St. Louis Lawsuit Against Second Amendment Preservation Act is Totally Baseless
The Missouri state legislature recently passed (and Governor Parson quickly signed) HB 85, the Second Amendment Preservation Act, a bill designed to ensure that state and local law enforcement in Missouri are focused on enforcing gun laws passed by our own lawmakers in Jefferson City, not the folks in Washington, DC. Opponents of this bill have loudly and repeatedly claimed that SAPA is unconstitutional… but most have declined to offer any legal analysis that would actually support these claims.
At the outset, it’s important to explain what this new law actually says, because many of the critics do not seem to have actually read it. Section 1.410 explains the legislature’s understanding of the principles of federalism, including the limits of the powers the U.S. Constitution gives to Congress and the rights the people preserved to state governments through the Tenth Amendment. It draws very heavily from the writings of James Madison (who is frequently referred to as the “Father of the Constitution”) and Thomas Jefferson (author of the Declaration of Independence), and it states the relatively uncontroversial idea that if Congress passes a law that exceeds the authority granted by the Constitution, that law is unconstitutional. Section 1.410 then expresses the legislature’s sentiment that the Constitution does not give Congress the authority to regulate the possession and use of firearms and, therefore, this authority properly belongs to the states. Section 1.420 describes certain types of federal regulation that exceed Congress’s authority, including special taxes and fees that only apply to firearms, firearms accessories, or ammunition; laws requiring the registration or tracking of firearms or firearm owners; laws prohibiting law-abiding citizens from possessing, owning, or transferring firearms; and laws that would confiscate firearms, firearm accessories, or ammunition from law-abiding citizens. Section 1.430 states that the state government will not recognize or enforce the kinds of laws identified in 1.420 – but to be clear, nothing in this section would prevent federal agencies or officers from enforcing those laws. Section 1.450 states that no entity or person has the authority to enforce federal laws that would infringe on Missourians’ right to keep and bear arms. Section 1.460 allows a citizen whose rights have been violated to vindicate their rights by suing the government entity that employs the officer who violated their rights; the government employer (not the offending officer) would be liable for a civil penalty of $50,000 per occurrence and a successful plaintiff could recover their attorney fees. Section 1.470 subjects government entities to potential lawsuits if they knowingly employ an individual who enforced any federal regulations described in section 1.420 or who provided “material aid and support” to others who were attempting to enforce those federal regulations; if found liable under this section, the government entity (not the individual employed by that entity) would be subject to a civil penalty of $50,000 per employee hired by that entity and a successful plaintiff could recover their attorney fees.
Yesterday, St. Louis City and St. Louis County filed a lawsuit that asks the Cole County Circuit Court to declare SAPA unconstitutional. As fans of the Freedom Center will be aware, when a plaintiff claims that a law is unconstitutional, they are obliged to identify (1) the constitutional provision(s) allegedly violated, (2) the specific law or government act that allegedly violates the constitutional provision(s), and (3) facts sufficient for a court to conclude that the challenged law or government act is actually being used (or its use is being threatened) in a way that creates a real, current risk that the plaintiff’s constitutional rights will be violated. The St. Louis governments claim that SAPA violates nine sections of the Missouri Constitution as well as the U.S. Constitution’s Supremacy Clause – and now that these plaintiffs have committed themselves to an actual theory as to how and why SAPA might be unconstitutional we can assess their claims.
The plaintiffs first ask the court to declare that SAPA violates Article III, section 23 of the Missouri Constitution, which requires bills to have no more than one subject, which shall be clearly expressed in the bill’s title. Missouri courts have held that these are two separate limitations: a single-subject requirement and a clear title requirement. “The test to determine if a bill contains more than one subject is whether all provisions of the bill fairly relate to the same subject, have a natural connection therewith or are incidents or means to accomplish its purpose. This test does not concern the relationship between individual provisions, but between the individual provision and the subject as expressed in the title.” Trenton Farms RE, LLC v. Hickory Neighbors United, Inc., 603 S.W.3d 286, 295 (Mo. banc 2020) (citing C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322, 328 (Mo. banc 2000). Missouri courts determine a bill’s subject by looking to its title when finally passed. Id. (citing Calzone v. Interim Comm’r of Dep’t of Elem. & Secondary Educ., 584 S.W.3d 310, 321 (Mo. banc 2019)). When HB 85 was finally passed, its title declared its purpose to be “adding additional protections to the right to bear arms, with penalty provisions and an emergency clause.” As long as the provisions of the bill “fairly relate to the same subject, have natural connection therewith or are incidents or means to accomplish” the purpose of the bill, Missouri courts will not find a violation of the single subject requirement. The title given to HB 85 concisely described the purpose of the bill and each part of the bill was related to that express purpose; there is no legitimate basis for contending that it violated the single subject requirement. In order to successfully argue that a bill violates the “clear title” requirement, Missouri courts have held that a plaintiff must claim that the bill’s title is “so restrictive or underinclusive that some of the provisions fall outside its scope,” or that the subject expressed in the title is “so broad or amorphous in scope that it fails to give notice of” the bill’s content. See Home Builders Ass’n of Greater St. Louis v. State, 75 S.W.3d 267, 269-70 (Mo. banc 2002). The petition St. Louis City and St. Louis County filed makes no effort to explain why, in light of the fact that HB 85’s title indicated that the bill included “penalty provisions” associated with “adding additional protections to the right to bear arms,” this was insufficient to “indicate in a general way the kind of legislation that is being enacted.” Id. Given the plaintiffs’ failure to allege the facts necessary to support either a “single-subject” claim or a “clear title” claim, the state should move to have these claims dismissed and the court should grant such a motion.
