The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Over the last year, several red states - in a trend begun by Montana - have adopted "gun sanctuary" laws that are in many ways modeled on immigration sanctuary policies previously enacted by liberal cities and states. Just as liberal immigration sanctuary jurisdictions restrict their employees' cooperation with federal efforts to enforce immigration restrictions, so conservative gun sanctuaries similarly limit state and local assistance to federal agencies enforcing federal gun laws.
One reason why conservative states have copied liberals' sanctuary policies is that the latter repeatedly prevailed in court against various Trump Administration attacks on them. I went over those cases in detail in a 2019 Texas Law Review article, and a piece for the Washington Post. Courts rightly ruled that the Constitution allows states to bar their officials from helping to enforce federal law.
Perhaps because of this history, the Biden Administration at first wisely left the conservative gun sanctuaries alone. This week, however, the Justice Department filed a dubious lawsuit challenging H.B. 85, the Missouri "Second Amendment Preservation Act." The suit is reminiscent of the Trump Administration's challenge to the California's "Sanctuary State" law, which was largely rejected by the courts. The new Biden lawsuit deserves to lose for the same reason.
Reason's Elizabeth Nolan Brown has a helpful overview of the Missouri law and the Justice Department lawsuit against it:
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.
Another provision of the law bars any state or local agency from employing people who had previously helped enforce the federal gun laws in question, and imposes civil liability of up to $50,000 "per employee hired by the political subdivision or law enforcement agency."
The complaint filed by the Justice Department concedes that "a state may lawfully decline to assist with federal enforcement." Indeed! The federal government may not "commandeer" state officials to help enforce federal law. That is the longstanding constitutional principle that led to the failure of Trump's challenge to the California sanctuary state law.
As the Ninth Circuit explained in its ruling in that case, the state sanctuary law "may well frustrate the federal government's immigration enforcement efforts. However, whatever the wisdom of the underlying policy adopted by California, that frustration is permissible, because California has the right, pursuant to the anticommandeering rule, to refrain from assisting with federal efforts."
Similarly, the Biden Justice Department complains that federal gun law enforcement efforts in Missouri have been hampered by H.B. 85 because "the Missouri State Highway Patrol has implemented H.B. 85 by withdrawing personnel from federal task forces and restricting the information that can be shared with federal authorities in connection with federal firearm offenses." Restricting assistance and information-sharing by state law enforcement agencies is exactly what California did, and courts rightly ruled that such policies are protected by the anti-commandeering principle. What's good for the liberal goose applies equally to the conservative gander!
The Biden DOJ tries to sidestep the anti-commandeering rule by claiming that H.B. 85 goes beyond merely denying assistance: "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."
Such accusations of "nullification" were also advanced by then-Trump Attorney General Jeff Sessions in the California case. Perhaps Biden AG Merrick Garland could save time and money by recycling Sessions' old briefs and press releases!
The nullification accusations were wrong then, and are equally wrong now. I explain why here, in a post about the Montana gun sanctuary law:
As understood by John C.Calhoun and others who sought to use nullification to protect slavery and other southern state interests in the 19th century, the term meant that the federal laws in question were null and void in their states. If the theory was correct, neither state nor federal authorities would have any right to enforce them. By contrast, liberal immigration sanctuaries and conservative gun sanctuaries are merely preventing their own state and local law enforcement agencies from helping the federal government enforce the laws in question. But the laws remain binding, and the federal government can still use its own resources to pursue violators. For example, federal ICE agents can still pursue undocumented immigrants in immigration sanctuaries, and federal ATF agents can still pursue people who violate federal gun laws in Montana.
Nothing in H.B. 85 prevents the federal government from using its own officials and resources to investigate and prosecute suspected violators of federal gun laws in Missouri. It's true that HB 85 asserts that several types of federal gun laws violate the Constitution. But the law doesn't instruct state officials to impede federal law enforcement efforts in any way, merely to refuse to assist them. More specifically, the law says that the five categories of federal gun regulations in question "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" (emphasis added). All of this simply imposes constraints on what the state government does, not federal officials.
The closest the Missouri law comes to actually restricting federal officials is in a provision that says "No entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms as described under section 1.420." Read in the context of the rest of the law (which focuses entirely on the operations of state and local governments), I think this language should be interpreted as constraining state and local officials. But even if "[n]o entity or person" encompasses federal officials, the fact remains that nothing in the act in any way penalizes or obstructs federal employees seeking to enforce the laws in question.
Like the statement that some types of federal gun laws violate the Constitution, any restriction on federal employees here is purely aspirational. H.B. 85 doesn't actually constrain them in any meaningful way. That said, a federal court could potentially rule that the "no entity or person" language is unconstitutional in so far as it applies to federal officials, while otherwise upholding H.B. 85. Such a ruling would make no practical difference to the operation of the law, but might relieve anxieties about "nullification."
Finally, the Justice Department claims that the H.B. 85 provision barring state and local governments from hiring people who previously participated in the enforcement of the types of federal gun laws listed in the Act violates the doctrine of "intergovernmental immunity," which which bars states from "discriminating" against the federal government or "those with whom it deals."
This issue, too, came up in the California sanctuary state case. The Ninth Circuit ruled that intergovernmental immunity does not forbid a part of the California law that requires employers to notify workers of potential ICE raids:
The Supreme Court has clarified that a state "does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them." Washington, 460 U.S. at 544–45. AB 450 does not treat the federal government worse than anyone else; indeed, it does not regulate federal operations at all. Accordingly, the district court correctly concluded that AB 450's employee-notice provisions do not violate the doctrine of intergovernmental immunity.
