ian millhiser

Missouri’s Second Amendment Preservation Act (SAPA) is one of the most incompetently drafted statutes to reach the Supreme Court in a long time. It is written as though the state legislature were trying to goad federal courts into striking it down — something such a court did, in fact, do last March.

And yet, if you stare at the law long enough, it is possible to find individual provisions that may actually be constitutional.

Granted, most of the law reads like a love letter to a discredited theory of states’ rights that sparked a crisis in the 1830s which threatened the Union and foreshadowed a coming Civil War. But, as Missouri Attorney General Andrew Bailey argues in a brief to the Supreme Court, at least some parts of the law can plausibly be read to advance a lawful and constitutional goal: barring Missouri law enforcement officers from enforcing certain federal gun laws.

The question the Supreme Court must untangle in Missouri v. United States, in other words, is what to do with a gun rights law that could have been constitutional if it were written differently, but that instead reads like it was drafted by a member of the John Birch Society after a night of heavy drinking.

— Ian Millhiser in The Supreme Court Considers Whether a Very Stupid Gun Law Is Also Unconstitutional

RELATED ARTICLESMORE FROM AUTHOR

46 COMMENTS

  1. I guess I missed that part in the Constitution requiring state and local officials to enforce federal law, regardless of whether they believe that the laws are constitutional or not.

    • It’s right between the part that authorizes a gigantic welfare state and the part that allows the feds to print up counterfeit dollars to pay for everything.

    • When former Az. Gov Jan Brewer tried to enforce immigration law to stop the mad border rush during Obama’s reign of terror the courts judged in favor of Obama’s open boarder policies. States had no right to enforce Federal jurisdictions.

    • I guess I also missed the part in the Constitution providing for federal oversight on issues existing entirely within an intrastate framing.

      The 10th Amendment does exist, and the Interstate Commerce Clause holds no weight if there is no interstate commerce involved whatsoever.

      • They’ve been contorting the Interstate Commerce Clause way beyond recognition for a long time now.

      • Besides that, the commerce clause only intended to make the federal government the “referee” to make the states play nice; using it to grant federal authority to any economic activity that involves crossing state lines is actually what it was meant to prevent.

        • Not just any economic activity that involves crossing state lines but any activity that could effect economic activity that crosses state lines. Can’t remember the name of the case but back under FDR the SCOTUS ruled in favor of the .gov where a farmer wasn’t allowed to raise wheat to feed his chickens because even though it didn’t involve crossing state lines or even any actual economic activity, the fact that he didn’t buy the wheat effected interstate commerce. SCOTUS finally struck one down in the 90s with the national gun free school zone law. They had to reword it so it’s only a federal crime if it is also a state crime.

        • “Can’t remember the name of the case but back under FDR the SCOTUS ruled in favor of the .gov where a farmer wasn’t allowed to raise wheat to feed his chickens because even though it didn’t involve crossing state lines or even any actual economic activity, the fact that he didn’t buy the wheat effected interstate commerce.”

          Mr. hoosier_grand_daddy just above mentioned it, ‘Wickard v. Filburn’ (1942).

          And there is current High court speculation that Thomas might like to take a big-‘ole swing at ‘Wick’ in the (hopefully) not-distant future… 🙂

    • You obviously missed the part of the constitution that instructs that unconstitutional laws, even if passed into law, are null and void.

    • Just a reminder to everyone. The members of the John Birch Society, who were also elected members of the California state legislature, spoke out in favor and supported the black panther party first for self-defense. For their second amendment and first amendment rights to openly protest peacefully in California.

      It was the atheistic members of the legislature who refued to support the civil rights of the Black Panthers. And It was a Jewish lawmaker who co-wrote the most racist modern day gun control law, the Mulford act.

      Btw
      The gun owners of america organization also supported the right for the panthers to protest peacefully using firearms.

      • The John Birch society is a lot of fun that I wish I had more time for, great reading lists too.

        • I will always point that the John Birch Society members voted against the Mulford Act. And yes, I don’t know all about the interesting things, that the critics say, about the John Birch Society.

        • Eh when one looks at the list of the critics it looks like a carbon copy of the groups that hate traditional Christianity…….or parents having a day in their childrens education.

    • Interesting questions regarding Constitutional *requirements* for state LE to enforce federal law, I wonder how nobody thinks to ask about *authority* for any such action. Am I authorized to enforce Federal tax law? Should I move to DC to begin investigation of Biden family corruption? I certainly have as much authority for that as my city police force!

