Merrick Garland
Attorney General Merrick Garland (AP Photo/Carolyn Kaster, Pool)
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The controversy over Missouri’s Second Amendment Preservation Act (SAPA) has now gone national, with the Department of Justice suing the state in federal court to block enforcement of the law. A separate challenge brought by the City of St. Louis and two counties was recently argued before the Missouri Supreme Court.

At issue in both cases is whether the Missouri SAPA conflicts with or attempts to nullify federal law, as both the state and federal lawsuits claim, or whether it’s a valid exercise of Missouri’s state legislative powers to deny any federal attempt to commandeer state-manpower, as Missouri argues.

SAPA was signed into law last June as an effort to counter the tide of gun control proposals coming from the then-new Biden Administration. A press release form Missouri’s Governor Mike Parson stated . . .

HB 85 prohibits state and local cooperation with federal officials that attempt to enforce any laws, rules, orders, or actions that violate the Second Amendment rights of Missourians. These protections against federal overreach are triggered if federal officials attempt to violate the state or federal constitution.

Additionally, the bill is an acknowledgment that the right to keep and bear arms is fundamental and inalienable, and that the nation’s federalist constitutional structure limits the federal government’s authority over states.

Under HB 85, any person or entity who knowingly deprives Missouri citizens of their right to bear arms – as protected by state and federal constitutions – will be liable for redress and monetary damages of $50,000 per occurrence. Local law enforcement’s ability to assist federal officials in other instances remains unchanged under this legislation.

“HB 85 puts those in Washington D.C. on notice that here in Missouri we support responsible, law-abiding gun owners, and that we oppose government overreach and any unlawful efforts to limit our access to firearms,” Governor Parson said.

Missouri maintains that the relevant portions of the SAPA do not violate federal law. Rather, Missouri says the Act uses the state’s power to set boundaries on the activity of its own officials.

The outcome of these cases, and the fate of the SAPA, could depend on a crucial distinction: the difference between nullification and anti-commandeering.

Missouri Gov. Mike Parson (Julie Smith/The Jefferson City News-Tribune via AP, File)

Nullification is when a state declares certain federal laws to be void and prevents their enforcement by federal officials within the state. In contrast, anti-commandeering is when a state refuses to be drafted into a federal law enforcement role, but doesn’t prevent federal officials from carrying out that role themselves.

Courts treat nullification and anti-commandeering extremely differently. Anti-commandeering has been upheld as a necessary feature of the Constitution, while nullification has been consistently rejected by courts across the nation—including the U.S. Supreme Court.

If the courts hold that some portions of the Missouri SAPA nullify federal law, those parts of the SAPA likely won’t survive. But if judges determine that some parts of the SAPA are only anti-commandeering provisions, they’re likely to be upheld based on Supreme Court precedent.

Nullification

Some provisions of Missouri’s SAPA seem to fall more in the category of nullification rather than anti-commandeering. It seems likely that a federal court will take issues with these portions.

Section 1.420 of the SAPA lists various “federal acts, laws, executive orders, administrative orders, rules, and regulations” which “shall be considered infringements on the people’s right to keep and bear arms” within Missouri. The Act then states that such laws “shall be invalid to this state, shall not be recognized by this state,” and “shall be specifically rejected by this state.”

While the mere pronouncement might not be enough to qualify as nullification, Section 1.440 of the SAPA goes on to say that Missouri courts and law enforcement have a duty to protect the people’s gun rights “from the infringements defined under section 1.420.” That is, from certain “federal acts, laws, executive orders, administrative orders, rules, and regulations.”

In these sections, Missouri seems to be saying its own officials have a duty to prevent anyone, including federal officials, from enforcing certain federal laws in Missouri. If courts read the law that way, they’re virtually certain to strike it down as a form of nullification.

This negative treatment isn’t a modern judicial novelty. Nullification has always been a controversial idea in American history, finding only marginal support among the Founders, and with the Supreme Court rejecting the idea as early as 1809. It’s not surprising that courts are unwilling to revisit the issue today.

Even if courts reject some portions of the Missouri SAPA, however, other parts could still be upheld if they’re understood purely as anti-commandeering provisions.

