[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.
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.
Two decent “wins” in various courts, Mueller dropping his report with no further indictments, a DoS against NZ’s gun website, my mother in law leaves having had a good visit, got inxurance to cover more than $20K in outstanding bills and the weather is decent to bring out the bikes, plus most of the sand is off the roads?
Shaping up to be a decent end of the week. Might have to buy a gun to celebrate.
And then the other shoe dropped………
That’s probably me doing too much at once and “dropping” that comment on the wrong page here. LOL.
Amusingly enough as I read your reply I was listening to NOFX’s So Long and Thanks for All the Shoes. Weird how things like that work out sometimes.
“…my mother in law leaves having had a good visit, got inxurance to cover more than $20K in outstanding bills…”
*Serious* congrats on the relief of 20 K in bills. Had a similar victory with my very expensive recent little upset, it looks like I won’t be out any of my own cash, and my crushed bike gets replaced in the bargain. Thanks Geico!
Congrats on the good mother-in-law visit, I never got to meet my Chinese girlfriend from years back ‘Dragon Lady’ mom, but I heard *plenty* about her…
The weather is decent to bring out the bikes? Still have 3 feet of snow on my property. Today, it’s still snowing. My Harley has been parked in my shop for a year and a half. Last summer we had wildfires to no end. But, it’s okay, I still have gun rights many other states only dream about.
Gassed up one of the crotchrockets yesterday. I’ll take it out for real tomorrow.
A year and a half. Ugh, I’d trailer that thing somewhere just to ride it at that point.
Getting out of here with a trailer during winter would be no fun. Could have left sometime last summer for a ride, but the fires kept me busy from July thru Sept. To be honest, I’m a fair weather rider, can’t stand riding in the cold, don’t mind the heat. At this time of the year, no part of Utah is warm enough for me to ride. Rode to Front Sight outside of Vegas a couple of years ago in July. Left early, about 0600. Was in the lower 40’s. Had to stop 35 miles into the ride and thaw out with hot coffee. Like I said, I’m a fair weather rider.
Fair enough. It’s getting close to 60 here some days. That’s warm enough for me. I tend to agree that when it gets down to the low 40’s I’m not very happy about riding and why do something you enjoy when you won’t enjoy it?
Well good thing you aren’t a fan of Vampire the Masquerade: Bloodlines.
If I’m going back that far I generally go to Painkiller and nail vampires to walls with that crossbow/steak thrower thing. Or, the greatest game of all time, BF2142.
Painkiller, classic. I wish the resolution would get a bump to 1080P but it doesn’t. Too bad the story got changed, I guess it was too incorrect even then.
The “no-fly” list is a ludicrous fiasco. My older brother once got stopped from boarding a flight because someone with his first and last name was on the list, despite the fact that the physical description was all wrong, including eye color, hair color, and weight. And his wife was present when a little kid was barred from boarding because his name matched on on the list, even though the one on the list was noted as a tall adult.
Buy lots of guns, to make up for the ones I lost in my boating accident.
Lame.
*Great* idea doing a gun law roundup, and I have a contribution for it. Well, indirectly.
This article purports to go “behind the scenes” of SCOTUS to explain just how Roberts voted the way he did on declaring the ACA was a tax. Perhaps this gives some insight as to how decisions are crafted by SCOTUS?
I’d be interested in what the TTAG ‘Legal Eagles’ have as an opinion on this, and how it may apply to the NY Pistol case currently in front of the court :
“The inside story of how John Roberts negotiated to save Obamacare”
https://www.cnn.com/2019/03/21/politics/john-roberts-obamacare-the-chief/index.html
We fawn about small wins while the rapidly changing demographics guarantees we lose in the long run. Nicely done TTAG.
The demographics don’t change so much if we kick out all the illegals and build the wall.
We can ban hunger, death, and taxes while we’re in Wonderland, too
Death no, taxes if you want to live in a 4th world waste land, and hunger would be pretty easy if waste was eliminated. I get email updates from the department of agriculture, more specifically the USDA regarding food recalls. The most recent was Tyson pre-cooked frozen chicken strips that had possible metal foreign material in it. The amount was over 69,000 lbs. 69,000 lbs of chicken that is essentially going to be scrap because someone wasn’t paying attention. That is just one example of many. The wall could be built and illegals could be dealt with. Having the right politicians to make it happen is key.
I’m pretty happy about what happened in Deerfield,IL. I don’t care at all about NZ…it seems the terrorist/mass murderer/lunatic got his wish😩
Glad to see Missouri. Perhaps Missouri will be the Connecticut or South Carolina of the next war. Similar states will follow.
