What Role Can States Properly Play in Resisting Potential Federal Overreach? A Recent Federal Case From Missouri Involving Gun Rights Illustrates Possibilities and Misconceptions

Posted in: Constitutional Law

In the summer of 2021, the Missouri governor signed into law the state’s so-called “Second Amendment Preservation Act (SAPA),” whose preamble (a section styled as “findings”) declares that the “supremacy” of federal law “does not extend to various federal statutes, executive orders, [etc., that regulate firearms and ammunition in various ways].” SAPA’s centerpiece provisions, Mo. Rev. Stat. §§ 1.410, 1.420, and 1.430, declare that certain categories of federal laws regulating firearms “shall be considered infringements of the people’s right to keep and bear arms [under the federal Second Amendment and the Missouri Constitution’s analogous provision]” such that these federal laws “shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.” (As discussed later, various other provisions of the SAPA go on to say and do other things.)

The federal government sued Missouri officials in federal court to invalidate each and every provision in SAPA, and to obtain declaratory and injunctive relief by the federal court to the effect that “state and local officials [in Missouri] may lawfully participate in joint federal task forces, assist in the investigation and enforcement of federal firearm crimes, and fully share information with the Federal Government without fear of SAPA’s penalties.”

Two weeks ago, a federal district judge ruled in the federal government’s favor and granted the requested relief. The district court’s sweeping opinion reflects fundamental misunderstandings of both federalism and separation of powers, and the court’s ruling should be reversed (in relevant parts) when Missouri officials appeal.

Let me be clear about a few key points at the outset. There are significant parts of SAPA that are unconstitutional and that should be enjoined; in other words, much of the district court’s bottom line should and will be preserved. (More on that later.) In addition, I am in no way endorsing the (incredibly broad) reading of the Second Amendment the Missouri legislature embraced in SAPA; indeed, it seems to me SAPA’s stated understanding of the Second Amendment is almost certainly wrong on the merits, and would be found wrong even by the current U.S. Supreme Court, which takes the Second Amendment seriously.

But wrong too is the district court’s blunderbuss reasoning. The district court ruled, among other things, that SAPA’s declaratory centerpiece, §§ 1.410, 1.420, and 1.430, violates the Supremacy Clause because it constitutes an “unconstitutional ‘interposition’ against federal law and is designed to be just that.” From there, the district court reflexively invalidated the rest of SAPA on the ground that no part of the statute was severable from the statute’s interpositional core.

The big problem with the district court’s “interposition” reasoning is that it cuts too broadly, and would essentially prevent a state from engaging in any government speech to register disagreement with federal laws and policies that might violate various limitations in the Constitution. The district court rightly points out (quoting seminal Supreme Court cases) that “states have no power . . . to retard, impede, burden or in any manner control the operations” of the federal government in arenas where the federal government has lawful power. But the declaratory centerpiece of SAPA does no such thing. It does not impede, burden, or control federal operations; it merely makes clear Missouri’s belief that certain federal laws violate the Second Amendment, and that such federal laws will not be respected by, or enforced by, the state. Importantly, §1.430’s words say that ostensibly illegal federal laws will not be enforced “by” the state, not that such laws will not be enforced “in” the state, the latter phrase being one that would suggest active interference by state officials in the efforts of federal officials to enforce federal law.

The closest the district court comes to identifying any actual impediment to federal law enforcement owing to sections 1.410, 1.420 and 1.430 is that these declaratory statements by Missouri “cause[] confusion among state law enforcement officials who are deputized for federal task force operations.” But this is an extremely thin reed on which to base a finding of unconstitutionality. For starters, there doesn’t seem to be a cause for genuine confusion here; except as otherwise mandated by conditional receipt of federal funding (essentially a contract state or local officials have already made with the federal government), SAPA seems clearly to forbid “voluntary” cooperation by state and local officials in certain federal law enforcement. If there were any doubt about this, the federal courts should construe state laws like SAPA narrowly (i.e., so as not to apply to conditional funding arenas) so as to avoid possible conflict with federal law (assuming that’s what state courts in the state would do), or at the very least certify questions about the meaning of recently enacted state law to the state supreme court, rather than read state law broadly as a basis for invalidating it. (And here we see how federalism and separation of powers operate together.)

