Missouri Governor Can’t Void Federal Gun Laws
BY Herschel Smith
2 years, 10 months ago
So says the Missouri Justice Department.
The Justice Department is warning Missouri officials that the state can’t ignore federal law, after the governor signed a bill last week that bans police from enforcing federal gun rules.
In a letter sent Wednesday night and obtained by The Associated Press, Justice officials said the U.S. Constitution’s Supremacy Clause outweighs the measure that Gov. Mike Parson signed into law Saturday. The new rules penalize local police departments if their officers enforce federal gun laws.
Acting Assistant Attorney General Brian Boynton said the law threatens to disrupt the working relationship between federal and local authorities, they said in the letter, noting that Missouri receives federal grants and technical assistance.
“The public safety of the people of the United States and citizens of Missouri is paramount,” Boynton wrote in the letter.
So let me explain how you know someone knows his own argument to be weak. They use multiple leaky buckets to try to stem the leaks. That’s what the acting AG has done here.
First of all, he says simply that you can’t do this, just because. Federal vs. state, and they win. But he knows that the state can indeed do this, and the intestinal fortitude will dictate the outcome. If the governor sends the state police to arrest any agent of the FedGov who tries to enforce federal laws, then he wins. It doesn’t even appear this bill goes that far – it just prevents agents of the state from enforcing federal laws.
Second, since he knows he loses the first argument, he throws in working relationships and – you guessed it, money. We don’t want to lose FedGov money. That’s the real reason, you see, he’s so scared. Loss of money.
Third, since he knows that he loses the first and second arguments (if liberty is more important than money), he throws the final plea out there. Consider public safety, which is of course none of his business. That’s the business of the law makers and governor.
Since he loses on all three accounts, the people of Missouri may safely ignore him. His staff can’t even craft a letter without giving their hand away.
On June 17, 2021 at 2:31 am, Rick said:
Well written, with many implications worthy of consideration. Per chance, have you sent the same to the offices above named? You should.
On June 17, 2021 at 4:45 am, Ralph said:
FYI…Brian Boynton is the Acting Assistant Attorney General for the Civil Division at U.S. Department of Justice not the State of Missouri justice department. Otherwise an excellent article as usual.
On June 17, 2021 at 6:46 am, Nosmo said:
IIRC, there’s at least one SCOTUS ruling stipulating that local and state officials cannot be required to perform federal functions, including enforcement.
And, as for the money angle, the feds have long – very long – held their checkbook over the heads of local and especially, state governments, witholding federal highway funds being a favorite gambit.
Not all states are productive, or efficient enough, to be “donor” states to the federal treasury, many receive more from D.C. than they send, but there are enough that should they decide to simply keep the funds within their borders they would be better off financially than sending dollars to D.C. to get nickels and dimes back.
It’ll never happen there again, but in the early ’80s a measure was introduced in the Colorado legislature to cease sending all fuel tax monies to Washington and keep them in Colorado because Colorado was sending dollars and getting pennies back. AFAIK, never got the the floor for a vote, and all those firebreathing legislators have long since been replaced by solidly Blue Bunnies, but the idea is sound.
A geographic coalition of states, a few with very positive cash flows could create a “mutually advantageous sharing alliance” with their surplus-less neighbors and just keep money in house. Instead of their citizens sending their income tax payments to D.C.they go to the state treasury, as would all other federal taxes collected, with the state legislature(s) deciding how much of what Washington does is worth how many dollars from that state, or the coalition.
I’m thinking that in fairly short order it might even become multiple groups of states, creating a 50-state “mutually advantageous sharing alliance.”
As for what happens to Washington, maybe Disney would be interested in building a new theme park; perhaps a “mutually advantageous sharing coalition” between Disney, Universal, 7 Flags, Dollywood, the Smithsonian Institution, etc. could be formed (Washington already has a subway system that could form the foundation for transportation between venues). And, there are lots of restaurants already and a number of buildings ready for conversion into hotel rooms that have nice views overlooking the Potomac.
On June 17, 2021 at 9:46 am, Frank Clarke said:
@Ralph: Correct. “He (Boynton) asked that [MO Gov.] Parson and Eric Schmitt, the state’s attorney general, clarify the law and how it would work in a response by Friday.”
Piece-o’-cake: “Dear Mr. Boynton, Your agents have to do all their own work. Sheriff’s deputies may be present to ensure Missouri law isn’t violated. Have a nice day… somewhere else.”
On June 17, 2021 at 9:50 am, Frank Clarke said:
@Nosmo: I –like– the way you think!
http://dispatchesfromheck.blogspot.com/2017/08/calexit.html
On June 17, 2021 at 10:30 am, Bradlley A Graham said:
‘ Lex Iniusta Non Est Lex “….
