Freedom

Story by 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.

So what does the Second Amendment Preservation Act actually do?

SAPA declares that Congress’s power to make laws “does not extend to various federal statutes … that collect data or restrict or prohibit the manufacture, ownership, or use of firearms.” It then describes the kinds of federal laws that the state purports to be invalid and declares that these 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.”

According to the Justice Department, SAPA seeks to invalidate several federal gun laws within the state of Missouri, including a requirement that gun manufacturers “must engrave serial numbers on their firearms,” a requirement that gun dealers must report any lost or stolen guns, and the federal law “disarming individuals who are subject to domestic violence protective orders.”

There is a word for when a state government simply declares a federal law invalid within its borders: nullification. And nullification is explicitly forbidden by the Constitution’s declaration that federal laws “shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”

Indeed, as James Madison once warned, if nullification were permissible, that would “speedily put an end to the Union itself.” It would place each individual state in a superior position to the United States as a whole and permit any citizen

Of course, if a state believes that a federal law violates the Second Amendment, or any other provision of the Constitution, it may file a federal lawsuit seeking to declare that law invalid. But the Constitution does not permit states to unilaterally declare that a federal law no longer applies within its borders.

That said, the Supreme Court has also endorsed a different states rights doctrine, known as “anti-commandeering,” which permits states to refuse to enforce federal laws. As the Supreme Court said in Printz v. United States (1997), “Congress cannot compel the States to enact or enforce a federal regulatory program.”

The difference between nullification and anti-commandeering is that the anti-commandeering doctrine does not purport to invalidate federal laws. Under cases like Printz, the federal government may still send federal law enforcement officers to any state, including Missouri, to enforce any federal law. It simply cannot order Missouri’s state officials, including Missouri’s police, to enforce federal laws that Missouri finds objectionable.

SAPA includes some provisions that at least arguably can be read to invoke this anti-commandeering doctrine. One provision, for example, says that “no entity or person … shall have the authority to enforce or attempt to enforce” the gun laws that Missouri deems objectionable. The words “no entity or person” include federal law enforcement officers, who cannot constitutionally be barred from enforcing federal law. But they also include state officials that Missouri may prohibit from enforcing those laws.

It also contains one provision that seems to exist somewhere between nullification and anti-commandeering. That provision forbids the state of Missouri from employing anyone who “previously acted as an official, agent, employee, or deputy of the government of the United States,” and who either enforced one of the state’s disfavored federal laws, or who gave “material aid and support to the efforts of another” who did so.

So what should the Supreme Court do with this mess of a statute?

Again, SAPA is primarily a nullification statute. The bulk of the law’s text offers a philosophical justification for nullification, lays out which federal laws the state is attempting to nullify, and declares those laws to be “invalid to this state.” Those provisions must be declared unconstitutional.

But what about the provisions of SAPA that apply to state law enforcement officers and that might be read as valid applications of the anti-commandeering doctrine?

The trial court that heard this case determined that they should be struck down as well. As that court noted, Missouri law provides that, when one part of a state law is declared unconstitutional, courts should ask whether “the remaining portions are in all respects complete and susceptible of constitutional enforcement,” and whether “‘the remaining statute is one that the legislature would have enacted if it had known that the rescinded portion was invalid,” to determine whether the rest of the law should fall.

According to that trial court, the statute’s unconstitutional provisions are so essential and “inseparably connected with” its other provisions that the whole edifice must fall. And there’s no good reason for the Supreme Court to disturb this holding, especially because the Supreme Court normally does not review a lower court’s interpretation of a state law — including Missouri’s law governing what should happen to the remaining parts of a statute — when one part of it is declared invalid.

That said, if Missouri’s legislature is truly committed to forbidding state law enforcement officers from enforcing federal gun laws, it could write a new statute tomorrow that does so without crossing the forbidden line into nullification. The state’s decision to invoke a discredited legal doctrine that is explicitly disavowed by the Constitution was simply bizarre, especially when the Supreme Court’s anti-commandeering doctrine gives state lawmakers a valid way to limit enforcement of federal laws.

It’s worth noting, moreover, that the anti-commandeering doctrine has historically been a favorite of conservative judges, with more left-leaning judges tending to view it with skepticism. Printz, for example, was a 5-4 decision authored by conservative Justice Antonin Scalia, with the Court’s four liberals in dissent.

That said, Printz, and the anti-commandeering doctrine it endorsed, proved to be a very important check on federal power during the final months of the Trump administration. In the summer of 2020, as then-President Donald Trump was headed to an electoral defeat against President Joe Biden, federal law enforcement officers used tear gas to break up a protest near the White House. The Trump administration also used unidentified federal officers to arrest, harass, and in some cases engage in violent confrontations with protesters in Portland, Oregon.

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But Trump’s ability to target his opposition with these sorts of tactics was severely curtailed by the fact that the federal government does not have command and control over the vast majority of law enforcement officers in the United States. Thanks to the anti-commandeering doctrine, Trump could not order state and local police to engage in a broader crackdown on his detractors and political opponents.

So, while this doctrine would permit Missouri to enact a new law barring state law enforcement officials from enforcing federal gun laws, it also proved to be a very important check against authoritarianism during one of the most alarming phases of the Trump administration.