Moreover, the district court’s “confusion” rationale would almost always prevent a state from engaging in government speech to call out (what it sees as) federal overreach. Whenever a state declares or pronounces that the federal government has violated the Constitution, some citizens might wonder who is in the right. But this kind of confusion is built into federalism, a structural relationship the framers set up in which the federal government and states would and should blow the whistle on each other, to the benefit of overall liberty.

Indeed, the SAPA dispute is not dissimilar to the famous Virginia and Kentucky Resolutions enacted in the wake of the federal Alien and Sedition Acts in the nation’s early years. As one commentator astutely pointed out about these formal state declarations of federal invalidity:

The nation’s first major constitutional crisis after ratification was resolved in a fashion strikingly consistent with The Federalist‘s vision of state legislatures as political watchdogs. In 1798, congressional supporters of President John Adams enacted several bills of dubious constitutionality designed in large part to stifle critics of the administration. The ability of the opposition press to attack the Alien and Sedition Acts was chilled by the prospect of prosecution under the Acts themselves. But if the Constitution’s general protections for freedom of speech and the press under the First Amendment were somewhat unclear in 1798, the special constitutional protections for opposition speech in state legislatures were undeniable. These bodies thus took the lead in politically challenging Adams and the Acts. The legislatures of Virginia and Kentucky adopted resolutions declaring the Acts dangerous and unconstitutional, and inviting sister legislatures to do the same. Despite some grand and ambiguous claims in the resolutions themselves, these enactments had no legal force. Nonetheless, they served as useful political ‘instruments of redress’ in alerting the People to the threat to their liberties and mobilizing political opposition to the Adams [Administration].

So the district court’s overly capacious reasoning jeopardizes an important part of American constitutional democracy—government speech engaged in at the state level. And the district court’s translation of this broad reasoning into a grant of similarly broad relief to the federal government in the SAPA case—a judicial decree that “state and local law enforcement officials in Missouri may lawfully participate in joint federal task forces, assist in the investigation and enforcement of federal firearm crimes, and fully share information with the Federal Government without fear” of SAPA’s penalties—wrongly prevents the state from deciding how much it chooses to cooperate with the feds. As pointed out above, and in this law review article, outside the context of conditional funding arrangements in which states have to live by the deals they make, states are freed, under the so-called anti-commandeering doctrine, to decide NOT to allow state and local personnel to use official time and resources to assist the federal government.

So the fundamental mistakes the district court makes in its ruling have big consequences and should be corrected on appeal.

None of this is to say SAPA in its entirety should survive. The key line (and much of constitutional law is about identifying and implementing lines) is between state government speech (which is permitted) and state government interference (which is not). Some of SAPA’s provisions cross that line. For example, one provision of SAPA on its face seems to direct not only state legislative and executive personnel to refrain from implementing federal law (which the anti-commandeering doctrine permits states to do), but also to direct state courts (see, e.g., § 14.40) to refrain from entertaining claims under certain federal laws relating to firearms, something states don’t have the right to do; even under the anti-commandeering cases, the federal government can require state courts to process federal claims, and failure by state courts to discharge this obligation is considered interference with federal law.

In addition, there are provisions in SAPA (e.g., § 1.450) that might be read to prevent private individuals in Missouri from assisting the federal government, or (e.g., § 1.470) that seem to punish individuals who previously worked for the federal government enforcing the federal laws in question. Both of these provisions, if read straightforwardly (and of course resorting to state courts to clarify state-law meaning might be helpful), do impede federal operations in a constitutionally impermissible manner. Yet another provision, §1.460, is tricky. That provision seems to authorize damage actions (in state courts) against federal personnel who, under color of federal authority, implement the federal laws Missouri thinks are unconstitutional. One might read the provision as codifying a “converse-1983” cause of action (an idea discussed in a law review article here). Such a device should be impermissible only to the extent that it imposes liability on actions that the U.S. Supreme Court would find to be within federal power; if a federal agent does indeed run afoul of the Constitution (and everyone agrees on that), then creating a state-law cause of action for damages might be perfectly appropriate. So the permissibility of this provision might depend on how different Missouri’s reading of the Second Amendment and the U.S. Supreme Court’s reading of the Second Amendment are.

At the end of the day, after the Eighth Circuit sorts through things, much of SAPA may rightly end up falling away. Even so, the district court’s misguided conclusion about the right states enjoy to register their constitutional views (however misplaced those views by states may be) needs to be highlighted and rejected.

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