  2. How is this different than places calling themselves sanctuary cities? Federal law is clear on that topic.

  4. Literally arguing “more centralized control and less individual liberty is how we save the country!”

    And they call us fascists.

      • Historically, the states have refused to enforce many federal laws. The libertarian historian and writer Tom Woods has documented many of these instances.

  8. Let us substitute the Fugitive Slave Acts of 1793 and 1850 for the National Firearms Act of 1934 and the Gun Control Act of 1968. Would Ian Millhiser have a problem with Missouri making law to prohibit it’s peace officers from capturing and returning slaves to their owners?

  9. Why did you bother with this article? SCOTUS refused it 4 days ago. Only Thomas voted to reinstate it. Waste of space and time.

  10. There is zero requirement to enforce federal law as a state certified officer. SCOTUS says they ain’t hearing it so…

  11. Clearly Ian Millhiser is incapable of differentiating between his bias and Constitutional law, thus rendering him the very thing he accuses others of being…incompetent. What the Missouri law does is prevent several agencies from co-opting or influencing state resources (one of the things the Constitution prohibits as well). While that also has the effect of crippling agencies like the ATF, they can compensate simply by dedicating more of their own resources to their operations in Missouri. The reason the leftists are so up in arms about this stems from the fact that other states will follow if the Missouri law is found to be constitutional and there won’t be enough money available to promote their anti-gun agenda.

  12. When are we going to talk about weed, immigration and the FOPA of 86 then? Clearly a lot of states do not GAF about any of those laws.

    • I was talking about that with a friend of my dad a few years back and he lamented that when he could first vote, the gun people and the weed people in Congress could get together and say, “We’re not totally down with our ideas, but we’ll vote for your bill if you vote for ours”, but now they just want to write laws so they can throw people they disagree with in jail.

  13. At least I’m glad to hear a lefty statist admit that “state’s rights” sparked the War of 1861 and not “slavery.” For generations, we southerners have insisted that the confederacy was all about the federal government’s unconstitutional, draconian control over the individual states.

    • And, as Jeff Davis and his co-conspirators discovered, the Confederate States needed MORE not less, central government control. Prosecuting the War of Southern Rebellion was often like herding cats under the “confederation.”

    • Sir. I suggest you read the “cornerstone speech” given by the vice president of the confederacy. Alexander H. Stephen’s.
      He says the war was fought for slavery. Not just federal interference in state affairs.

      But I will say that most of the men who fought for the Confederacy. Only a handful, a very small number of them actually owned slaves.

      • Yep.
        I knew a guy in my university student days who really freaked out some of the guys who drove around with Confederate battle flags on their trucks: he had an original one inherited from an ancestor who fought in the war, to protect his home.
        What was freaky about that? The guy was jet black, with black ancestors all the way back — and yes, that ancestor had a small farm that looked to be in Sherman’s path, so he stepped up to fight for the South. Those Confederate wanna-be types, despite the intellect to be university students, couldn’t wrap their heads around the reality that there were free blacks who fought wearing grey because Sherman was coming and their homes stood in his way.

        • Both sides would prefer a very “black & white type view” of the Civil War. When in fact, it is extremely complex, complicated as in any war. Now, let me say something that will make many people nervous. The Jews are credited with financially backing the Confederacy.
          Read:
          “The Jewish Confederates”
          by Robert N Rosen (2001)

          People never ask. How was the confederacy financially supported???

        • The leadership of the Confederacy was most certainly fighting to keep slavery alive in the United States.

  14. Mizzu can refuse to enforce or assist any and all federal officers/agencies at any time…Just ask ICE…The State can choose become a Second Amendment Sanctuary State too…

  15. This is an interesting test actually.
    While Millhiser seems to be looking down upon the law, which was passed, it appears that we are lining up a fight for federalism in reality.
    If a state wants to be less strict than federal laws on the books, like the Texas suppressor law, is that ok, or does SCOTUS only step in when the state laws are more restrictive?
    This could be far reaching beyond just the second amendment.

  17. FYI to everyone.
    It was the state of Missouri who wrote the “mormon execution order”. Making it perfectly legal in the United States to kill a white person as long as they were a Mormon.

    Now, perhaps there are some states that actually refused to carry out , or allow this order to be committed on their soil???

      • Excuse me, Crognale, but the day anyone shuts me up about anything will be an awful disgrace. Take your dammit and you know where to put it.

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