The plaintiffs also argue that SAPA violates Article III, section 21 of the Missouri Constitution, which states that “no bill shall be so amended in its passage through either house as to change its original purpose.” Stating a claim under this provision requires a plaintiff to compare the purpose of the bill as introduced to the bill as actually passed. The plaintiffs’ petition did not include a copy of HB 85 as it was originally presented in the legislature and made no effort to explain what amendment made in the course of the legislature’s deliberation of the bill might be considered to have changed the original purpose of the bill. For that reason alone, the petition failed to state a claim for relief under this constitutional section. As long as a change to a provision is germane to its original purpose, courts will not find a violation of Art. III, § 21. Trenton Farms RE, LLC v. Hickory Neighbors United, Inc., 603 S.W.3d 286, 294-95 (Mo. banc 2020); Calzone v. Interim Comm’r of Dep’t of Elem. & Secondary Educ., 584 S.W.3d 310, 317 (Mo. banc 2019). This particular aspect of the plaintiffs’ petition is totally frivolous.
The petition further asserts that SAPA is a “special law” of the sort prohibited by Article III, section 40(28) of the Missouri Constitution, which prohibits special laws “granting to any corporation, association or individual any special or exclusive right, privilege or immunity”. A “special law” is one that only applies to a limited part of the state’s population, rather than applying to everyone. The Missouri Constitution expressly prohibits many different types of special laws, but also includes (in Art. III, section 40(30)) a prohibition against passing a special law “where a general law can be made applicable”. To be sure, the petition makes no effort to explain why SAPA should be considered a “special law.” The statute applies equally to everyone in the state of Missouri. That is the very definition of a law of “general applicability,” and the antithesis of a “special law.” Even if the plaintiffs had identified any way that the statute might be considered special legislation, it’s not at all clear why the City and/or County would have standing to bring the challenge, given that everyone in their jurisdiction would be treated just the same as everyone in every other jurisdiction. Furthermore, much to the Freedom Center’s chagrin, Missouri courts have been exceptionally lenient when it comes to allowing the legislature to enforce laws that only apply to a limited part of the state’s population. We do not approve of that leniency, but especially in light of how courts have applied (or rather, failed to apply) the prohibition against special laws it is absolutely absurd to suggest that SAPA runs afoul of this restriction on the legislature’s authority.
The City and County try to assert that several sections of the Missouri Constitution preclude the state legislature from requiring charter municipalities to conform to a statewide policy, but Missouri courts have already thoroughly addressed this sort of claim. Despite the limited autonomy the Missouri Constitution offers to charter counties, they remain subdivisions of the State and, consequently, “must act in harmony with the general law when it touches upon matters of state policy.” Mo. Bankers Ass’n, Inc. v. St. Louis Cnty., 448 S.W.3d 267, 273 (Mo. banc 2014); Pepper v. St. Charles County, 517 S.W.3d 590, 596 (Mo. App. E.D. 2017). The General Assembly may “limit the powers a charter city may exercise through its officers; a charter provision that conflicts with a state statute is void.” City of Springfield v. Goff, 918 S.W.2d 786, 789 (Mo. banc 1996). The test for determining whether a conflict exists is whether the ordinance prohibits something the statute permits or permits something the statute prohibits. Shepard Well Drilling Co. v. St. Louis County, 912 S.W.2d 606, 609 (Mo. App. E.D. 1995). SAPA strips the state and all of its political subdivisions and the officers thereof of the authority to enforce the types of federal laws identified in section 1.420. To the extent that the City or County have ordinances or policies that depend on enforcing the types of federal laws identified in section 1.420, those ordinances or policies now conflict with state law and, pursuant to longstanding Missouri law, are void; charter cities and counties are still bound by state law even if they find it inconvenient or otherwise objectionable.
