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

The proposed law defines “law-abiding citizen” as “a person who is not otherwise precluded under state law from possessing a firearm.”

Under the proposed law, infringement on the right to keep and bear arms would include the National Firearms Act of 1934, the Gun Control Act of 1968. Pres. Trump’s bump-stock ban, proposed federal “red-flag laws,” and any future gun control schemes implemented by the federal government.

The legislation includes a provision that would allow anybody who violates the law and knowingly deprives somebody of their right to keep and bear arms as defined by the law to be sued for damages in civil court.

“Sovereign, official, or qualified immunity shall not be an affirmative defense in such actions.”

An amendment to the bill would subject law enforcement agencies and political subdivisions in Missouri to a civil penalty of not less than $50,000 for enforcing or attempting to enforce any of the infringements outlined by the law or for giving material aid and support to such enforcement efforts.

An amendment removed provisions that would have made federal agents who violate the law permanently ineligible to serve as a law enforcement officer or to supervise law enforcement officers for the state or any political subdivision of the state.

EFFECTIVE

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.

Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.

“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”

LEGAL BASIS

The state of Missouri can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.

Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.

“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”

No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.

WHAT’S NEXT

HB85 will now move to the Senate floor for further consideration.

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