Wednesday, March 30, 2022

Biden Administration Sues State of Missouri to Invalidate Gun Law (SAPA)


On February 16, 2022, the Biden Administration filed a lawsuit in the United States District Court for the Western District of Missouri, Central Division, claiming the Second Amendment Protection Act, (SAPA) was unconstitutional.

From the federal filing:

This lawsuit challenges a Missouri state statute that purports to invalidate federal firearm laws within the State. The Missouri law uniquely discriminates against federal agencies and employees; impairs law enforcement efforts in Missouri; and contravenes the Supremacy Clause of the United States Constitution.

The statute referred to was passed as HB 85 and 310. The bills specifically challenge federal power in several ways. The bills are a direct challenge to federal power to regulate and tax arms, as well as an anti-commandeering measure. From the bill:

(6) The people of the several states have given Congress the power "to regulate commerce with foreign nations, and among the several states", but "regulating commerce" does not include the power to limit citizens' right to keep and bear arms in defense of their families, neighbors, persons, or property nor to dictate what sorts of arms and accessories law-abiding Missourians may buy, sell, exchange, or otherwise possess within the borders of this state;

(7) The people of the several states have also granted Congress the powers "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States" and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution of the United States in the government of the United States, or in any department or office thereof". These constitutional provisions merely identify the means by which the federal government may execute its limited powers and shall not be construed to grant unlimited power because to do so would be to destroy the carefully constructed equilibrium between the federal and state governments. Consequently, the general assembly rejects any claim that the taxing and spending powers of Congress may be used to diminish in any way the right of the people to keep and bear arms;

The commerce clause and the taxing power are the basis by which the federal government claims the power to enforce most federal gun laws in the United States against individuals. The only federal gun laws before 1934 were measures to prohibit the sale of handguns through the federal postal service. As the postal service is specifically granted to the federal government by the Constitution, this was not challenged.

The Supreme Court ruled in the Miller decision, in 1939, that the Second Amendment might not apply to arms which were not related to use in a militia; the ruling was poorly worded, and far from conclusive. Lower courts, packed with Progressive judges by the FDR administration, simply ignored the Miller decision and held the federal government could regulate arms through the commerce clause and with taxation. From a previous article:

In Cases v. United States, 1942, a three-judge panel on the First Circuit ruled it was unlikely Miller meant military arms were protected by the Second Amendment: From Cases:

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

The judges did not want military arms protected, so they ruled they were not protected.

All three judges on the First Circuit in Cases v. United States, John Mahoney, Calvert Magruder, and Peter Woodbury, were appointed by FDR.

The Heller decision was the  first case about the Second Amendment heard by the Supreme Court since 1939. In the Heller decision, in 2008, the court implied the federal government had the Constitutional authority to regulate commercial sales of firearms. Then, with the McDonald decision in 2011, the Supreme Court held the restrictions of Second Amendment on the federal government applied to the states as well.

In order for the federal district court to find against the federal government, it would have to find the Heller decision wording about commercial sales to be invalid, which seems unlikely. The same applies to the federal Eighth Circuit Court of Appeals, in which Missouri is located. 

This is the first case this correspondent is aware of which directly challenges the federal government authority to use the commerce clause and the taxing power to avoid Second Amendment limitations, via the explicit limitation of power placed on the federal government by the Tenth Amendment. Both amendments specifically limit government power.  This challenge is not from a private individual, but directly from a sovereign state, which should grant it clear standing before the court.

To prevail, the case will have to go to the Supreme Court. This correspondent finds the arguments presented in HB 85 and 310 to be persuasive. The Tenth Amendment specifically limits federal power. The Second Amendment specifically limits government power. The concept that the federal government can avoid these limitations by evoking the commerce clause and taxing authority make a mockery of the checks and balances of the Constitution. The legislative history of the National Firearms Act is specific in that the taxing power was used, very intentionally, as a work around the limitations imposed by the Second Amendment and the Commerce Clause.

If the Tenth Amendment and the Second Amendment can be evaded simply by evoking the commerce clause and the taxing power, those amendments in the Bill of Rights are essentially rendered void. As both the Second and Tenth Amendments were ratified after the Constitution was ratified, it is clear they were meant as constraints on those powers. 

None of this means the District Court in Missouri or the Eighth Circuit will rule in favor of MIssouri. With several originalists and textualists on the Supreme Court, there is a chance the Supreme Court could rule in favor of Missouri.

The effect of such a ruling would be the limiting of federal gun laws, to those involving import and export, or, possibly, to commerce which actually crosses state lines. Thus, federal firearms licenses could remain in effect, but commerce inside a state would not require a federal firearms license. The National Firearms Act restrictions would only apply if those items were shipped across state lines.  In practice, most firearms and most NFA items are shipped across state lines. In practice the Supreme Court has held the commerce clause gives the federal government the power to regulate all commerce. Some justices on the Supreme Court disagree with this interpretation.

