“Let the good of the people be the supreme law,” reads Missouri’s state motto. Sounds nice, but under the U.S. Constitution’s supremacy clause, it’s federal law that reigns supreme, “and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.”
That’s why a new Missouri law prohibiting state and local officials from enforcing certain federal gun laws has sparked a growing controversy. With President Biden under increasing pressure to undertake sweeping new gun-control measures, Missouri enacted H.B. 85, which purports to make it illegal for state and local officials to enforce federal gun laws that violate the Second Amendment right to bear arms — according to Missouri.
The law is poorly written and riddled with problems. But its principal thrust — that state and local police have no obligation to enforce federal law — is entirely correct. And that is worth recalling now, as the federal government continues to expand its control over state governments, corroding the very structure of the Constitution.
After the law’s passage, the Department of Justice was quick to fire off a letter demanding “clarification” of the law, warning that states cannot “nullify” federal law. Just as quickly, Governor Michael Parson and the state attorney general fired back with a letter of their own: “We will not stand by while the federal government tries to tell Missourians how to live our lives.” Meanwhile, both the city of St. Louis and St. Louis County have sued in state court to get the law thrown out, a rare case of Democrats insisting on maximal police powers.
Among the law’s key provisions, Section 1.420 designates certain types of new federal gun-control measures as per se “infringements” of the Second Amendment right to bear arms. Two other key provisions are as follows:
1.450. 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.
1.460. Any political subdivision or law enforcement agency that employs a law enforcement officer who acts knowingly . . . to violate the provisions of section 1.450 or . . . otherwise knowingly deprives a citizen of Missouri of the rights or privileges ensured by Amendment II of the Constitution of the United States or Article I, Section 23 of the Constitution of Missouri while acting under the color of any state or federal law shall be liable to the injured party . . . and subject to a civil penalty of fifty thousand dollars per occurrence.
The Missouri Law Is Poorly Written
The wording of these provisions is unfortunate, to say the least. Section 1.450 is not, technically speaking, a prohibition. It merely purports to state, as a matter of fact, that no state or local government employee “shall have authority” to enforce those federal gun laws that H.B. 85 deems unconstitutional. That could allow someone to challenge a state official’s action as exceeding his authority; but would the state official have “violated” any law?
Assuming the provision has the prohibitive effect its authors apparently intended, the language raises another question: Does it apply to judges in Missouri? If it does, H.B. 85 is clearly unconstitutional, at least to that extent, because the supremacy clause is by its terms binding on “the judges in every State.” The penalty provision (Section 1.460) applies only to the actions of “law enforcement officers,” but the legal standard in the previous section applies to all employees of state or local government, which certainly includes judges. Further muddying the waters, H.B. 85 states in a separate section: “It 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.” It would be strange indeed to learn that state judges bound by the supremacy of federal laws must defer to how those laws are interpreted by their state legislatures.
The Justice Department letter insinuates that H.B. 85 is an attempt to “nullify” federal law. The supposed right of nullification has the same source as the supposed right of secession. Both were championed by the pro-slavery, secessionist senator John C. Calhoun of South Carolina in the decades before the Civil War. The concept of nullification became briefly popular again with the Tea Party wave after the election of Barack Obama, though stripped of both its pro-slavery antecedents and its secessionist logic. Unfortunately, while Missouri officials deny that H.B. 85 seeks to nullify federal law, the law’s preamble embraces a key element of nullification theory, namely the idea that the U.S. Constitution is merely a compact among the states and that, “as in all other cases of compacts among powers having no common judge, each party has an equal right to judge for itself as to whether infractions of the compact have occurred, as well as to determine the mode and measure of redress.”
This is simply nonsense. The Constitution is not a compact among states; it is a constitution of “We the People,” and its sovereignty operates directly on individuals. That was the effect of ratification. And in any case, there is a “common judge,” namely the Supreme Court.
Why This Kind of Law Is Still Necessary and Proper
Despite H.B. 85’s many flaws, the cause it is intended to further is both proper and urgently necessary. American democracy has been evolving in the direction of a “collectivist dictatorship” — as Walter Lippmann warned in the 1930s — since the Progressive and New Deal eras. Those movements transformed our federal government from one of limited and enumerated powers into one of unlimited and plenary powers. As a result of the dramatic expansion in the federal government’s power to tax and to regulate commerce, the Tenth Amendment has become mostly a dead letter: There are no longer any powers that courts would consider “reserved to the States” and withheld from the federal government. Even those that the federal government has deigned to leave in state hands for the moment have largely come under federal control through the coercive use of its regulatory and spending powers.
The Supreme Court has insisted that state governments and state officials can’t be required to serve the federal government, but it has also ruled that they can be “encouraged” to do so in ways that leave states with little choice in the real world. In every state’s budget, there are hundreds of sources of federal “assistance.” To every one of those assistance programs, the federal government attaches scores of conditions. Peruse the hundreds of “requirements” the federal government attaches to the money it sends state Medicaid programs, and you will realize that they are essentially instructions to field offices covering every aspect of program design and administration. States have no choice but to comply because of the billions that their own citizens are already paying into those programs, which they risk losing to other states. Or consider the Clean Air Act, through which the Environmental Protection Agency in effect controls state environmental agencies, with the threat of punishing regulations if the states don’t do its bidding.
Few Americans appreciate the sweeping constitutional transformation that is happening beneath the surface of American politics. Because the transformation is gradual, structural, and mostly bipartisan, our political discourse rarely focuses on it. The dissolving federal structure of the Constitution doesn’t come up even in the most obvious cases, such as Obama’s Title IX order on transgender school bathrooms, or Obamacare’s forced expansion of Medicaid, or the EPA’s Clean Power Plan, or Trump’s threat to cut off federal funds for “sanctuary cities,” or the insistence that states must enforce federal drug laws — or even the looming efforts to rope state officials into new federal gun-control measures, the very danger that H.B. 85 is meant to protect against.
These seemingly disparate initiatives are all deeply corrosive to the federal structure of the Constitution, and in the same way: They represent the steady absorption by the federal executive branch of the powers once reserved to the other federal branches and the states — the very centralization of government that Patrick Henry predicted when he railed against the proposed constitution in the Virginia ratification debates.
The constitutional transformation is operating in two directions, horizontally and vertically. First is the dissolving separation of powers among the branches of the federal government; regulations and executive actions of both parties push past the limits of authority delegated by Congress, with the connivance of federal courts. Second is the increasing federal takeover of key functions normally reserved to state governments. With every presidential administration, the integration of federal and state governments proceeds apace, through “cooperative federalism” programs that have severely diminished state governments’ freedom to govern in their proper sphere of authority.
Read the full article at National Review.