Federal Supremacy and U.S. v. Missouri
Michael Ramsey
Via Jonathan Adler at Volokh Conspiracy, in a recent decision in U.S. v. Missouri the Eighth Circuit invalidated Missouri's so-called gun sanctuary law as violating the supremacy clause. As Chief Judge Colloton explained for the court:
Missouri's Second Amendment Preservation Act classifies various federal laws regulating firearms as "infringements on the people's right to keep and bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri." The Act declares that these federal laws are "invalid to this state," "shall not be recognized by this state," and "shall be specifically rejected by this state."
... The Act imposes a “duty” on “the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens . . . from the infringements defined under section 1.420.” The Act also mandates that “[n]o 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” a federal law that “infring[es] on the right to keep and bear arms.”
Also at Volokh Conspiracy, Ilya Somin objects that all the statute does is refuse to allow state officials to enforce federal law, which states are constitutionally entitled to do. It shouldn't matter why the state decides to act as it does -- that is, whether it thinks federal firearms laws are unconstitutional or just bad policy -- as long as the state's actions themselves are constitutional (which they are).
I agree, but I wonder if there isn't something more fundamentally wrong with the court's conclusion. The opinion rests on the following core proposition:
The Supremacy Clause states that federal law is “the supreme Law of the Land, . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. “By this declaration, the states are
prohibited from passing any acts which shall be repugnant to a law of the United States.” McCulloch v. Maryland, 7 U.S. (4 Wheat.) 316, 361 (1819). The “Second Amendment Preservation Act” states that certain federal laws are “invalid to this state,” Mo. Rev. Stat. § 1.430, but a State cannot invalidate federal law to itself.
That first sentence, though, is not correct. The Supremacy Clause states that federal law made in pursuance of the Constitution is “the supreme Law of the Land, . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Federal laws not passed in pursuance of the Constitution -- that is, unconstitutional laws -- are not part of the supreme law of the land. (See Hamilton's discussion in Federalist 34, noting that Article VI "expressly confines this supremacy to laws made pursuant to the Constitution") (emphasis in original)). So the second sentence, quoting McCulloch, is only right if one reads it to say "the states are prohibited from passing any acts which shall be repugnant to a constitutional law of the United States."
That being so, at minimum I don't see how Missouri's law is a constitutional problem unless the federal laws it targets are in fact constitutional. That is, I don't see how the court can resolve this case against Missouri without reaching the merits of the Second Amendment issue. (On the merits, Missouri's law seems way too broad, but that's a different question.)