The Missouri Second Amendment Preservation Act is Back

The Missouri Second Amendment Preservation Act is getting ready for its debut in the 2014 legislative session.

Missouri’s own, Ron Calzone, broke the news from his webpage, Missouri First.

Senators Tom Dempsey and Ron Richard released a rough draft for the upcoming legislative session after the Senate failed to over-ride Governor Nixon’s veto of the 2013 Second Amendment Preservation Act.

As Ron puts it, the, “re-drafting process has the potential to result in a bill superior to the bill that passed the House and Senate with super-majorities in 2013.”

The rough draft of the bill can be found on Missouri Firsts’ link here.

Ron critiqued the 2014 rough draft with a fine tooth comb. Following are some of the highlights.

Enhancements for the 2014 Bill

The new bill outlines the purpose of the Supremacy Clause

Although the several states have granted supremacy to laws and treaties made pursuant to the powers granted in the Constitution, such supremacy does not extend to various federal statutes, court 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; such statutes, court orders, rules, regulations, and other actions exceed the powers granted to the federal government except to the extent they are necessary and proper for governing and regulating of land and naval forces of the United States or for organizing, arming, and disciplining of militia forces actively employed in the service of the United States Armed Forces.

Improved wording in “which might reasonably be expected to create a chilling effect”.

(a)Any tax, levy, fee, or stamp imposed on firearms,firearm accessories, or ammunition not common to all other goods and services which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;(b) Any registering or tracking of firearms, firearm accessories, or ammunition which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens; (c) Any registering or tracking of the owners of firearms, firearm accessories, or ammunition which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens; and services which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens; (b) Any registering or tracking of firearms, firearm accessories, or ammunition which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(c) Any registering or tracking of the owners of firearms, firearm accessories, or ammunition which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;

According to Calzone, further improvements include,

In the original HB 436, this sub-section included in the list of unlawful federal infringements: “Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.”

The SL Draft 2 & 3 adds to that: “without the requirement of a warrant based on probable cause or an exception to such a requirement generally recognized by Missouri state courts.”

The new language seems to be aimed at fixing a problem that didn’t exist in the original HB 436. The original language applied only to federal acts ordering the confiscation of firearms, and only protects law-abiding citizens. The original language would not have precluded a federal officer from disarming a criminal they were arresting for non-firearms offenses, like drug trafficking.

Ron continues his critique on state and federal involvement,

1.320.5 – Prohibition of state participation in enforcement of federal infringements of gun rights.

Purpose: This may be the most important of the operative parts of the bill. The theory is that most federal enforcement actions rely on assistance by local law-enforcement, and that without that cooperation they can accomplish very little. The constitutionally of this provision is clear (See Printz v. U.S. and NFIB v. Sebelius), so it will survive court challenges.

This theory isn’t just theory. It’s a fact! The feds don’t have the resources to come into every state. They rely heavily on local and state cooperation. Studies estimate that local and state law enforcement assist eight out of 10 ATF raids.

Madison included non-cooperation in his blueprint to keep federal power in check.

On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. [Emphasis added]

Last year’s HB436 featured some of the strongest languages of any Second Amendment Preservation Act introduced in the states.

The bill reated a class A misdemeanor for federal officials who violate this section – a provision providing for enforcement of the Second Amendment Preservation Act.

As Ron states,

It provided the “teeth” required to truly defend Missourian’ gun rights.

Brave law-enforcement officers across the state made bold statements in which they committed to abide by their oath of office and support the Constitution in the midst of calls for federal laws, like a new assault weapon ban. The removed language was intended to give them statutory “cover” for doing their duty.

The non-participation clause in 1.320.5 will prove to be an inadequate protection against federal infringements as federal agencies continue to amass not-so-small armies which will no longer need local assistance. It should be a violation of Missouri statutes, enforceable by Missouri officials, for federal officials to violate the constitutional rights of Missourians.

Penalties applied to federal agents would create a mechanism to arrest and prosecute them in state for violating the act, and it could conceivably impede and deter federal action. It is a legitimate nullification act, falling under “legislative devices” in Madison’s blueprint.  But it would unlikely provide any cover or immunity for state and local law enforcement officers. If the local sheriff interfered with ATF agents conducting a raid,the feds would likely charge them under 18 USC § 372 for interfering with a federal officer and prosecute in federal court. A state law would not provide legal defense in federal court because the federal agent was acting to carry out federal law. Even though Missouri rightly declares violations of the Second Amendment unconstitutional, it will not carry any weight in federal court and will not protect the state or local law enforcement agent from prosecution.

Local law enforcement agents, particularly county sheriff’s who swear an oath to defend and protect the U.S. Constitution, always have the option of abiding by their oath and interposing to stop execution of an unconstitutional act. But no state statute or declaration will protect them from prosecution in federal court. They can’t expect the feds not to enforce laws they view as legitimate, any more than Rosa Parks could have expected not to go to jail for refusing to give up her seat.

Nullification means that any unconstitutional federal law is void and unenforceable in a state. States are not required to enforce federal laws in the first place. Signing a nullification bill into law  simply declares, “not only are we not required to enforce your law, we also refuse to aid in enforcement due to constitutional principle.”

Even if the bill doesn’t have “teeth”, noncompliance bills are force strong enough to be reckoned with. Personal liberty laws thwarted execution of the Fugitive Slave Act of 1850. Some of those laws did include provisions that subjected feds to arrest. But there are only a handful of cases documenting this, and none ending in the prosecution of a federal agent. The noncompliance provisions provided the real “teeth” in the personal liberty laws.

Even so, I agree with Ron’s suggestions to resolve the injustice of federal infringements on the Second Amendment.

Reinsert the original language with the addition of an explicit statement that state LEOs may, at their discretion, arrest a federal officer. That would alleviate concerns that local law-enforcement would be “forced” to arrest federal officials.

Effective date Contingency Clause

The enactment of section 544.085 shall become effective on August 28, 2017, or upon the reviser of statutes receiving notification that at least four other states have enacted into law substantially similar language as contained in section 544.085 of this act, whichever event occurs earlier.

This effective date has both pro’s and con’s.

Ron reports that this

Enhances the original bill. At first blush this provision seems like a cop-out, but upon closer reflection we believe it is a strategy worthy of consideration. With more states adopting similar laws, we have the advantage of “power in numbers”. And delayed enactment would allow an opportunity to enact laws to deal with what might be perceived as gaps in Missouri’s gun control laws which are presently covered by federal laws.

Currently, two states have enacted Second Amendment Preservation Acts. Those two states are Kansas and Alaska. Keep up to date with legislative tracking here.

My favorite recommendation in case 2017 is too far away and two more states do not join up to protect the Second Amendment,

Add an additional contingency that provides for immediate enactment if additional federal laws or orders which infringe on Missourians’ rights become effective.

AsCalzone states, “Encourage other states to follow suit. Although protection of Missourians’ rights should not depend on other states, the entire concept behind this bill is more powerful if more states assert the same rights.

One of his best points is, “Keep the bill focused on its purpose; Educate legislators and others about founding principles; Give notice of the effects of the bill; Establish clear legislative intent for the courts; Provide guidance to legislators in other states who seek to emulate the bill.”

This is a message we can take to every state, on every front.

Action Items

If you are a Missouri resident, please follow the action steps here. Get involved with local and state events and keep up to date with the most current Missouri news concerning the 2nd Amendment. Also, don’t forget to check out Missouri First.

If you are not a Missouri resident, introduce local resolutions, ordinances or a state-wide act to protect the 2nd Amendment. Click here for more information.