The Volokh Conspiracy
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Federal Court Issues Flawed Decision Striking Down Missouri Gun Sanctuary Law
The ruling has significant shortcomings and may be overruled on appeal. The Biden Administration's position in this litigation is wrong for much the same reasons as the Trump Administration was wrong to target immigration sanctuaries.
On Tuesday, federal district court Judge Brian Wimes issued an important ruling striking down Missouri's Second Amendment Protection Act (SAPA). SAPA is a "gun sanctuary" law that restricts state and law-enforcement cooperation with efforts to enforce federal gun control laws.
Gun sanctuary laws enacted by red states are in large part modeled on immigration sanctuary laws enacted by numerous blue states and localities, in order to limit state cooperation with enforcement of federal immigration laws. During the Trump Administration, the federal government lost numerous lawsuits challenging the legality of immigration sanctuaries (I went over those cases in detail in a Texas Law Review article, and a piece for the Washington Post). Imitation is the sincerest form of flattery, and several red states have decided to imitate the blue states' success. Courts - including both liberal and conservative judges - were right to rule in favor of immigration sanctuaries, and Judge Wimes should have applied the same principles in the gun context, as well.
Judge Wimes correctly recognizes that "Missouri cannot be compelled to assist in the enforcement of federal regulations within the state." Longstanding Supreme Court precedent holds that the federal government cannot "commandeer" state officials to help enforce federal law. That precedent played a key role in the Trump Administration's defeats in various immigration sanctuary cases, most notably in the California "sanctuary state" case, which is closely analogous to the Missouri gun litigation. Judge Wimes could have saved himself a lot of time and effort by simply applying the same logic here.
Instead, the court concludes that SAPA violates the Supremacy Clause of the Constitution (which mandates that constitutionally authorized federal law is supreme over state law) because the Missouri law goes beyond merely refusing to help the feds and actually "regulate[s] federal law enforcement" and "interfere[s] with its operations." But, in reality, SAPA does no such thing. Its provisions merely impose constraints on state and local officials. To the extent that may not be true, Judge Wimes should have struck down applications of the law to federal officials, while leaving intact the constraints it imposes on state ones.
As evidence of the law's regulation of federal officials, Judge Wimes cites Section 1.410, which states that some federal gun laws "exceed the powers granted to the federal government" and Section 1.420, which lists several types of federal gun regulations that "shall be considered infringements on the people's right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri." But neither of these sections actually imposes any mandates on federal officials or restricts their activities in any way. Nothing here upsets the usual assumption that state laws are presumed to issue commands to state and local officials (or, in some cases, private citizens), not federal agencies.
Section 1.430 of SAPA specifically states that the 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). That clearly indicates the law is directed at the activities of Missouri state officials, not federal ones.
The closest SAPA comes to actually restricting federal officials is Section 1.450, which says "[n]o 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 on 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.
In addition, SAPA includes a severability provision stating that "[i]f any provision of sections 1.410 to 1.485 or the application thereof to any person or circumstance is held invalid, such determination shall not affect the provisions or applications of sections 1.410 to 1.485 that may be given effect without the invalid provision or application, and the provisions of sections 1.410 to 1.485 are severable" (emphasis added). If Judge Wimes concluded that some parts of the law restrict federal officials, he should have applied the severability clause to invalidate the application of the law to that "person or circumstance," but left alone the restrictions on state and local officials, which are the main point of the law, and the only ones backed by any kind of penalty. Judge Wimes' ruling discusses some other aspects of severability, but ignores the fact that severability clause requires severing of invalid applications to specific "persons" and "circumstances."
If SAPA is deemed ambiguous on whether federal officials are covered, then it is important to keep in mind that Missouri courts, like the US Supreme Court, have a strong presumption against interpreting laws in ways that might render them unconstitutional. 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." In case of ambiguity, the district court should have applied this presumption.
Judge Wimes also ruled that various parts of the law are unconstitutional because they violate the doctrine of "intergovernmental immunity," which bars states from regulating the federal government, and "discriminating" against it or "those with whom it deals." Most of the provisions he claims violate this doctrine actually just restrict the actions of Missouri state and local officials. Section 1.470 forbids state and local government agencies from hiring people who previously participated in the enforcement of the types of federal gun laws listed in the Act. But, as explained in my previous post on this case, Section 1.470 doesn't violate intergovernmental immunity for reasons addressed in previous litigation over the California sanctuary state law:
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.
Section 1.440 of SAPA comes closer to violating the intergovernmental immunity because it indicates that state courts and law enforcement agencies have a duty "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 could be interpreted as requiring state officials to interfere with federal ones. But I would argue state laws are generally interpreted in ways that do not require actions banned by other state and federal laws, unless the law specifically states otherwise. Presumably, no one would argue that Section 1.440 authorizes Missouri state officials to commit murder, even if doing so might help protect gun rights. Similarly, it should also not be interpreted to require violations of federal laws binding under the Supremacy Clause. Even if this point is wrong, the right remedy is not to strike down all of SAPA, but simply invalidate any possible application that requires regulation of federal officials, and otherwise apply the severability clause discussed above.
As with the immigration sanctuary cases, this litigation has important implications for federalism that go beyond the specific issues involved. If the federal government can commandeer state officials, it will enable major power grabs by the executive, and undermine valuable interstate diversity. Even if you trust the Biden Administration to wield such power over gun laws, you may not trust the next Republican president (who might be Donald Trump again) with the power to commandeer states on their preferred issues.
If the anti-commandeering principle can be undermined by misconstruing severability clauses and ignoring state statutory interpretation rules, as Judge Wimes has done, the same types of maneuvers could be used to coerce states on other issues.
Finally, if state refusal to hire some types of former federal officials is struck down as a violation of intergovernmental immunity, it would severely constrain state governments' powers to choose their own employees. If Missouri cannot refuse to hire former federal gun-law enforcers, other states will be unable 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.
Finally, I should emphasize that Judge Wimes' ruling is wrong regardless of whether the federal gun laws listed in SAPA actually 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.
Hopefully, US Court of Appeals for the Eighth Circuit will take note of the many flaws in this district court decision, and overturn it on appeal.
NOTE: A few parts of this post are adapted from my earlier post on this case.
UPDATE: Strangely, Judge Wimes omitted discussion of what may be the most significant potential legal flaw in SAPA, the possibility that it bars state courts from enforcing federal law, as well as executive law enforcement agencies. The former are not protected by Supreme Court anti-commandeering precedent. I discussed this issue in some detail in an update to my previous post about this case. The bottom line is that this issue can be dealt with by the constitutional avoidance canon discussed above. If not, the mandate on state courts should be struck down, but severed from the rest of the law.