Missouri Capitol
Shutterstock

Anti-Commandeering

Portions of the SAPA declare that Missouri and its officials won’t cooperate with the federal government to enforce certain federal gun laws Missouri deems contrary to the people’s Second Amendment protected rights. Even political commentators sometimes fail to grasp that this is not nullification.

Rather, it’s anti-commandeering, whereby the federal government cannot force state officials to act on behalf of the federal government as part their law enforcement arm. Missouri is on solid constitutional ground here in asserting its power to decline cooperation with federal law enforcement.

In Section 1.450, the Missouri SAPA states that no “public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms.”

In a brief to the state supreme court, Missouri says this section, and the related provisions that follow, “merely prohibit state personnel and resources from being used to enforce the federal laws and rules identified and disapproved.”

The U.S. Supreme Court upheld the power of states to refuse to cooperate in the enforcement of federal law in the 1997 Printz v. United States case. In our system of dual sovereignty, states can’t be forcibly drafted (or “commandeered”) into a federal law enforcement role.

This is true as a matter of constitutional principle, whether the issue is immigration (as with “sanctuary cities”), drug laws (as with marijuana in many states), or gun laws.

If a court interprets portions of the Missouri SAPA as simply anti-commandeering provisions, they’re likely to survive even if those deemed to be nullification don’t.

In reviewing the SAPA, courts will have to make this critical distinction: between mere non-cooperation with federal law enforcement (anti-commandeering), and efforts to block federal enforcement of federal law (nullification). It’s important for the nation’s gun owners, and the People at large, to understand this distinction as well.

 

Cody J. Wisniewski (@TheWizardofLawz) is the director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

To learn more about the Center to Keep and Bear Arms’ work and support their fight for your natural right to self-defense—from both man and tyranny—visit www.mslegal.org/2A and donate today!

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54 COMMENTS

  1. “Nullification has always been a controversial idea in American history, finding only marginal support among the Founders”

    Kentucky and Virginia might Resolve to disagree with you.

    At some point we are going to have to say fuck the courts and their bullshit decisions.

    Does Missouri have medical or recreational marijuana? If so, any decision here could affect that as well.

    • Add “gay” marriage to that list. Or anything the Left wants to force onto religious people. Be careful what you ask for.
      Because the precedent was set when states began to Defy the federal laws against marijuana possession, sale, transport, and consumption.

      The term “states rights” may soon have a new meaning in the 21st century.

      • I’ve been married to the same woman for 50 years. Letting gays marry doesn’t change that so it has no effect on me and my wife. If gay marriage meant men and women could no longer marry, you would have a point. But it doesn’t so you don’t. Let’s not make enemies of people who do us no harm. We already have too many enemies who mean us real harm.

        • Your desire to live and let live is admirable, but mistaken. The left is completely opposed to everything in the Constitution and the Bill of Rights, hence the new talking point that “no right is absolute”, open calls from prominent leftists for the abolition of the Senate and the electoral college, etc. LTBTQPedo (sorry, MINOR ATTRACTED PERSONS) are a core constituency of the left. A tiny percentage of that group may have guns, but they will happily trade gun rights for ideological supremacy and a Government school system that grooms children into their lifestyle.

          We have no common cause with the left, stop trying to pretend we do. The days of “agree to disagree” and “live and let live” are long past. Wake up.

        • I never understood why people that supported same-sex marriage did not support plural marriage. A man who wants to have more than one wife is not harming my marriage.

          Also the people who supported same-sex marriage also supported the government undermining heterosexual marriage. They are big supporters of the welfare industrial complex. Paying a woman to not get married. Even though she has five children from five different men.

          The same sex marriage crowd does like having the government in other people’s bedroom.