Will is the decisive element. With it a fight can begin with a rock or a piece of wood. Without it, an atom bomb will not suffice. There is no try.
On June 17, 2021 at 1:21 pm, scott s. said:
Nosmo — I think they tried that and President Washington personally led an army to enforce the tax laws.
On June 17, 2021 at 1:28 pm, MTHead said:
If state employees have to enforce federal law. Can they arrest federal employees for aiding and abetting illegal border crossers? 8USC 1324 anyone?
So from now on. If a local cop askes you about your suppressor. You can tell him about all the federal crimes you’ve witnessed. starting with the local banker and moving through most of the political class in America?
I don’t think the feds really want locals enforcing their regulations.
On June 17, 2021 at 9:31 pm, Ozark Redneck said:
You guys nailed it, it is all about the federal money hanging over the state’s head. If there could be a way to send your tax $ to the state first and have them pass it to the feds, it would be a game changer… This looks nice on paper and glad they did it, but want to see it in action before I am happy.
On June 17, 2021 at 10:54 pm, X said:
Funny how they’re all good with defying Federal laws on weed and illegal immigration… but by God, when it comes to Federal GUN laws, they’re gonna slap the cuffs on you lickety-split, boy.
On June 18, 2021 at 7:17 am, Matt said:
If several states started refusing to fund Uncle and the income tax collecting entities likewise stopped, a lot of things will change right quick. Uncle can and does print money out of ether, which is how it maintains perpetual massive deficit spending. Withhold the taxes and that is simply what they will do. It will simply hasten the Weimar effect were starting to see already.
On June 18, 2021 at 10:21 am, Sisu said:
Missouri leads. Hooray for the current Governor and Attorney General.
https://redstate.com/smoosieq/2021/06/17/missouri-fires-back-at-doj-over-second-amendment-preservation-act-doesnt-blink-n398380
https://ago.mo.gov/home/news/2021/06/17/attorney-general-schmitt-governor-parson-send-letter-to-biden-doj-fighting-federal-encroachment-on-missourians-second-amendment-rights
https://ago.mo.gov/docs/default-source/press-releases/2021-6-17-ltr-boynton.pdf?sfvrsn=ae1b68e_2
On June 18, 2021 at 4:15 pm, Ron W said:
According to the plain wording of the 10th Amendment, the Federal Government may lawfully do NOTHING without enumerated delegated powers. There are NO delegated powers in the Constitution for gun laws pertaining to the People. Therefore ALL federal gun laws which affect the People are null, void and unlawful!
“All laws which are repugnant to the Constitution are null and void.” ―First U.S. Supreme Court Chief Justice, John Marshall, Marbury v. Madison (5US137, 176; 1803)
The right to armed self defense is a clearly enumerated right pre-existing as God-given. It cannot be violated or infringed even by Congressional legislation as SCOTUS has so ruled:
“Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” ― Miranda v. Arizona (384US436,1966)
On June 22, 2021 at 9:49 pm, Hudson H Luce said:
It’s great to talk about the Second Amendment and to look to the simple language therein, but that’s not necessarily the way the Federal Government and the courts see it. Right now, here’s the Second Amendment as it is in real life: https://constitution.congress.gov/browse/essay/amdt2-1/ALDE_00000408/
Same case for the Tenth Amendment: “Tenth Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Later indications were that the Court may have been looking for ways to back off from Garcia. One device was to apply a clear statement rule requiring unambiguous statement of congressional intent to displace state authority. After noting the serious constitutional issues that would be raised by interpreting the Age Discrimination in Employment Act to apply to appointed state judges, the Court in Gregory v. Ashcroft[1] explained that, because Garcia constrained consideration of the limits that the state-federal balance places on Congress’s powers, a plain statement rule was all the more necessary. [I]nasmuch as this Court in Garcia has left primarily to the political process the protection of the States against intrusive exercises of Congress’s Commerce Clause powers, we must be absolutely certain that Congress intended such an exercise.[2]
The Court’s 1992 decision in New York v. United States[3] may portend a more direct retreat from Garcia. The holding in New York, that Congress may not commandeer state regulatory processes by ordering states to enact or administer a federal regulatory program, applied a limitation on congressional power previously recognized in dictum[4] and in no way inconsistent with the holding in Garcia. Language in the opinion, however, seems more reminiscent of National League of Cities than of Garcia. First, the Court’s opinion by Justice O’Connor declares that it makes no difference whether federalism constraints derive from limitations inherent in the Tenth Amendment, or instead from the absence of power delegated to Congress under Article I; the Tenth Amendment thus directs us to determine . . . whether an incident of state sovereignty is protected by a limitation on an Article I power.[5] Second, the Court, without reference to Garcia, thoroughly repudiated Garcia’s structural approach requiring states to look primarily to the political processes for protection. In rejecting arguments that New York’s sovereignty could not have been infringed because its representatives had participated in developing the compromise legislation and had consented to its enactment, the Court declared that [t]he Constitution does not protect the sovereignty of States for the benefit of the States or State governments, [but instead] for the protection of individuals. Consequently, State officials cannot consent to the enlargement of the powers of Congress beyond those enumerated in the Constitution.[6] The stage appears to be set, therefore, for some relaxation of Garcia’s obstacles to federalism-based challenges to legislation enacted pursuant to the commerce power.