If the Supreme Court found the Missouri law to be constitutional, it would not roll back all power under the commerce clause, but only the power related to infringements on the Second Amendment.

The Missouri law contains a clear severability clause. If parts of the law are found to be unconstitutional, they do not render the entire law unconstitutional. It seems likely the anti-commandeering portions of the law would survive judicial review.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.


 


6 comments:

Anonymous said...

Was the state listening to me? Perhaps, as the set of people working in this area seems to be quite small!

This is the "Superseding Second" argument, perhaps for the first time in court. Was the 2nd written and added to the Constitution after the Commerce Clause? Clearly it was, so in any
case where the is conflict, the 2nd is superseding law, and all earlier parts of the Const.
that conflict with the 2nd are null and void. It may be possible for wheat used in local commerce to be taxed/regulated, but not so for arms. (The current Raisin Board cases cast
a long, long shadow on presumptions of Wickard.)

One can re-read the Congressional Record for the discussions about the NFA and see how very
thin are the current presumptions on firearms regulations are. The Feds themselves argued
then that they did not have the power to regulate firearms, just to tax them. They were
correct then.

Would anybody argue that, for example, the 13th amendment was invalidated by CRA '64 or
'68? Not likely. Then why argue the 2nd and 10th were changed by GCA '68? Oh yeah,
just for power hungry politicos.

Anonymous said...

First of all the bill of rights were ratified two ears after the constitution was ratified. the first ten amendments are the bill of rights. Amendments correct the constitution. That is the very reason Shall not be infringed was written in the second amendment. to correct the constitution. shall not be infringed is an all inclusive legal phrase. So the commerce clause has no effect. No state legislature and the U.S. Congress can not add words to define the second amendment further. the only legal way to change the wording in an amendment ratified , now by at least 37 states. A little control cant hurt is not what was ratified, shall not be infringed is the wording that was ratified. no state and no congress has the authority to ad or ignore the ratified words. From the `1934 NFA to the last GCA are in fact of constitutional law all void. there are no valid state gun control laws. no state has the authority to write infringing laws for gun control. Wake up to the legal facts. you can not be required to have a permit to exercise any federally guaranteed right. do you have your permit to speak, go to church or a right to a fair trial? how about the way search warrants are being abused. Fact only what is written in the warrant can be searched. they need a warrant to open a desk drawer. believe me I have had to challenge warrants before. And I know I am correct. what ever is in plain sight can be taken if it is listed in the written warrant. Check the number of laws concerning search warrants state to state and see how they vary.

Anonymous said...

Any law that ads words to the 26 words of the second amendment, like age requirements , or permits is by definition an amendment and only the people can amend the constitution with a ratified amendment. nothing can be added or ignored. Period. liberals always ignore any limitation on their authority if it interferes with their plan for total government control.

Anonymous said...

Read these words carefully SECOD AMEDMENT SHALL NOT BE INFRINGED . THOSE WORDS CGANGE EVERYTHING PRIOR.. THE SECOND AMENDMENT IS BOT SUBJECT TO THE COMERCE CLAUSE that is not just firearms anything related to self defense is covered Infringe is a word that means all inclusive,

Anonymous said...

This article seems to have fired up some thought so let us try to be very correct. No, they do not have the authority to tax any thing related to ARMS. let us frame the facts correctly. Presumptions in fact are not permitted Anything not physically written can not be construed to exist and that is a supreme court ruling. presumptions are what construing is. Only the words written were ratified and only the words ratified have the power of enforcement and must be enforced. The words written and ratified were chosen for their exact meaning at the time they were written. Over time the English language has changed the meaning of numerous words. The word ratified is very specific. how would you accept changes to an automobile purchase contract after you signed it. say the dealer decided to change the interest rate to double what you agreed to and signed? The constitution is a contract between the people and the government that constitution created. and it can not be changed just because the government wants something different, like the greedy car dealer. There is a car dealer in Yuma I bought a new Jeep from. I sprcial ordered it. I paid for special off road tires. when it was delivered it had regular street tires on it. I complained and they asked to see my copy of the sales contract. they brought the contract back to me and said no that tire charge is for the tires it came with. and refused to put the off road tires on it. I said I have never been charged extra for the tires it came with. I went home to think about it. when I got home I took the contract out og the envelope to look at it. The dealer removed that page of the contract before handing it back to me. they just lost a customer, FOREVER.

Anonymous said...

It always seemed telling that most anti-2A action has to lean so heavily on the commerce clause since they don't really have a valid 2A argument.