        • I would like to agree with you, Kendahl, but unfortunately, the left can’t let well enough alone. You not only have to not do anything to upset their agenda, but they want you to actively accept their agenda. For instance, the baker who has religious objections to providing services for “gay” marriage forced to bake a “wedding cake” for a “gay” couple. He wasn’t doing anything to interfere with their false act. He wasn’t picketing the building where they were going through their false act. His attitude was the same as yours, “Just leave me alone.” You may be lucky that the left doesn’t impact your life. I had a printing company and I refused to print flyers for a man who was organizing sex trips to the Philippines and Thailand. I was able to do that because the left hadn’t yet seized power in Kallyfornicadiya. Today I suppose i would have to print those flyers even though I personally objected to the whole premise.

      • As far as the states and the courts are concerned, marriage is a civil union, not a religious one, although the parties to a marriage may treat it as such should they chose to do so. All consequences of marriage, its dissolution by death or decree, the rights of heirs, parentage, and so forth, are decided as civil matters, not religious ones. Although a priest, rabbi, imam etc can marry you (as long as that individual is licensed by the state), that same religious cannot grant a divorce or dissolution or determine the rights of heirs, or rights in property acquired during the marriage. Tose are issues that can only be addressed by a court. Consequently, the “right” to a gay marriage is simply a recognition that everyone is entitle to equal treatment by governmental/civil authorities, and thus marriage certificates and the rights and obligations of marriage may not be refused or eliminated by those authorities.
        If your religious beliefs object, don’t marry someone of the same sex. And just consider a gay marriage as a contract by two persons to have the consequences of their relationship be controlled by law and not by a church. In other words, conceptually it is quite similar to a business partnership in which the sexual orientation of the parties is immaterial to the conduct of the partnership and the ownership of its assets and liabilities.

        • If the gay marriage crowd would just stay out of everyone’s bedroom, I wouldn’t have any problem with gay marriage. But they like supporting the welfare industrial complex. They like the government enabling ($$$) a woman to have five kids from 5 different men. And not get married to either one of them. And the taxpayer picks up the bill for raising these kids.

          And then the children are raised without the love and discipline of a father. Many of them become criminals in our society. Where eventually some of us are going to have to put a bullet in their head. When they rob somebody.

          And why does a gay man, Tom Ammiano, who has no children, work to get elected to the school board in San Francisco. With the specific purpose of ending the Second Amendment education and ending the rifle teams in the public schools are there???

        • “marriage is a civil union, not a religious one”

          Marriage was always a religious issue. Just as Medical Care was always a religious issue. Until the atheists decided to intervene. And get the government involved in marriage. And everything else.

          Getting the government out of marriage means that the government stops marrying people. And that is not what the gay marriage crowd wants. Because in a free Society a house of worship can refuse to marry anyone.

          But let’s bring this back to the 2nd Amendment. The gay marriage crowd wants to teach all manner of things to children in the public school system. Except their second amendment civil rights.

        • Chris, I am fine with getting the .gov out of the marriage business. However there are lots of things government is involved with having to do with married people and children, not the least of which is the income tax and the 16th Amendment (I am just fine with getting rid of both of those too).

        • “Marriage was always a religious issue. Just as Medical Care was always a religious issue”

          Which came first, marriage or religion?

          Which came first, medical care or religion?

          It’s amazing how oblivious you are, religion came much later and just tries to hijack the institutions that society has already developed. A good example would be the Catholic Church hijacking the saturnalia festival of Rome.

          Obviously, the one true religion is the worship of the Roman god Saturn, we still celebrate Saturday in his honor.

          Well, and the Norse goddess Freya, who hasn’t said thank God it’s Freya-day!

          Do I need to point out that we don’t have a Jesus-day or a Jehovah-day or an Allah-day?

          But we celebrate 52 Saturn-days every year, hallelujah!

          Bring on the vestal virgins, direct from the temple of Venus!

      • I don’t like how the Supreme Court resolved the issue. States and localities should be able to define their requirements for marriage, such as minimum age, gender, number of participants, etc. However, whatever marriage is made should be recognized everywhere, regardless of whether it would be granted in that locality. The same should apply to concealed carry licenses, driver’s licenses, professional licenses, etc. They may not be granted everywhere, but they should be recognized everywhere once issued.

