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Missouri Supreme Court asked to weigh merits of Second Amendment Preservation Act

Court hears arguments on lower-court dismissal
Posted at 4:00 PM, Feb 07, 2022
and last updated 2022-02-07 17:00:31-05

KANSAS CITY, Mo. — The Missouri Supreme Court heard arguments Monday in an appeal regarding a controversial gun law passed last year.

Former 22nd Circuit Court Presiding Judge Robert Dierker of the St. Louis City Counselor’s Office, arguing for the appellants, called Missouri’s Second Amendment Preservation Act “ill-defined, indeed undefined” and “an amazing departure from conventional constitutional legislation.”

The Missouri legislature passed a law in May 2021 that bars local law enforcement in the state from enforcing federal gun laws.

Under the law, local law enforcement agencies face a $50,000 fine for cooperating with federal authorities in enforcing gun laws. It does not prohibit federal law enforcement from enforcing such laws.

Gov. Mike Parson signed House Bill 85 during a ceremony in June in Lee’s Summit.

The city of St. Louis, joined by St. Louis and Jackson counties, filed a lawsuit that challenges the Second Amendment Preservation Act on the grounds that it is unconstitutional.

Dierker argued that the law has hamstrung efforts in St. Louis and Jackson counties to combat violent crime and led some law-enforcement agencies in the state to refuse to participate in federal databases, like the FBI’s National Incident-Based Reporting System and the ATF’s eTrace program.

He suggested the law should actually be called the “Separation of Powers Destruction Act,” because of its attempts to circumvent the Supremacy Clause of the U.S. Constitution and declare certain invalid — though those laws are not specifically defined, making it an “unintelligible statute” in Dierker’s words.”

The Second Amendment Preservation Act’s vagueness “leaves a person of ordinary understanding at sea as far as what federal laws are unenforceable,” Dierker said.

Jeff Sandberg, an appellate attorney with the U.S. Department of Justice Civil Division, said federal law enforcement has seen significant challenges in getting cooperation from local law enforcement — including the Missouri State Highway Patrol and its crime lab, which no longer work with federal investigators.

Sandberg also cited a recent instance when a patrol deputy pulled over and identified a federal felon, but declined to arrest the person and instead let them go for fear of incurring a $50,000 fine.

Dierker and Sandberg asked the Missouri Supreme Court to reverse the dismissal of the case and rule on the merits of the constitutional challenge or to remand the case with instructions to grant a preliminary injunction.

Arguing on behalf of the state, Missouri Solicitor General D. John Sauer said it would be an “extraordinary departure” from state supreme court history to rule on the merits of a case without the arguments having been heard first at a lower judicial level.

The state asked the court, if it didn’t buy the “adequate legal remedy” argument, to remand the case to the trial court to consider the merits of constitutional issues.

Sauer described Cole County Judge Daniel R. Green’s decision in August to refuse a declaratory judgment in the case as founded on “bulletproof, unshakeable ground.”

But justices with the Missouri Supreme Court questioned whether the handful of lawsuits filed by federal convicts asserting claims had standing

Sauer said the state planned to intervene in those cases and defend the statute, but he acknowledged that such action hadn’t been taken yet.

Dierker said, even if multiple individual challenges go forward, the Missouri Supreme Court should feel compelled to consider the merits of the Second Amendment Preservation Act to prevent multiple, possibly conflicting or inconsistent, rulings that still fail to address the merits.

He argued the state's high court should have “no choice in this regard, but to face the central problem with the statute, which is the overreach by the General Assembly.”

The Department of Justice argued shortly after the measure was signed that the U.S. constitution’s Supremacy Clause outweighs the Second Amendment Preservation Act in seeking clarification from state officials about the new law.

More than 1,000 local governments and at least 17 states, including Kansas, have passed some version of the Second Amendment Preservation Act, including 11 that passed statutes in 2021 as part of a nationwide GOP push.

The DOJ later called the law “legally invalid,” but Green ruled that other legal remedies existed and declined to rule on the merits of the law’s constitutionality.