The Biden Administration Sues Over Missouri’s Pro–Second Amendment Law

The U.S. Justice Department is challenging a Missouri law that lets people sue law enforcement for gun rights violations. Under Missouri’s “Second Amendment Preservation Act,” Missouri law enforcement is barred from enforcing certain federal gun control measures—and people can sue police who do.

The law (H.B. 85), passed in 2021, has now earned the ire of the Biden administration. “A state cannot simply declare federal laws invalid,” said Principal Deputy Assistant Attorney General Brian M. Boynton.

H.B. 85 says that Missouri rejects several categories of federal gun provisions, which it considers to be “infringements on the people’s right to keep and bear arms.” These provisions include “any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services,” “any registration or tracking of firearms, firearm accessories, or ammunition” or the ownership of them, “any act forbidding the possession, ownership, use, or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens,” and “any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.”

H.B. 85 orders state and local law enforcement not to cooperate with the feds to enforce such measures and says Missourians can sue if they do.

“HB 85 puts those in Washington D.C. on notice that here in Missouri we support responsible, law-abiding gun owners, and that we oppose government overreach and any unlawful efforts to limit our access to firearms,” said Missouri Gov. Michael L. Parson in a statement last summer.

Since H.B. 85 was enacted, “dozens of state and local officers have resigned from federal joint-task forces” to enforce federal gun laws, according to the Department of Justice (DOJ).

“This act impedes criminal law enforcement operations in Missouri,” alleged Attorney General Merrick B. Garland in a February 16 statement.

Which is, of course, the whole point—Missouri thinks that some federal firearms laws may violate the Second Amendment and doesn’t wish to help enforce them. The feds, however, say this opting out isn’t allowed.

In its new complaint, the DOJ argues that H.B. 85 is preempted by federal law and violates the Supremacy Clause of the U.S. Constitution (which says that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”). It also suggests that the law discriminates against federal employees involved in gun control schemes by declaring them disqualified from future employment with “any political subdivision or law enforcement agency” in Missouri.

“Although a state may lawfully decline to assist with federal enforcement…a state may not directly regulate federal authority. H.B. 85 does exactly that by purporting to nullify, interfere with, and discriminate against federal law,” the DOJ argues, confusingly.

It’s asking the court to prohibit enforcement of H.B. 85 and clarify that Missouri cops can lawfully participate in investigating and enforcing measures that it says are not “infringements” but “well-established federal requirements for the registration and tracking of firearms and limitations on the possession of firearms by certain persons.”

The DOJ “seeks to attack Missourians’ Second Amendment rights,” said Missouri Attorney General Eric Schmitt in response. “Make no mistake, the law is on our side in this case, and I intend to beat the Biden Administration in court.”

Supporters of H.B. 85 “have argued that the new law is constitutional and does not prohibit federal agents from operating in Missouri,” notes The New York Times.

The Times‘ language is a little weird here, couching this as simply an argument by supporters instead of a fact: It does not prohibit federal agents from enforcing federal laws in Missouri, it merely prescribes what Missouri law enforcement can do.

The Missouri law “is part of a broader movement to resist federal gun control,” reported Reason‘s Jacob Sullum last summer. He points out that the legal arguments used to support H.B. 85 are the same as those used to support sanctuary cities and rely on “the well-established anti-commandeering doctrine, which says the federal government cannot compel state and local officials to enforce its criminal laws or regulatory schemes.”

Sullum also noted at the time that the immediate impact of H.B. 85 would likely be small:

“The restrictions do not apply to federal firearm offenses that are also crimes under Missouri law, and currently there is not much difference between those categories.

“The main point of the law, according to its sponsors, is proactive. Should Congress pass the gun controls that President Joe Biden favors, such as a ban on the manufacture and unregistered possession of “assault weapons,” Missouri officials will be prohibited from assisting in their enforcement.”

Originally published by the Reason Foundation. Republished with permission.