Missouri lawmakers make last stand to void federal legislation

On Sept. 11 the legislature of the state of Missouri will meet to vote on whether or not Missouri wants to remain one of the United States.

On that date the legislators will vote whether to override the governor's veto of a proposed law titled the "Second Amendment Preservation Act." The proposed law expresses the will of the state to ignore the U.S. Constitution when it disagrees with constitutional principles.

The subject is, as we might suspect, gun control. The law is intended to prevent any federal legislation, or other federal regulation or action, from interfering in any manner with the rights of "law abiding mentally competent Missourians" to purchase, own or carry firearms, or carry them concealed on their persons. It does so by enacting its own version of constitutional history, emphasizing the purported rights of the states against the federal government.

Section 1.320.2(4) provides, "Whenever the federal government assumes powers that the people did not grant it in the Constitution, its acts are unauthoritative, void and of no force." Among the laws it finds to have exceeded those powers are the federal Gun Control Act of 1934, a similar 1938 law, and all laws involving taxing, tracking or registering firearms, or forbidding any type of firearms by definition. (Presumably semi-automatic weapons.) Other provisions seek to assure that the Commerce Clause and the Necessary and Proper Clause are not invoked to justify firearms regulation.

There is no mention of the federal courts in the law. It does recite that because the "compact" between the states and the federal government has no common judge, "each party has an equal right to judge itself, as well as infractions of the mode and measure of redress." Presumably this means that no federal court has the right to interpret or enforce the Constitution in a manner offensive to Missouri.

Among the other balls on this particular Christmas tree, the law would make any attempt to enforce the law by a federal official a crime, give every Missourian the right to arrest such person, and the parallel right to bring a civil suit against him. This is not treason, which is defined with specificity by the Constitution. But it is dangerously close to rebellion if a federal officer is arrested by a state when carrying out his legitimate duties.

This proposal is not a casual one pager submitted by some yahoo backbencher simply reciting obeisance to the Second Amendment. It is 23 pages devoted to the right of Missouri to its independence on gun control matters, and to assuring that virtually any unconvicted resident of the state can obtain a license and a concealed carry permit. Its author brags that several other states have asked for a copy of the bill.

The word is, of course, "nullification," and its unsuccessful invocation is not without precedent in American history. By seeking penalties against federal officials, this law goes considerably further than earlier efforts. (Current campaigns in other areas include marijuana regulation and state attempts to nullify the health care law. Gun control is only one issue of several fragmenting Colorado, where there is a marginal movement in some counties to secede from the state.)

The law passed by overwhelming margins in both the Missouri House and Senate. The governor's veto correctly invokes federal supremacy, but it now appears that the supporters of the law have the votes to override it. One Democrat, who concedes the law's unconstitutionality, voted for it and asks, rather plaintively it seems, whether he is supposed to go against the voters of his district, who strongly support it.

Apparently the people of Missouri are of the same mind. A high school freshman's poll found that 70 percent of those surveyed favored allowing firearms in schools, and allowing teachers the choice whether to carry concealed weapons. There seems to be little debate that the legislature is reading its constituents correctly.

It was the U.S. Supreme Court in the Heller case that interpreted the Second Amendment to create rights of gun ownership or possession in individuals. It is that interpretation, which a later case extended to create the right in the people under state law, that Missouri (and other states) is trying, with popular support, to extend.

But even Justice Antonin Scalia in Heller conceded that there are categories of individuals who should not be allowed to own guns. And ambiguity exists with respect to what kind of firearms are actually protected by Heller.

Heller itself is hardly a model of judicial decision making. Five justices examined the historical record and reached a conclusion consistent with their political position. Four other justices examined the same record and reached a conclusion consistent with their political positions.

Constitutional law is clear. It is the duty of the courts to say what the law is, despite the interpretation recited in this law. Article VI clearly requires the supremacy of federal law. When Missouri joined the union, it signed on to the Constitution, and these and other provisions.

The unconstitutionality of the law is plain and obvious. The New York Times (Aug. 29, 2013) says that "most experts say the courts will strike down the measure." That is an understatement. The National Rifle Association has declined to comment on the law.

What is truly disturbing is the popular support a measure like this has generated not only in Missouri, but in several other states. Most Americans would sign on to the principle of "constitutionalism" as a national value. Here we see an apparent majority of a state's population deciding that the right to limit the regulation of firearms ownership is more important than this fundamental tenet of our national unity.

It is not enough to conclude that these citizens apparently flunked eighth grade civics. They represent a view that has paralyzed discussion of the issue, on a subject considerably less universal in its importance or application than the issue that led to the most significant effort at nullification this country has experienced, the Civil War. The rule of law will no doubt ultimately prevail and relegate this particular attempt to the scrapheap of Missouri history. But it should not require a court decision to force recognition of constitutional obligations on a sovereign population and its legislative representatives.