Missouri officials recently defended in court a far-reaching state law that declares some federal firearms laws “invalid,” a stark demonstration of how far the state has gone to thwart restrictions on guns.
Missouri Attorney General Andrew Bailey’s Office urged the federal 8th Circuit Court of Appeals to uphold the state’s Second Amendment Preservation Act or SAPA during oral arguments on Feb. 23. The 2021 law, signed by Gov. Mike Parson, spurred confusion among law enforcement when it went into effect.
The U.S. Department of Justice has sued to overturn the measure. U.S. District Court Judge Brian Wimes in March 2023 ruled the law unconstitutional, but Missouri appealed.
The courtroom showdown between Missouri and the DOJ had long been scheduled for February, but came a little over a week after at least two people exchanged gunfire, according to prosecutors, following the Kansas City Chiefs Super Bowl rally, killing one bystander and injuring more than 20 others.
The mass shooting has led to renewed calls for action on gun violence and focused fresh attention on Missouri’s loose firearms laws. Republicans, with few exceptions, have resisted demands to consider new restrictions – and since the shooting Bailey has promoted his role in defending the Second Amendment Preservation Act.
The DOJ has argued SAPA “severely impairs federal criminal law enforcement operations” to fight gun crime in Missouri. Some local law enforcement have questioned whether the law allows them to cooperate with federal officials.
As state attorney general, Bailey is tasked with defending state law in court. Bailey, a Republican facing a competitive primary contest, has publicly framed his defense of the state law as a defense of the Second Amendment.
But in court, his office has instead centered its defense on the 10th Amendment, which reserves for the states powers not delegated to the federal government.
“This is not a Second Amendment case, it is a 10th Amendment case,” Missouri Solicitor General Josh Divine told the appeals court.
The federal gun laws declared invalid by SAPA include statutes covering weapons registration and tracking, and possession of firearms by some domestic violence offenders. State and local police are prohibited under the act from helping federal agents enforce any of the “invalid” laws, or from hiring former federal agents who had enforced them.
Under the law, police departments are subject to $50,000 lawsuits from private citizens who believe their Second Amendment rights were violated.
U.S. Circuit Judge James B. Loken appeared highly skeptical of Divine’s invocation of the 10th Amendment. He said the 10th Amendment doesn’t give states powers prohibited by the U.S. Constitution and pointed to the Constitution’s Supremacy Clause, which ensures federal law is supreme over state law.
“Counsel, I’m looking at the text of the 10th Amendment and your argument does nothing for me,” Loken said.
Bailey’s office argues SAPA does not nullify federal law. In court, Divine cast the law as telling government agencies not to use state resources to enforce unconstitutional federal laws. He argued the law only expresses a constitutional interpretation.
“That’s nothing like Jim Crow where you had state police blockading schools to prevent compliance with federal desegregation orders. The rhetoric by the United States here is way off base. It’s good for shock value only,” Divine said.
The DOJ continues to argue the law is an unconstitutional attempt to overturn federal law. In court papers, the agency said the law has disrupted longstanding state-federal task forces and information sharing.
In at least one instance, a Missouri State Highway Patrol trooper released a federal fugitive. The DOJ in a court filing said a Highway Patrol trooper in September 2021 released the fugitive rather than risk liability for the state agency.
DOJ attorney Jeffrey Eric Sandberg suggested to the appeals court that SAPA could encourage defiance of federal law, potentially leading to deadly consequences. He raised the hypothetical scenario of a U.S. marshal who seeks to take a fugitive into custody only to find the fugitive believes they have a right to resist.
“The last thing we want is a violent confrontation over the proper enforcement of federal law,” Sandberg said.
The appeals court took the case under advisement. It’s unclear when it will reach a decision.
The law has effectively been on pause for the past year. When Wimes ruled the measure unconstitutional, he ordered that state and local law enforcement may participate in the investigation and enforcement of federal firearms crimes without facing any penalties under the law. Wimes also blocked Missouri from any implementation or enforcement of the measure.
In October, the U.S. Supreme Court denied a request by Bailey to allow Missouri to enforce the law while its appeal is ongoing.
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