The Volokh Conspiracy
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Eighth Circuit Wrongly Struck Down Missouri's Gun Sanctuary Law—But Also Created a Roadmap for How Such Laws Can Escape Invalidation in the Future
The court indicates the law would be constitutional so long as it does not claim to declare a federal law "invalid."
As co-blogger Jonathan Adler notes, on Monday the US Court of Appeals for the Eighth Circuit, upheld a trial court decision striking down Missouri's Second Amendment Preservation Act (SAPA), the state's "gun sanctuary" law. I think the court got the decision wrong. But, in the process, it also essentially laid out a road map by which SAPA and other similar laws could survive judicial scrutiny with only cosmetic changes.
SAPA, like other gun sanctuary laws, bars state and local officials from helping to enforce various federal gun regulations that the state considers to be unconstitutional violations of the Second Amendment. Like the district court, the Eighth Circuit ruling recognizes that "Missouri may lawfully withhold its assistance from federal law enforcement." A long line of Supreme Court decisions has held that the federal government may not "commandeer" state and local governments into helping enforce federal law. In part on that basis, numerous federal court decisions struck down Trump Administration efforts to force liberal sanctuary cities and states to help enforce federal immigration law. Conservative gun sanctuary laws are an imitation of liberal immigration sanctuaries, albeit advancing a right-wing cause rather than a left-wing one.
Nonetheless, the Eighth Circuit struck down SAPA because the state statute says that the federal laws it targets are "invalid." While the state can refuse to help federal law enforcement, that "does not mean that the State may do so by purporting to
invalidate federal law."
This reasoning strikes me as wrong. All SAPA actually does is deny state assistance to federal efforts to enforce certain gun laws. I went over this point in detail in my analysis of the district court ruling. The law does not impede the federal government's own law enforcement efforts. The fact that the state's motive for denying assistance is a belief that the federal laws in question violate the Second Amendment and are therefore "invalid" should be immaterial.
There are situations where an otherwise permissible state law becomes unconstitutional due to illicit motivations (e.g.—if the law is motivated by racial or ethnic discrimination). But a belief that a given federal law is unconstitutional isn't one of them. That's true even if the state legislature is wrong to think the laws in question violate the Second Amendment. Even if these federal laws are perfectly constitutional, the state still has the constitutional authority to refuse to help enforce them.
Such denial of assistance is distinct from "nullification," with which it is often confused. When states try to "nullify" federal laws, as happened in conflicts over slavery, tariffs, and civil rights, they go beyond merely denying assistance to impending federal law enforcement efforts. SAPA and other gun sanctuary laws do not do that.
Another flaw in the Eighth Circuit decision is that it refuses to sever the part of SAPA it found unconstitutional from the rest of the statute, despite SAPA having an explicit severability clause: "We conclude that the law is not severable because the entire Act is founded on the invalidity of federal law." However, SAPA's statement of the reasons for the law ("invalidity") is severable from the operative portions of the statute (which bar state officials from helping to enforce the laws in question). I think the Eighth Circuit, like the district court, also ignored Missouri's requirement that state laws be interpreted to avoid unconstitutionality, where possible (federal courts must defer to state courts in interpreting state law). Here, that means the declaration of "invalidity" should be interpreted as only extending to state assistance to the feds, not any general invalidity of the laws within Missouri's border.
Despite these flaws, the Eighth Circuit ruling actually provides a road map for how Missouri can easily fix SAPA, and protect it against future legal challenges. It could bar state officials from helping to enforce the exact same federal laws, but do so without asserting that the laws are "invalid." Substantively, this revised SAPA would be exactly the same as the current version. But by avoiding references to "invalidity," the state can satisfy the test set up by the Eighth Circuit. After all, the court concedes (as it must) that Missouri has the right to "withhold its assistance from federal law enforcement." Other gun sanctuary states would be well advised adopt similar strategies, especially if they are within the Eighth Circuit's jurisdiction. The state can even still assert the laws in question violate the Second Amendment, so long as it recognizes that doesn't make them completely invalid until a court decision so holds.
If you think this is the kind of legal hair-splitting that makes people hate lawyers, I don't really disagree. But I'm not the one who created this somewhat silly distinction. The Eighth Circuit did.
In sum, this decision should not meaningfully impede state gun sanctuary laws, so long as state legislatures avoid references to the "invalidity" of the federal laws they want to stop state officials from helping to enforce.
Despite the legal and structural similarities between gun sanctuary laws and immigration sanctuaries, most who claim the former are illegal support the latter, and vice versa. I'm one of the relatively few people who support both. In my view, both types of sanctuaries protect valuable forms of liberty against federal overreach, and help empower people to vote with their feet. But, regardless of the policy merits, both are protected by constitutional restrictions on federal commandeering of state and local governments.
