U.S.A. –-(AmmoLand.com)-– On February 16, 2022, the Biden Administration filed a lawsuit in the United States District Court for the Western District of Missouri, Central Division, claiming the Second Amendment Protection Act, (SAPA) was unconstitutional.
This lawsuit challenges a Missouri state statute that purports to invalidate federal firearm laws within the State. The Missouri law uniquely discriminates against federal agencies and employees; impairs law enforcement efforts in Missouri; and contravenes the Supremacy Clause of the United States Constitution.
The statute referred to was passed as HB 85 and 310. The bills specifically challenge federal power in several ways. The bills are a direct challenge to federal power to regulate and tax arms, as well as an anti-commandeering measure. From the bill:
(6) The people of the several states have given Congress the power “to regulate commerce with foreign nations, and among the several states”, but “regulating commerce” does not include the power to limit citizens’ right to keep and bear arms in defense of their families, neighbors, persons, or property nor to dictate what sorts of arms and accessories law-abiding Missourians may buy, sell, exchange, or otherwise possess within the borders of this state;
(7) The people of the several states have also granted Congress the powers “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States” and “to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution of the United States in the government of the United States, or in any department or office thereof”. These constitutional provisions merely identify the means by which the federal government may execute its limited powers and shall not be construed to grant unlimited power because to do so would be to destroy the carefully constructed equilibrium between the federal and state governments. Consequently, the general assembly rejects any claim that the taxing and spending powers of Congress may be used to diminish in any way the right of the people to keep and bear arms;
The commerce clause and the taxing power are the basis by which the federal government claims the power to enforce most federal gun laws in the United States against individuals. The only federal gun laws before 1934 were measures to prohibit the sale of handguns through the federal postal service. As the postal service is specifically granted to the federal government by the Constitution, this was not challenged.
The Supreme Court ruled in the Miller decision, in 1939, the Second Amendment might not apply to arms that were not related to use in a militia; the ruling was poorly worded, and far from conclusive. Lower courts, packed with Progressive judges by the FDR administration, simply ignored the Miller decision and held the federal government could regulate arms through the commerce clause and with taxation. From a previous article:
In Cases v. United States, 1942, a three-judge panel on the First Circuit ruled it was unlikely Miller meant military arms were protected by the Second Amendment: From Cases:
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.
The judges did not want military arms protected, so they ruled they were not protected.
The Heller decision was the first case about the Second Amendment heard by the Supreme Court since 1939. In the Heller decision, in 2008, the court implied the federal government had the Constitutional authority to regulate commercial sales of firearms. Then, with the McDonald decision in 2011, the Supreme Court held the restrictions of the Second Amendment on the federal government applied to the states as well.
In order for the federal district court to find against the federal government, it would have to find the Heller decision wording about commercial sales to be invalid, which seems unlikely. The same applies to the federal Eighth Circuit Court of Appeals, in which Missouri is located.
This is the first case this correspondent is aware of which directly challenges the federal government’s authority to use the commerce clause and the taxing power to avoid Second Amendment limitations, via the explicit limitation of power placed on the federal government by the Tenth Amendment. Both amendments specifically limit government power. This challenge is not from a private individual, but directly from a sovereign state, which should grant it clear standing before the court.
To prevail, the case will have to go to the Supreme Court. This correspondent finds the arguments presented in HB 85 and 310 to be persuasive. The Tenth Amendment specifically limits federal power. The Second Amendment specifically limits government power. The concept that the federal government can avoid these limitations by evoking the commerce clause and taxing authority makes a mockery of the checks and balances of the Constitution. The legislative history of the National Firearms Act is specific in that the taxing power was used, very intentionally, as a workaround the limitations imposed by the Second Amendment and the Commerce Clause.
If the Tenth Amendment and the Second Amendment can be evaded simply by evoking the commerce clause and the taxing power, those amendments in the Bill of Rights are essentially rendered void. As both the Second and Tenth Amendments were ratified after the Constitution was ratified, it is clear they were meant as constraints on those powers.
None of this means the District Court in Missouri or the Eighth Circuit will rule in favor of Missouri. With several originalists and textualists on the Supreme Court, there is a chance the Supreme Court could rule in favor of Missouri.
The effect of such a ruling would be the limiting of federal gun laws, to those involving import and export, or, possibly, to commerce that actually crosses state lines. Thus, federal firearms licenses could remain in effect, but commerce inside a state would not require a federal firearms license. The National Firearms Act restrictions would only apply if those items were shipped across state lines. In practice, most firearms and most NFA items are shipped across state lines. In practice, the Supreme Court has held the commerce clause gives the federal government the power to regulate all commerce. Some justices on the Supreme Court disagree with this interpretation.
If the Supreme Court found the Missouri law to be constitutional, it would not roll back all power under the commerce clause, but only the power related to infringements on the Second Amendment.
The Missouri law contains a clear severability clause. If parts of the law are found to be unconstitutional, they do not render the entire law unconstitutional. It seems likely the anti-commandeering portions of the law would survive judicial review.
About Dean Weingarten:
Dean Weingarten has been a peace officer, a military officer, was on the University of Wisconsin Pistol Team for four years, and was first certified to teach firearms safety in 1973. He taught the Arizona concealed carry course for fifteen years until the goal of Constitutional Carry was attained. He has degrees in meteorology and mining engineering, and retired from the Department of Defense after a 30 year career in Army Research, Development, Testing, and Evaluation.