Extending the principle applied in New York, the Court in Printz v. United States[7] held that Congress may not circumvent the prohibition on commandeering a state’s regulatory processes by conscripting the State’s officers directly.[8] Printz struck down interim provisions of the Brady Handgun Violence Protection Act that required state and local law enforcement officers to conduct background checks on prospective handgun purchasers. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers . . . to administer or enforce a federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.[9]
In Reno v. Condon,[10] the Court distinguished New York and Printz in upholding the Driver’s Privacy Protection Act of 1994 (DPPA), a federal law that restricts the disclosure and resale of personal information contained in the records of state motor vehicles departments. The Court returned to a principle articulated in South Carolina v. Baker that distinguishes between laws that improperly seek to control the manner in which states regulate private parties, and those that merely regulate state activities directly.[11] Here, the Court found that the DPPA does not require the States in their sovereign capacities to regulate their own citizens, but rather regulates the States as the owners of databases.[12] The Court saw no need to decide whether a federal law may regulate the states exclusively, because the DPPA is a law of general applicability that regulates private resellers of information as well as states.[13]
The Court’s most recent consideration of the anti-commandeering principle occurred in 2018 in Murphy v. NCAA.[14] In Murphy, Justice Alito, writing on behalf of the Court, invalidated on anti-commandeering grounds a provision in the Professional and Amateur Sports Protection Act (PASPA) that prohibited states from authorizing sports gambling schemes.[15] Noting the rule from New York and Printz that Congress lacks the power to issue orders directly to the States,[16] the Court concluded that PASPA’s prohibition of state authorization of sports gambling violated the anti-commandeering rule by putting state legislatures under the direct control of Congress.[17] In so concluding, Justice Alito rejected the argument that the anti-commandeering doctrine only applies to affirmative congressional commands, as opposed to when Congress prohibits certain state action.[18] Finding the distinction between affirmative requirements and prohibitions empty, the Court held that both types of commands equally intrude on state sovereign interests.[19]
In holding that Congress cannot command a state legislature to refrain from enacting a law, the Murphy Court reconciled its holding with two related doctrines.[20] First, the Court noted that while cases like Garcia and Baker, and Condon establish that the anti-commandeering doctrine does not apply when Congress evenhandedly regulates activity in which both States and private actors engage,[21] PASPA’s anti-authorization provision was, in contrast, solely directed at the activities of state legislatures.[22] Second, the Court rejected the argument that PASPA constituted a valid preemption provision under the Supremacy Clause.[23] While acknowledging that the language used by Congress and this Court with respect to preemption is sometimes imprecise,[24] Justice Alito viewed every form of preemption to be based on a federal law that regulates the conduct of private actors—either by directly regulating private entities or by conferring a federal right to be free from state regulation.[25] In contrast, PASPA’s anti-authorization provision did not confer any federal rights on private actors interested in conducting sports gambling operations or impose any federal restrictions on private actors.[26] As a result, the Murphy Court viewed the challenged provision to be a direct command to the states in violation of the anti-commandeering rule.[27]” https://constitution.congress.gov/browse/essay/amdt10-2-4-1/ALDE_00000982/
and:
“In 1995, the Court in United States v. Lopez[1] struck down a statute prohibiting possession of a gun at or near a school, rejecting an argument that possession of firearms in school zones can be punished under the Commerce Clause because it impairs the functioning of the national economy. Acceptance of this rationale, the Court said, would eliminate a[ny] distinction between what is truly national and what is truly local, would convert Congress’s commerce power into a general police power of the sort retained by the States, and would undermine the first principle that the Federal Government is one of enumerated and limited powers.[2] Application of the same principle led five years later to the Court’s decision in United States v. Morrison[3] invalidating a provision of the Violence Against Women Act (VAWA) that created a federal cause of action for victims of gender-motivated violence. Congress may not regulate non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce, the Court concluded. [W]e can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims.[4]” https://constitution.congress.gov/browse/essay/amdt10-2-4-2/ALDE_00000983/