The same reasoning applies here. The hiring-restriction provision of H.B. 85 also "does not regulate federal operations at all." All it does is restrict state and local governments from hiring certain types of former federal employees and private parties who assisted in enforcing the federal laws in question. There is no discrimination impeding the actual performance of federal employees' jobs. Indeed, any discrimination only occurs with respect to careers the latter may want to pursue after leaving federal employment.
I would add that, as in the California case, the concept of "discrimination" is only relevant in situations where the state treats the federal government and its agents worse than other similarly situated actors, simply because the former are employed by the federal government. As in the case of the ICE operations affected by the California law, there is no meaningful private-sector analogue to federal enforcement of gun laws, and thus no possible state discrimination against the feds.
However, I recognize that the district court ruling in the California case went the other way on this specific issue (I critiqued its reasoning here). Regardless, the court hearing the Missouri case need not even reach this question, because the Missouri law - unlike the relevant provision of the California one - doesn't even target actual federal law enforcement operations: it merely restricts state and local government hiring of people who previously participated in them.
As with Trump-era efforts to attack immigration sanctuaries, the Missouri case has broader implications that go well beyond the specific laws at issue. If the Justice Department can force Missouri to assist federal gun law enforcement, it can commandeer states and localities for other purposes, as well. And if Missouri is not allowed to refuse to hire former federal gun-law enforcers, other states will not be able to bar former federal employees whose law-enforcement activities they find abhorrent. Imagine, for example, a liberal state that refuses to hire former Department of Homeland Security employees complicit in the Trump Administration's cruel immigration enforcement policies, such as child separation.
It is worth emphasizing that all of the points made above apply regardless of whether the federal gun laws listed in H.B. 85 violate the Second Amendment or not. Even if these laws are entirely constitutional, so far as the Second Amendment is concerned, the federal government still can't commandeer states to help enforce them.
In sum, the Biden lawsuit against Missouri is just as ill-conceived as various Trump administration suits against blue immigration sanctuaries, and deserves to fail for the same reasons. Liberals who (rightly, in my view) supported immigration sanctuaries should think about what might happen to them in the next Republican administration, should the Biden DOJ prevail in the Missouri case.
UPDATE: On Twitter, law professor Jamie Fox points out that the HB 85 arguably prohibits state courts from helping to enforce the federal gun laws in question. If so, that aspect of the law might indeed be unconstitutional, because Supreme Court precedent exempts state courts from the anti-commandeering rule. Fox makes a good point that deserves serious consideration.
Whether state courts are covered by HB 85 is far from entirely clear. Section 1.450 of the statute says that "No entity or person, including any public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms as described under section 1.420." The phrase "No entity or person, including any public officer or employee of this state" seems broad enough to include state judges.
On the other hand, the liability provisions of the law (which allow lawsuits to enforce it) only covers "political subdivision[s] or law enforcement agenc[ies]," neither of which includes courts. Read in the context of the rest of the statute, 1.450 could also be interpreted as only applying to executive branch employees, and employees of local governments.
In addition, the power denied by 1.450 is "the authority to enforce or attempt to enforce" any of the federal laws in question. In legal parlance, "enforcement" is generally seen as an executive function, not that of the courts. The latter do assist in enforcement by adjudicating cases related to it. But they are not, technically, law enforcement officials, as such. An admittedly quick and nonexhaustive search of the Westlaw database of Missouri state court decisions shows that Missouri courts routinely refer to "courts" and "law enforcement" as distinct entities. A limitation of "enforcement" authority therefore may not be considered as a limitation of judicial power.
Section 1.440 of the act does address courts directly, saying that "[i]t shall be the duty of the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and to protect these rights from the infringements defined under section 1.420." This can be seen as potentially denying courts the power to hear cases enforcing the federal laws in question. However, a statement that a given government official has a "duty" to pursue objective X is not an unlimited grant of power to do anything and everything that might promote the goal in question. It does not, by it self, authorize actions that violate the federal Constitution or other binding state and federal laws. For example, if a state judge or law enforcement official decides that the goals of Section 1.440 can be advanced by killing gun-control advocates (thereby making it less likely that new gun control laws will be enacted), that does not mean he or she is authorized to commit murder!
Moreover, by listing "the courts" and "law enforcement agencies" separately, the Section 1.440 suggests that these are two distinct entities. That reinforces the notion that the Section 1.430's constraints on "the authority to enforce or attempt to enforce" do not apply to the consideration of cases by courts (which, on this view, is not a "law enforcement" function).
In sum, both sides have plausible arguments on the question of whether HB 85 bars state courts from hearing cases arising from federal attempts to enforce the federal gun laws covered by the act. But it's important to remember that Missouri courts, like federal courts, follow a strong doctrine of "constitutional avoidance," which requires state laws to be interpreted in ways that avoid violating the Constitution, if at all possible. For example, the Missouri Supreme Court has ruled that "[i]t is a well accepted canon of statutory construction that if one interpretation of a statute results in the statute being constitutional while another interpretation would cause it to be unconstitutional, the constitutional interpretation is presumed to have been intended."
Thus, if the application of HB 85 to state courts is a close question (which I think it pretty obviously is), judges must interpret the law in a way that avoids rendering it unconstitutional. And when it comes to interpretations of state law, federal courts follow the interpretive principles of the courts of the state whose law it is.
If the federal court nonetheless concludes that HB 85 does apply to state courts, it could easily rule it to be unconstitutional in that context, while upholding the law's vastly more important constraints on state and local executive authority and law enforcement agencies. The law includes a broad severability clause (Section 1.485) indicating that if any provision or "application" of HB 85 is held "invalid," the rest will remain in force. As a practical matter, it is unlikely that federal officials would bring enforcement actions for these laws in Missouri state courts, as opposed to federal courts.