        • Actually, the Supremes in DC have ruled that a marriage valid in one state is valid in all states in Loving vs. Virginia. Prior to that ruling, a marriage in another state between a white and a negro was invalid in Virginia even though valid in, say, Pennsylvania where the couple had married. Mr. and Mrs Loving were married in some state other than Virginia and moved back to Virginia where they were arrested for “cohabiting” even though they were legally married in some jurisdiction other than Virginia. As late as the 1950s there were, I think, 13 states where “miscegenation” was forbidden. It was interesting how they were divided up. All of the states with such laws forbad marriage between whites and indians. In the south, marriage between whites and blacks was verboten. In the west, marriage between whites and asians was verboten but marriage between whites and blacks for the most part was not. The laws were being eliminated by state supremes until Loving v Virginia theoretically killed all such laws.

      • “Add “gay” marriage to that list. Or anything the Left wants to force onto religious people.”

        So the government is forcing you to have a gay marriage?

        Or is it just that you want to control others peoples lives by telling them who they can love?

        What happened to all that “less government intrusion into a private lives!”? Explain to me what legitimate interest you could have in other peoples marital plans.

        • For once, MinorIQ, I almost agree with you . . . the idiot gummint SHOULD stay the eff out of marriage altogether. Which is what libertarians believe. I understand that you idiot Leftist/fascists can’t tolerate others having actual personal liberty – we might be so bold as to do something you don’t approve of. Sod off, swampy.

      • “The nullifiers lost their asses.”

        Afraid that is historically incorrect. The Confederate States didn’t attempt to nullify any law. Abolishing slavery in the entire union required a constitutional amendment (or the 13th Amendment would be entirely unnecessary).

        The secessionist states also held that the union was entirely voluntary, and no law prevented a then State from withdrawing from the union.

        Since the constitution directed the process for creating/admitting then States (now: states), but nowhere addressed withdrawing from the union.

        Given that the then States did not delegate to the central committee the authority to determine whether a then State could withdraw from the constitution, the matter, via 9th and 10th amendments, remained in the hands of the individual then States to determine for themselves.

        Civil War 2.0 settled the question of withdrawal by force of arms. And abolishment of slavery via the 13th Amendment.

      • “We decided this question with a civil war. The nullifiers lost their asses.”

        I’ve always found “might makes right” to be an interesting legal argument to defend.

        • “I’ve always found “might makes right” to be an interesting legal argument to defend.”

          If one is the “might”, no defense is necessary.

    • “At some point we are going to have to say fuck the courts and their bullshit decisions“

      Darn that pesky constitution, let’s just do what we want by taking the peoples right to ‘petition the government for a redress of grievances’.

      How very ‘patriotic’ of you.

      • I’m sure you thought you had a point in that irrational word salad, MinorIQ. Now explain what STATE legislation, adopted by the ELECTED representatives of a state, designed to limit/prevent the infringement of FEDERAL legislation on the rights of that state’s citizens (and largely modeled after California’s “sanctuary state” laws on immigration, which Leftist/fascist twits like you championed) has to do with the “right of the people” to “petition government for redress of grievances”. Go ahead, we’ll wait while you remove your head from your fourth point of contact and try to justify that piece of idiocy.

  2. Federal courts are not “Missouri” courts; and therefore the federal court should read the statute narrowly and reject the attack as it does not command federal officials to do anything.

  3. What Missouri is saying whether they realize it or not…Missouri don’t need any stinking Jim Crow Gun Control joe to run their show.

  4. How many lawsuits were filed against “sanctuary” cities and states? I love how progressives uphold the law so very selectively.

  5. Neither.

    It’s so simple

    The 2nd Amendment is federal law. Enacting state laws to enforce it are enhancements, not in opposition to federal law.

    Any “law” contrary to the supremacy clause in conjunction with the 2nd and 14th amendment are null and void.

    Trying to enforce them are criminals acts, maybe even treasonous.

    It needs to be very expensive for authoritarians to attempt violate states attempts to enforce the Constitution.

    Mereck Garland IS the criminal here and in violation.

