by Ron Calzone, Missouri First
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Generic Witness Form: Witness form link for HB 1439
HB 1439 “passed” in the House 110 to 41. SB 613 is held in reserve.
A lot has been going on behind the scenes the last few weeks with the Second Amendment Preservation Act. The Senate version has passed in the Senate and needs only one more vote by the House, if it’s not amended, and it will go to the Governor’s desk.
Since passing the Senate, however, ways of greatly improving the effectiveness of the bill have been discovered, and the House version of SAPA (HB 1439) is the vehicle for those improvements. The Senate version (SB 613) is being held in reserve, just in case something happens to HB 1439.
Read below the witness form link for an explanation of the improvements to be considered at the Senate General Laws Committee meeting this coming Tuesday. Read the proposed substitute here: Proposed-SCS-HCS-HB1439.pdf
We need to ask the General Laws Committee to add the ineligibility clause and remove the controlled substances clause. (See details, below.)
Hearing On Tuesday!
Your witness form needed asap…
Summary of HB 1439
The one thing we know about the future of the Missouri Second Amendment Preservation Act is that the anti-gun zealots will pursue every legal vulnerability they can find. One of the most important strategies for our success is to minimize those vulnerabilities.
To that end, HB 1439 broke the original SAPA language into distinct sections — a move that will make the bill even more clearly severable than before. That means if a court throws out part of the bill, the remaining parts will survive.
HB 1439 also includes some redundant language, with just enough subtle differences to ensure survivability of one or the other sections.
This restructuring fixes what could have been a major problem with SB 613.
The Difficulty of Federal Criminal Charges
The federal misdemeanor charges have been removed, but HB 1439 is still the most powerful gun control nullification bill in the U.S.
In spite of what the detractors say, the federal misdemeanor charges would have been constitutional. See this opinion from the 9th Circuit: Idaho v. Horiuchi
This well documented opinion about the shooting of Randy Weaver’s wife in the infamous Ruby Ridge incident explained that federal officials CAN be charged with state crimes when they violate a citizen’s constitutional rights in spite of their claim of something called “Supremacy Clause immunity“.
However, we also learned from that incident how difficult it is to do so, since the Feds preempt cases involving federal officials and move the cases to federal courts. (In spite of that ruling and admissions of guilt by the Feds in the Weaver shooting, the Feds pulled out all the stops to protect their own.)
So, until we have a state governor and attorney general who are willing to stand up for the People’s rights, it would be wiser to keep our powder dry.
When you add the questionable value (for now) of the misdemeanor charges AND the political resistance to a bill that needs every vote to overcome the governor’s veto, it was clear that the tactical thing to do is punt on the criminal charges and focus on other ways to push back.
The Anti-Commandeering Doctrine
At the core of the Missouri Second Amendment Preservation Act (SAPA) is the application of the anti-commandeering doctrine. (PDF version here.) This essay explains how four landmark U.S. Supreme Court cases ensure the survivability of SAPA in any legal challenge. The two most recent cases are NFIB v. Sebelius (Challenging Obamacare) and Mack / Printz v U.S (Challenging the Brady gun control act).
The resulting jurisprudence is a prohibition of federal usurpation, or “commandeering” of state resources, like law-enforcement functions and the legislative process. It is a clear affirmation of a state’s right to refuse to cooperate or participate in federal actions. The NFIB v. Sebeliusopinion also forbids coercion through threats of withholding federal funding.
HB 1439 is now almost purely an anti-commandeering bill. Based on sound constitutional principles that even the U.S. Supreme Court agrees with, anti-commandeering means thatMissouri will not allow any of its resources to be used to implement or assist federal gun control efforts.
That includes all Missouri officials and law-enforcement personnel.
And without assistance from the states, federal gun control efforts are hamstrung.
A Loophole To Plug
There remains a loophole in HB 1439, however. State peace officers routinely allow themselves to be deputized by federal agencies. That makes a Missouri cop a federal agent and then they can claim that the Supremacy Clause immunity applies to them, too.
We need to amend HB 1439 to close this loophole.
We need to ask the Senate General Laws Committee to add language that forbids anyone who violates the prohibitions in HB 1439 from serving as a peace officer in Missouri. (See Section 1.470 in the Proposed-SCS.) If they want to work with the Feds to gain Supremacy Clause immunity and violate your 2nd Amendment rights, they lose their Missouri law-enforcement job. That choice will be a huge disincentive to siding with the Feds.
Local law-enforcement agencies like to see their men deputized by the Feds because they get paid by federal dollars to do so. Nothing in HB 1439 will prevent that, as long as their purpose is drug law or other enforcement, and not enforcing unconstitutional federal gun control.
Note that the Supremacy Clause immunity loophole was not dealt with in SB 613, and we think it’s more important than the misdemeanor charge that is in SB 613.
We need to ask the General Laws Committee to add the ineligibility clause.
Problems to Fix
There were a few amendments added to HB 1439 before it passed the House. One good one allows you to choose to qualify with either a revolver OR a pistol when training for a CCW permit.
Another amendment relates to regulating corporate security advisors. It may be good or not so good, depending on your point of view, but it clearly violates the constitutional single subject rule and must be stripped in the Senate version.
The BAD amendment is in 571.030.1(11). This new clause adds to the list of felony gun crimes possessing a gun and “controlled substances” at the same time. That sounds benign enough until you consider that the Missouri Department of Health gets to decide what is considered a “controlled substance”. This provision will be stripped in the Senate version as well.
We need to ask the General Laws Committee to remove the controlled substances clause.
HB 1439 Is A Better Bill
If the Senate will pass the bill with the changes described here, it will be a better bill than SB 613 and also better than last year’s HB 436.
We’re on the final push to passage, so please stay tuned and be ready for action!