The Biden Administration Sues Over Missouri's Pro–Second Amendment Law
Plus: An antitrust lawsuit against Juul was dismissed, the EARN IT Act's sponsor has a new proposal, and more...
The 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 Wednesday 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.
FREE MINDS
A Texas-style abortion law is advancing in Idaho. "The bill, SB 1309, would authorize the father, aunt, uncle, grandparent, or sibling of a fetus aborted after [fetal cardiac activity can be detected] to file a civil lawsuit against the doctor at any time up to four years after the abortion, and get $20,000 minimum damages plus attorney fees. It has no other enforcement mechanism," reports Boise's KTVB.
"It's unconstitutional on its face," state Sen. Grant Burgoyne (D–Boise) said. "I think that the state of Idaho is in for another rough ride on…abortion litigation, and an expensive ride, and an unconstitutional ride." The bill passed out of a Senate committee on Wednesday.
"Ken McClure, a lobbyist for the Idaho Medical Association, testified at length about legal problems his association sees in the bill, including authorizing repeated lawsuits with minimum damages over the same abortion while forbidding doctors from being awarded attorney fees if they've complied with the law and win the lawsuits," notes KTVB.
FREE MARKETS
Juul antitrust lawsuit dismissed. The Federal Trade Commission's attempt to end a partnership between tobacco company Altria and vaping company Juul has fizzled…for now. "An administrative law judge has dismissed a federal lawsuit alleging the company's partnership with e-cigarette maker Juul Labs amounted to an anticompetitive agreement that hurt consumers," ABC News reports.
The preliminary decision by the agency judge is subject to review by the Federal Trade Commission and will likely be appealed. The judge's ruling was not immediately available at the time of Altria's announcement. The company, whose brands include Marlboro cigarettes and Copenhagen smokeless tobacco, said it is expected to be posted online later this month.
FOLLOWUPS
Ottawa police warn truckers. The Ottawa Police Service on Wednesday handed out written warnings to "Freedom Convoy" protesters in an apparent final attempt to avoid more extreme measures. "You must leave the area now. Anyone blocking streets, or assisting others in the blocking streets, are committing a criminal offence and you may be arrested," the notice said. "You must immediately cease further unlawful activity or you will face charges."
More criticism of the EARN IT Act (plus more tech regulation from its sponsor). "It probably won't save any children, but it might mean the end of encrypted messaging," writes J.D. Tuccille here at Reason:
Governments have never liked it when their subjects keep secrets from them and they really don't like encryption technology, which makes it easier for people to conceal their messages from prying eyes. But the public hasn't been buying the eavesdropping that politicians are selling. So, the powers-that-be moved on to claiming that they're concerned about protecting the children and just incidentally restricting the use of techniques for protecting privacy. The EARN IT Act is the latest effort to invade our communications, and its advocates occasionally let the mask slip.
Techdirt covers how the measure could "give abusers a get out of jail free card":
Under the current setup, companies can search for child sexual abuse material (CSAM) and if they find it they must report it to NCMEC (and remove it). This is good and useful and helps prevent the further spread. But under the 4th Amendment, if the government is mandating a search, then it would require a warrant before the search can happen. So, if the government mandates the search -- and as various senators made clear in both their "myths and facts" document, and in the markup hearing, that's exactly what they intend this bill to do -- then anyone who is charged with evidence found via such a search would have an unfortunately strong response that the evidence was collected under state action, and, as such in order to survive a 4th Amendment review, would require a warrant.
In other words, it hands terrible criminals -- those involved in the abuse of children -- a way to suppress the evidence used against them on 4th Amendment grounds. Under such a regime that would make it more difficult to prosecute actual criminals. But, even worse, it would then create a perverse and dangerous precedent in which companies would be greatly encouraged not to use basic scanning tools to find, remove, and report [child pornography], because in doing so, it would no longer be usable in prosecutions.
On Wednesday, EARN IT Act sponsor Sen. Richard Blumenthal (D–Conn.) announced another piece of burdensome and overreaching tech regulation that's ostensibly made "to protect the safety of children on the internet."
Among other things, the "sweeping bill" would "demand that companies create tools to allow parents to track how much time their kids spend on a service, or to opt out of features such as autoplay that might extend time online," notes The Washington Post. "Companies would also have to offer parents and minors the ability to modify tech companies' recommendation algorithms, allowing them to limit or ban certain types of content."
QUICK HITS
this is bonkers. https://t.co/bDXxJUYiT3
— Nick Hennen (@nicksologist) February 9, 2022
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• The sex worker–friendly social media platform Switter is shutting down. "The recent anti-sex work and anti-LGBTQIA+ legislative changes not only in Australia, but in the UK, US and other jurisdictions have made it impossible for us to appropriately and ethically maintain compliance for over 430,000+ users on a social media platform," its founders said in a statement.
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• The Institute for Justice has launched a lawsuit over a shuttered home day care. More on the story, from Reason's Christian Britschgi, here.
Bianca is a single mom with 2 young kids. Until recently she was earning a living running a small, 2-4 kid, daycare out of her home.
But city officials shut her down—citing concerns of nearby golfers that they could *hear* & *see* children in her backyard.https://t.co/jTikZpT3dN— Institute for Justice (@IJ) February 16, 2022
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• How hate speech laws punish minorities.
• A report finds former Interior Secretary Ryan Zinke broke federal ethics rules.
• "The New Hampshire House of Representatives on Wednesday approved a bill to legalize marijuana through a state-run model. But pro-legalization advocates are sounding the alarm about the specifics of the proposal," reports Marijuana Moment.
• RIP, P.J. O'Rourke.
