A vetoed gun-rights act has Missouri attorneys pondering Civil War-era questions of nullification, a loaded term that evokes secession.
Legal scholars say the act is largely symbolic. Proponents in the House are poised to override the veto and say the act merely shores up Missouri’s commitment to constitutional gun protections. And one St. Louis attorney is preparing to file a lawsuit in federal court if the Legislature overrides the veto.
The Missouri House of Representatives passed HB 436, known as the Second Amendment Preservation Act, on April 18 with a vote of 115 to 41. The Senate approved an amended version of the bill May 2, with a vote of 26 to 6, and the House approved the Senate’s changes 116 to 38 on May 8. On July 5, Gov. Jay Nixon vetoed it, calling it unconstitutional and in violation of the Supremacy Clause, which spells out that federal law supersedes state law.
The Legislature’s veto session begins Sept. 11. An Associated Press poll of legislators found that the veto is likely to be overridden, and the bill’s sponsor, Rep. Doug Funderburk, R-St. Peters, calls an override “imminent.” By his count, he says, the veto will not stand. A two-thirds vote of the Legislature is required to override a veto.
Funderburk said he doesn’t see the bill as nullifying anything.
“What the bill does is positions Missouri to have standing to protect all Missourians, should the federal government decide to go down the course of people who literally just want to take your guns away,” he said in an interview. “It does nothing to intervene with reasonable regulations.”
Funderburk, who is openly critical of Congress, says that the law is merely a way for the state to stake a claim to the Second Amendment, no matter what “Congress, in its infinite wisdom” might do in the future.
“It just gives Missouri standing in a situation where we might feel someone’s rights are being offended, abused or taken away by the federal government,” he said.
Attorney Stanley Cox, a Republican from Sedalia, voted for the bill.
“I think there is a concern that the current president is not supportive of the Second Amendment,” Cox said in an interview. He also said that Nixon is not a Second Amendment supporter.
HB 436, Cox said, “simply clarifies the sovereignty of the people of Missouri. It clarifies that the supreme law of the land is the Constitution, not the executive or even the federal government.”
The bill specifically calls out the provisions of the National Firearms Act of 1934 and the Gun Control Act of 1968, which were the first federal laws relating to gun control. HB 436 says that “Any official, agent, or employee of the United States government who enforces or attempts to enforce any of the infringements on the right to keep and bear arms … is guilty of a Class A misdemeanor.”
Funderburk said that HB 436 could see Missouri law enforcement arresting federal agents, “if the federal government wants to take it to that level. They will have a very clear understanding of what the law of the land is, and they will have to decide to violate it.”
Burton Newman of the St. Louis Lawyers Group, whose wife is state Rep. Stacey Newman, D-St. Louis, has long fought for gun control in Missouri. He said he’s satisfied that there is “sufficient legal basis for the court to find the entire Bill 436 unconstitutional” both under the state and federal Constitutions, and intends to file a lawsuit in federal court if the veto is overridden.
“If the Legislature does not uphold the veto, this particular statute will be declared unconstitutional,” he said.
“A state law that attempts to undermine federal law will not be upheld,” he said. “Here, they’re not only attempting to undermine federal law, they’re attempting to eliminate federal law.”
Newman contends that the law would criminalize federal gun law enforcement. He said it brings to mind the attempt in Little Rock, Ark., to defy the Supreme Court’s school desegregation order in Brown v. Board of Education.
“The Supremacy Clause is there; it’s always been there,” Newman said. He calls the act a clear attempt at state nullification of federal law, which is a cut-and-dried overreach.
Rep. Kevin McManus, a Kansas City attorney and a Democrat who voted against HB 436, said in an interview that a “political calculus” was at play in passing the act.
“I have to take an oath of office to support constitutional legislation,” he said. “This is one where it doesn’t fit that qualification.”
McManus said that he is a Second Amendment supporter, but that HB 436 overreaches the state’s authority and isn’t necessary.
“We spent a lot of time focusing on problems that don’t exist,” he said. “We like to talk about being job creators, and I think what we’re really doing is creating jobs for lawyers.”
The act states that the supremacy of the federal Constitution “does not apply to various federal statutes, orders, rules, regulations, or other actions which restrict or prohibit the manufacture, ownership, and use of firearms, firearm accessories, or ammunition exclusively within the borders of Missouri.” Those, it says, “exceed the powers granted to the federal government.”
Gladstone attorney Kevin L. Jamison, a supporter of the vetoed act and a self-described “gun guy,” said that characterizing it as nullification is “hysteria.” The bill, he says, is “largely symbolic.” It invalidates any federal act that infringes on the Second Amendment rights of Missourians, he said, but doesn’t trample federal law.
“It doesn’t have to be a constitutional conflict,” Jamison said. “The bill says that any federal act that infringes on the Second Amendment rights of Missourians is invalid.”
Jamison said that the law is “a cheerleader effort for the Heller and McDonald decisions.” District of Columbia v. Heller and McDonald v. City of Chicago are recent Supreme Court cases that struck down city handgun bans as running afoul of the Second Amendment.
“It’s mostly a symbolic thing, and something the Legislature does from time to time, in this case putting the federal government on notice that they cannot go any further,” he said. “This may be a speed bump to the federal government, but 50 speed bumps” could have a significant impact, he said.
The National Rifle Association, according to spokeswoman Jacqueline Isaacs, takes no position on the act.
Anders Walker is a professor of law at Saint Louis University, with focuses in constitutional law, criminal law and legal history. Nullification becomes an issue if Missouri law enforcement attempts to actually stop federal law enforcement, he said. HB 436 edges close to nullification, but it would be more of a political statement than a major change.
“We happen to have a law in Missouri that declares that life begins at the moment of conception,” Walker said in an interview. “That’s a political statement. Even though it can be seen as rejecting the Supreme Court in Roe v. Wade, it’s on the books and it’s a statement of our political beliefs. And this would be similar.”
Walker drew a comparison between the act and state decriminalization of marijuana.
“Washington State can decide not to arrest people for violating federal marijuana possession laws,” he said. But it remains a federal crime, and federal law enforcement can still bust people, no matter what the state says.
“What Missouri cannot do — and I think this is why the governor vetoed the bill — is stop federal law enforcement from enforcing federal law,” Walker said. “They can theoretically agree not to cooperate by simply telling the ATF that they’re not going to pursue people who may or may not have illegal guns, but the idea that they could actually stop a federal agent is unconstitutional.”
Constitutional scholar Allen Rostron at the University of Missouri-Kansas City is the William R. Jacques Constitutional Law Scholar and professor of law, and previously worked as a senior staff attorney at the Brady Center to Prevent Gun Violence. He points out that Montana and Kansas have enacted similar laws, which haven’t yet faced federal challenges.
For now, he said, “the federal government doesn’t seem to be interested, to the extent that other states have passed laws.”
Observers are keeping a close eye on neighboring Kansas, where a new law says: “Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas.”
Attorney General Eric Holder wrote to Kansas Gov. Sam Brownback, calling that law unconstitutional, according to media reports.
“The legal challenge to the Kansas statute is going to tell us a lot about how these things are going to go,” Jamison said.
Funderburk, for one, isn’t worried.
“Attorney General Holder said he’s not going to recognize this [Kansas] law, but you know what? At the same time I see states across the country legalizing marijuana and the federal government isn’t doing much about it.”
Editor’s Note: This story was reprinted with permission from Missouri Lawyers Weekly.