The specific provisions that the petition cites do not help the plaintiffs’ case:
Mo. Const. Art. VI, § 18(b) requires charter counties to establish the “number, kinds, manner of selection, terms of office and salaries of the county officers, and for the exercise of all powers and duties of counties and county officers prescribed by the constitution and laws of the state.” The petition offers no theory whatsoever upon which it bases its contention that SAPA prevents the plaintiffs from complying with Art. VI, § 18(b).
Mo. Const. Art. VI, § 18(e) prohibits the state legislature from passing any law that would “provide for any other office or employee of the county or fix the salary of any of its officers or employees.” The petition offers no theory whatsoever to suggest that SAPA provides for an office or employee of the City and/or County or that SAPA fixes the salary of any of the City’s or County’s officers or employees.
Mo. Const. Art. VI, § 22 prohibits the state legislature from passing any law that would create or fix “the powers, duties or compensation of any municipal office or employment”. Similar to the deficiency in regard to Art. VI, § 18(e), the petition offers no theory whatsoever to suggest that SAPA creates or fixes “the powers, duties or compensation” for any office or employee of the City and/or County. There is just no valid basis for the plaintiffs’ contention that SAPA violates this provision.
Mo. Const. Art. VI, § 31 only grants the City of St. Louis “the powers, organization, rights and privileges permitted by this constitution or by law.” This provision allows the City to continue with its charter “subject to changes and amendments provided by the constitution or by law”. Nothing in this provision suggests that the City is exempt from the same general statutes and limitations on local power that apply to every other jurisdiction throughout the state, nor does the petition offer any argument as to why this section would exempt St. Louis City from a generally applicable law that limits governmental power.
One of the more mystifying claims the plaintiffs make is that SAPA violates Article II, section 1 of the Missouri Constitution, which establishes the Separation of Powers. As far as it is possible to discern the plaintiffs’ argument in regard to Article II, it seems they are contending that the legislature has exercised a judicial function by stating that the legislature considers certain exercises of federal authority to be invalid and that, as a consequence, those exercises of federal authority “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.” Importantly, however, the legislature never claims to have the power to prevent the federal government from enforcing federal laws. SAPA simply declares that the state government itself will refuse to recognize or enforce those federal laws – and that is a decision that state legislatures are absolutely allowed to make. See, e.g., Murphy v. NCAA, 138 S.Ct. 1461 (2018); Printz v. U.S., 521 U.S. 898 (1997). Indeed, Article I, section 3 of the Missouri Constitution clarifies that “the people of this state have the inherent, sole and exclusive right to regulate the internal government and police thereof“. If the legislature has decided that the police of this state should not assist the federal government in enforcing federal laws that the legislature believes to exceed the limits of Congress’s power, the Missouri Constitution clearly supports a policy decision to deny this state’s police the authority to enforce those federal laws.
And finally, the plaintiffs attempt to argue that SAPA violates the Supremacy Clause of the U.S. Constitution. There are two major problems with this argument. First, the only part of this law that might implicate the Supremacy Clause is if a citizen attempted to sue a federal agency or official under sections 1.460 or 1.470. In the highly unlikely event that such a situation should arise, the federal agency or official could argue that, as applied to them, the law would violate the Supremacy Clause – and that would be a winning argument. States absolutely cannot prevent federal agencies or officials from enforcing federal laws. But that is not the situation in the case St. Louis City and St. Louis County have filed. Municipalities lack standing to assert claims on behalf of federal officers and agencies. Because the Supremacy Clause issue can only be brought before a court if a citizen uses SAPA to sue a federal entity or officer, these plaintiffs lack standing to pursue this issue. So long as SAPA is only being applied to state and local agencies, the statute does not violate the Supremacy Clause. We can be confident on this point because the federal courts have repeatedly confirmed that the Supremacy Clause assumes the same limit on Congress’s power that the anti-commandeering doctrine does—that Congress may regulate only individuals, not state governments. Brackeen v. Haaland, 994 F.3d 249, 403 (5th Cir. en banc 2021). It has been established for nearly a quarter-century that the U.S. Constitution does not allow the federal government to require state or local law enforcement officers to help enforce federal gun regulations. Printz v. U.S., 521 U.S. 898, 919-22 (1997). If the Constitution does not allow the federal government to impose this sort of requirement, it cannot possibly violate the Supremacy Clause for a state legislature to establish a policy that state and local law enforcement officers are not authorized to help enforce federal gun regulations.
In short, as long as Missouri courts adhere to the long-standing principles of law regarding the various constitutional provisions the plaintiffs have cited, this lawsuit should be swiftly dismissed. The Freedom Center will be closely monitoring this case and intends to file briefs that will ensure that the judges are thoroughly and correctly appraised of the legal principles involved.