    • Garland still has his panties in a twist over Gorsuch getting “his” seat on SCOTUS. Everything he does reminds me of how glad I am that McConnell refused to schedule hearings or a vote for that clown! On top of that, since he left the DC Court of Appeals to take the AG slot his chance to get another federal judge position is off the table. That pisses him off as well, all in all Garland is not a happy person, and it shows!

  6. The federal courts’ rejection of nullification shows not that they have solid understanding of the Constitution, but that whether conservative or progressive they are wholly committed to preserving and upholding federal power.
    Jefferson considered nullification the “rightful remedy” for federal overreach. It is perfectly in line with an originalist interpretation of the Constitution, not the bastardized distortion federal judges have made.
    The distinction between anti-commandeering and nullification is irrelevant and shows what a complete joke the federal court system is. If the courts “strike it down,” Missouri should ignore them and enforce it anyway

  7. If blue states and localities can ignore Federal Immigration law and restrain their law enforcement from cooperation with ICE, the Red states are fully justified in restraining their law enforcement from enforcing/cooperating with ATF; etc.

    • Amen!
      Some states, I’m lookin’ at you New York and California, ignore not only federal laws, but the Constitution itself. If the free state of Missouri says that they will not act as federal enforcers, then I say God Bless you!
      The real difference is that blue states get away with their infringements because they ARE blue states and they walk in lock step with the other socialist dogs (no offense intended to actual dogs).

  8. Can you imagine Merrick Garland on SCOTUS? Whatever you say about Mitch McConnell is probably correct, but we still have to thank him for keeping that tool Garland off the Court.

  9. Why is it so hard to understand that “states” as historically understood no longer exist. “states” are mere precincts of the federal government.

  10. These State nullification of Federal laws are just some value signaling and posturing for votes in the next election. No State can nullify a Federal law. All a state can do is protest the law in the public hooting and hollering spaces, or challenge the law in the Federal courts, eventually to the Supreme Court.

    I like the idea of State AG’s and legislatures teaming up with Second Amendment Rights Groups to challenge bad Federal laws and regulations. That can be real, and beneficial.

    Nullification laws are nothing better than political campaign grandstanding that wastes my money for no wins whatsoever.

    • The 2nd SUPERSEDES “fed law(lessness)” No “nullification” about it. \

      The author of this piece apparently fails understand the Bill of Rights and Federalism

      Missouri is RIGHT (as an Iowan hard to admit such)

  11. Now we are finally getting to what we need to talk about. The 50 sovereign states. Nullifying federal interference. And this was the beginning of starting an anti-federal feeling in the states prior to the Civil War. They were many critical issues. It all wasn’t just about slavery.

    There was a time in this country when both houses of the US Congress we’re armed to the teeth. Representatives and senators carrying knives, clubs, and guns. And they dare not turn their back on each other. They stabbed each other. They shot at each other. They had duels. The US Congress was a very bloody and violent place at one time in American history.

    And it all had to do with the federal government interfering in an individual states affairs.

    The “Field of blood”, violence in Congress and the road to the Civil War. (2018). This book states that even in the 1990s, congressmen were pulling knives on each other. And one of these cases involved a congressman from Alaska that I remember.

    Remember the Bundy Ranch???

    • The Bundy ranch consisted of only 140 acres, the rest of the so-called ‘ranch’ was taxpayer-owned land that Bundy was illegally occupying and grazing.

      Bundy was a welfare queen wanting free stuff from the government, and a federal judge appointed by Ronald Reagan found him guilty of illegally occupying these lands and ordered him to vacate, as well as pay back grazing fees.

      • MinorIQ,

        “Bundy was a welfare queen wanting free stuff from the government . . . “. You mean, exactly like you and the rest of your “give me free shit” Leftist/fascist troll friends??

        Wasn’t a supporter/fan of Bundy, but he was at least actually WORKING the land he was claiming. Although, TBH, I guess parasites like you and dacian the stupid “claim” all the “free” gummint benefits you champion.

        In addition to being a ridiculous, intellectually inconsistent hypocrite, you remain literally too stupid to insult. Go pound salt in your @$$.

    • And here’s details on Judge Lloyd George, a great jurist who just passed in 2020, appointed by Ronald Reagan.

