[ED: This is the first of a new series of weekly posts that will discuss and analyze some of the week’s most prominent stories affecting gun rights and the law.]
Matthew Larosiere
What a week for the inaugural gun law roundup, where we break down recent developments—using that term in the loosest sense—in the right to bear arms. This week we’ve seen an attempt to nullify federal law and compel gun ownership, a reactionary push to ban what was already banned in New Zealand, and Democratic candidates trumpeting “no fly no buy.”
The Missouri “Second Amendment Preservation Act”
I’ve had the most questions about this piece of legislation, which made headlines March 19. The Missouri Senate is expected to pass S.B. 367, what it calls the “Second Amendment Preservation Act,” which reportedly “bans all federal gun control laws.” The biggest question I’ve been getting: “Can they do that?” The answer? “Well, mostly no. But kind of yes.”
The Act “specifically reject[s]” and considers “null and void and of no effect” in the state of Missouri all federal firearm regulations, including the National Firearms Act of 1934, and the Gun Control Act of 1968. The Act makes it a crime for any federal, state, or local official to enforce, or cause to be enforced, any provision of federal law relating to the right to keep and bear arms.
Sounds great, right? So what’s the rub? Well, in its present form, the Act is unconstitutional. This isn’t some new-fangled type of unconstitutional, either, but settled law under our Constitution’s Supremacy Clause. In 1819’s McCulloch v. Maryland, the Supreme Court struck down a Maryland tax on the Bank of the United States, likening the power to tax to “the power to destroy.” This reasoning prevents a state from prosecuting a federal agent for enforcing federal law within the state, no matter how dumb the enforced law is.
More directly to the point, in 1958’s Cooper v. Aaron, the Supreme Court rejected attempts by Arkansas to nullify federal precedent. So Missouri can’t directly nullify federal law, or prosecute federal officers for enforcing federal law, but that doesn’t mean the state is powerless.
To put it simply: while Missouri can’t directly shut down federal gun control law, the feds can’t force Missouri to enforce federal law either. That’s where Missouri’s law has teeth. It specifically forbids Missouri officials from enforcing federal gun law as well, a system we’ve seen the federal courts approve multiple times in “sanctuary city” litigation.
Why does this work? There’s no doubt that our constitutional system ever foresaw the federal government growing as large as it does. With the wide berth the feds take, regulating everything from milk to machineguns, enforcement is a huge problem.
The feds don’t have the resources to put “beat cops” on the streets all over the country just to enforce federal law, so they depend on the cooperation of state and local law enforcement to hand over cases. Missouri absolutely has the power to direct its officials not to do so, and punish those who do. This may not alleviate the anxiety of having activity still be federally illegal, but it certainly gives breathing room.
This type of approach is a great first step to loosening the noose on the Second Amendment. It gives state residents some breathing room, and sends a clear message to the feds that these policies aren’t appreciated. Similar approaches have gotten the results lawmakers sought in the marijuana and immigration context, so there’s no reason it can’t work for guns.
All in all, Missouri could be making great strides here, but they might be better off having a separate bill just tying the states’ hands, and writing a symbolic “nullification” bill separately.
Missouri’s “McDaniel Militia Act,” Requiring AR-15 Ownership
Now we move from a “good first step” to an “odd stumble.” This separate Missouri Act would provide tax credits for firearm purchases, and mandates AR-15 ownership. It should be made clear off the bat that Missouri Representative Andrew McDaniel doesn’t support his own bill, at least as it’s currently written. It was a “ploy” to bait the anti-gun crowd, according to McDaniel. Still, some might think mandatory firearm ownership a good thing. So what’s the problem with this bill? The Second Amendment.
We know the First Amendment includes an implied, and just as important negative right: the right not to speak. The Second Amendment is no different. The government compelling someone to own a specific firearm is just as bad as the government compelling them to speak out in favor of a state policy. Not to mention that specifying the AR-15 is silly and prejudices the litany of other great platforms on the market. Maybe the bill wouldn’t be so bad if it included the M14, FAL, MAS 49/56, and others as satisfying its requirements. Nonetheless, we should take the right not to own guns as seriously as the right to own them.
New Zealand Bans “Assault Rifles” Again, Or Something
Semi-automatic weapons have been heavily regulated in New Zealand for years. With mandatory registration, and restrictions that would make even a lifelong California resident blush. Semi-automatic rifles in New Zealand were previously limited to 7 rounds, among other things.
The Christchurch killer ignored these limitations and was able to prey on unarmed civilians without reprise for the 36 minutes it took for police to respond. New Zealand’s response? A 5-round magazine limit, more vague descriptions of “military-style” firearms, etc.
The killer’s semi-automatic weapons were already banned under existing New Zealand law. So New Zealand is going to double-super-duper ban them.
It should be noted that New Zealand’s parliamentary system is nothing like ours. Having control of parliament more or less creates a three-year dictatorship, which is part of the reason why the legislative response was so quick.
This exercise is another in a long line of bumper-sticker gun control activism with an inexplicable obsession with magazine capacity. I’ve written before on the subject of “high capacity” magazine restrictions, and there really is no difference in effective fire rate.
It’s still shocking to me that, where there were two mosque shootings, both with examples of heroic attempts to stop the shooters, that the thought of enabling people to effectively defend themselves against these murderers never came to mind. It has never been, and never will be, a humane or reasonable response to a mass killing to further restrict the rights of law-abiding citizens who could become victims.
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Dems Rediscover “No Fly No Buy”
During her town hall with CNN on April 18, Sen. Elizabeth Warren said she wanted “Background checks. At the federal level. No fly, no buy. Like if you’re on the terrorist watchlist, maybe you shouldn’t be able to buy a gun. ” That received a thunderous round of applause. Sen. Kirsten Gillibrand voiced a similar opinion the same day.
This might seem reasonable, but the idea is teeming with due process concerns. Innocent people are placed upon federal watchlists all the time. Even the ACLU opposes the list as it stands. Anyone could be put on the list for innocent behavior, and face a lengthy and expensive proceeding to be removed. Mixing this dubious list with a suspension of Americans’ fundamental rights adds fuel to the proverbial garbage fire it already manifests.