Makes me that much happier about living in Missouri. I carry a gun every day legally and most people don’t even acknowledge it if they happen to notice. I would say that’s because most people that do happen to notice are also carrying. I would definitely agree that an armed society is a polite society and most mind their own business and not meddle in other people’s.
Forcing everyone to own a gun is as bad as taking away everyone’s guns. Being American means I can wear a kilt if I choose, not ever wash my hair, etc. If I choose not to have a gun, that would be my right, also. This is a political stunt, that only wastes the state’s time and money.
Research why the representative that introduced the bill did it and you will find that he did it as a jab at the left. That was his whole point if you don’t want to own a gun fine that’s your right but don’t tell others you are going to force them to to do the same as you do. I think it was very well played. The left wants to tell gun owners they can’t own guns because they think guns are evil killers that no one is responsible enough to own. The same should go for gun owners to turn it back on them that they have to own a gun. Quid pro quo Clarise, quid pro quo.
Okay, so an even more useless gesture than usual, which clutters things up with more bad laws on the taxpayer dime.
All of the crap the left is doing isn’t? Last time I checked you don’t send the rooster in after the fox in the hen house. You get in the fight like you are in it to win and destroy the fox. I personally think it was a bold move long overdue. If the left thinks being told they have to own a gun is out of line for their rights then maybe they will learn to shut the hell up when it comes to other people’s rights regardless if they agree with them or not. This is where the saying my rights don’t end where their candy ass feelings begins applies. Just like my rights doesn’t trump their rights to those same candy ass feelings. I hope in the future we have more representation of this same caliber willing to turn the table on would be tyrants with a taste of their own medicine.
Can’t ban something you’re required to own!
“Forcing everyone to own a gun is as bad as taking away everyone’s guns.”
There is no ‘force’ with that. There is no charging or convicting someone who chooses not to comply.
What it does do is seriously play with the heads of stupid Leftists…
If the government can force citizens to buy health insurance then it can force citizens to buy guns or else tax them. :/
Restricting locals from enforcing “unjust” federal law is almost the same as nullification and is a very interesting Development that I hope catches on. It seems to have worked well for the progressives. Mandating shooting safety classes could be interesting. It wasn’t long ago that many high schools had their own gun ranges.
….Not sure about this article…It was politicals that got us here through the use of lawyers to nullify our Bill of Rights…With the use of clever “legalese” that the commoners would understand….Perpetrated by “Silver tongue” Liars to destroy Liberty…Personally, it’s not that hard…One criteria fits the 1st part of this article…The 2nd, “SHALL NOT BE INFRINGED!”
Pretty simple, and the last time I looked at US history…There was NO such thing as “National Federal Police Forces!” Only Federal investigative branches….
“…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.”
Ah, but do they ‘absolutely’ have the power to levy CRIMINAL charges against them? Because that triggers the Bill of Rights, including the 1st Amendment. Firing someone is easy, but criminalizing things is a hole different can of worms. It’s a stupid law that politicians created to try and rile up their base, just like many dems do with gun control laws. In the end, it could have all been accomplished with the same language that other states have, disallowing local\state LE from enforcing federal laws. Instead they had to muddy the waters by making parts of it clearly unconstitutional (the whole ‘nullification’ thing was pretty well settled by the Civil War).
“whole.”
Except that it wasn’t. Wars establish dominance, not truth. States nullify federal law and court decisions all the time, especially in recent years. Colorado and Washington pretty much nullified federal drug laws when they legalized pot. I really don’t see how arresting a federal official for “enforcing” an unconstitutional law runs afoul of the Bill of Rights.
Everyone on this blog (rightfully) complains and gripes 24 hours a day 7 days a week about how garbage federal gun laws are and how they violate our right to keep and bear arms and how wonderful it would be if we didn’t have to deal with the big bad federal government and it’s draconian laws. Congress is never going to repreal a word of it at this point and no federal court is ever gonna strike down one jot or tittle of it, and we all know it. And now a state actually grows some balls and decides to do something about it, and we hear “Oh no that’s awful and unconstitutional, those uppity states can’t do that. They need to know their place.” Cut me a break. If Missouri loses over this in court, fine. But I at least appreciate seeing a state that valued it’s citizen’s rights and is willing to fight like hell for them
Nullification isn’t unconstitutional due to the Supremacy Clause. The SC starts off “This Constitution, and the Laws of the United States which SHALL BE MADE IN PURSUANCE THEREOF”. States can’t selectively pick and choose whether to enforce laws that are constitutional, but If a law is unconstitutional, the SC doesn’t apply. SCOTUS screwed the pooch in McCulloch
My constitutional law final project was arguing that the second amendment included a right NOT to bear arms reflective of the first amendment right not to speak, and thus conscientious objection was constitutionally protected under both the first AND second amendment.
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