      Judge George was a fighter pilot in the United States Air Force, honorably serving his country before entering the jurisprudence system.

      And he knew just what to do with welfare queen Cloven ‘hoof’ Bundy and his illegal property theft. Given we’re talking the wild West here, Bundy is fortunate that he wasn’t hung from a tree for claim jumping.

      “And in 2013, he issued an order authorizing the federal Bureau of Land Management to impound the cattle on Cliven Bundy’s Bunkerville ranch after the rancher was accused of failing to pay grazing fees.”

      https://www.reviewjournal.com/local/local-las-vegas/lloyd-george-longtime-federal-judge-in-las-vegas-dead-at-90-2142169/amp/

      You know, I find the actual facts of history just so fascinating…

      • MinorIQ, you don’t KNOW any “actual facts of history”. All you “know” is the Leftist propaganda that’s fed to you by the DNC and your “main stream” media. But, then, you’re so stupid you still think FDR was actually a good president, and Woodrow Wilson was a “Progressive” (private showings of “Birth of a Nation” in the White House? VERY “Progressive”!!!!!).

        You’re not only a brainless partisan, you’re a stupid brainless partisan. Either remove your head from your fourth point of contact, or at least get your surgeon to install a window in your belly button, so you can actually see WTF is going on.

  12. “Nullifying federal interference.”

    Federal “interference” isn’t really being “nullified”. The federal government is being denied free local assistance in enforcing federal law. The feds are free to use their own federally funded and authorized resources to enforce federal law within a state or local jurisdiction.

    Long ago, the US Supreme Court ruled that the feds cannot compel state and local officials to enforce federal law at the expense of state and local government. The feds may purchase state and local assistance (reimburse expenses). Not certain that offering reimbursement forces state and local governments to assist in enforcing federal law.

    The state law in question is interesting because it seems to prohibit assistance to the federal government under any circumstance. Neither does the state law permit or endorse interference with federal officials enforcing federal law. One question that arises is whether the state can use the law in question to legally ignore federal warrants and subpoenas.

    • “Long ago”? It was only 25 years ago, and the case was Printz v. United States (95-1478), 521 U.S. 898 (1997), brought by Jay Printz and Richard Mack.

      www law cornell edu /supct/html/95-1478.ZO.html (you know what to add)

      • “Long ago”? It was only 25 years ago,…”

        Yes, in today’s terms, 25yrs is a long time, an entire generation. Ask a college student graduating in May 2022 (or 2021 for that matter).

        Thanx for the case cite. Was too lazy to find it myself.

  13. Even with reimbursement the feds can’t compel cooperation from state or local governments. The state by saying that anyone deprived of their rights automatically has standing to sue any local government who assists to the tune of $50K per incident puts a major burden on all local police not to cooperate with the feds. For example:

    Suppose the feds pass a law that says no magazines larger than 10 rounds and the St. Louis PD pulls over a car and the driver is caught with a Glock 17 loaded with 18 rounds, the driver also has a couple of spare mags, one of which is loaded with 32 rounds St. Lous PD cooperates with BATFE and turns over all the above for prosecution. Is St Louis open to be sued for the Gun, and each magazine, and each cartridge? If so they would be looking at a tab of 3.5 million dollars.

    If Missouri succeeds, then we will see other free states adopt this kind of statute and federal gun control efforts will stall.

  14. avatar Geoff "A day without an obsessed, obviously brain-damaged and mentally-ill demented troll (who deserves to live in New Jersey) is like a day of warm sunshine" PR

    Now, can we use the same strategy to attack the 1934 NFA?

  15. SCOTUS ruled that AZ couldn’t enforce a state law that was identical to the federal law. Since the state can’t enforce a federal law on illegal immigration (that was part of the ruling), then the state shouldn’t enforce ANY federal law, no?

    The feds can enforce any federal law in any state, but there is no legal requirement for the state or locals to aid them. In any way. Likewise, a state can pass laws dictating what LEOs in that state are authorized to do, and not do. Back during the original Assault Weapons Ban in the 90s, it was ruled that the feds couldn’t compel state and local LEOs to enforce the AWB.

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