SJR36 MAKES FIREARMS OWNERSHIP AN “UNALIENABLE RIGHT”
by Michael Maharrey, The Tenth Amendment Center, ©2014
(Feb. 20, 2014) — A Missouri bill which seeks to nullify virtually every federal gun control measure on the books, “whether past, present or future,” passed the Senate Thursday. SB613 would ban the state from enforcing virtually all federal gun control measures, and includes criminal charges for federal agents attempting to violate the right to keep and bear arms in Missouri.
The measure passed 23-10.
SB613 counts as what could be the strongest defense against federal encroachments on the right to keep an bear arms ever considered at the state level. It reads, in part:
All federal acts, laws, executive orders, administrative orders, court orders, rules, and regulations, whether past, present, or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States I and Section 23 of the Missouri Constitution shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state.
Federal acts which would be considered “null and void and of no effect” include, but are not limited to:
(a) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(b) Any registering or tracking of firearms, firearm accessories, or ammunition which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(c) Any registering or tracking of the owners of firearms, firearm accessories, or ammunition which might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(d) Any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens; and
(e) Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens
The legislation specifically bans all state employees from enforcing or attempting to enforce any acts running counter to the proposed law. Such a tactic is an extremely effective way to stop a federal government busting at the seams. Even the National Governors Association admitted the same recently when they sent out a press release noting that “States are partners with the federal government in implementing most federal programs.”
That means states can create impediments to enforcing and implementing “most federal programs.” On federal gun control measures, Judge Andrew Napolitano suggested that a single state standing down would make federal gun laws “nearly impossible to enforce” within that state.
James Madison, the “Father of the Constitution,” advised this very tactic. Madison supplied the blueprint for resisting federal power in Federalist 46. He outlined several steps that states can take to effective stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Madison called for “refusal to cooperate with officers of the Union” as a way to successfully thwart federal acts.
The bill passed despite strong opposition from the law enforcement community. According to a Report from the Institute of Justice, Missouri law enforcement cashed in to the tune of $34,462,153 in forfeiture from 2001 to 2008. They only get this money if they do the bidding of the federal government.
The NRA also came out against the legislation due to a proposed amendment. Anti-gun Senator Jamilah Nasheed added language requiring gun owners to report a stolen firearm to police no more than 72 hrs after the discovery of the theft. The NRA claimed the amendment also included penalties.
“Those who are unable to report a lost or stolen firearm within this arbitrary amount of time, would be subject to penalties including: a $1,000 fine, Class A misdemeanor and the loss of their Right to Carry Permit.”
But the actual text of the amendment included no such language. (read it here)
Bill author Sen. Brian Nieves and Nasheed agreed to reconsider and the amendment was removed earlier this week, removing the source of NRA opposition.
In what many legal experts consider a controversial move, the Missouri bill also includes criminal charges for any federal agent who violates the state law. Under the law, state and local law enforcement would have “discretionary power” to determine determine if they will press charges. Inside sources say this was done to alleviate concerns from Missouri Law Enforcement organizations who actively lobbied against the effort in 2013, citing a requirement to arrest “federal law enforcement partners in the field” as a primarily concern.
While constitutionally valid within the original understanding of the Constitution, “legal experts” and federal courts won’t likely support this provision. Even so, every bill in Missouri is severable. That means if a court finds part of it unconstitutional, the rest remains. And the main provision calling on the entire state to stop enforcing federal gun control measures stands on solid legal ground under the anti-commandeering doctrine. Court precedent going from 1842 to 2012 holds the feds simply cannot require state to help them violate your rights. And the feds don’t have the manpower to do it themselves.
Also today, a measure supporters say will work hand-in-hand with SB613 passed the Senate. Senate Joint Resolution 36 (SJR36) proposes an amendment to the Missouri state constitution with text obligating the state government to uphold the right to keep and bear arms. It passed the Senate today by a vote of 29-4. If passed by the House, it will go to Missouri voters for approval this fall.
According to Missouri First, as a constitutional amendment to the Missouri Constitution’s existing Article I, Sec. 23, SJR 36 does these things:
- Elevates the right to keep and bear arms to “unalienable rights” status. While you and I would and should maintain that a “right is a right”, the courts don’t look at it that way. The courts give more weight to some constitutional rights than others. Government actions infringing on what they consider lesser rights are not scrutinized as closely as the “weightier” rights. For example, when a citizen claims his rights are being violated by some law, the courts can “test” the law against two basic standards of review. The least strict standard is often referred to as the “Rational Basis Test”, and the tougher standard — the one that best protects your rights — is the “Compelling State Interest Test”.
- The Second thing SJR36 does is “obligate” the state to protect the right to keep and bear arms from all infringements — including those from the federal government. Coupled with the “unalienable” provision, this clause will also help to defend any bills like SB613 to nullify unconstitutional federal gun control laws if those bills are challenged in state courts. This is an important provision that helps to empower state nullification of unconstitutional federal edicts.
- It adds “ammunition and accessories” as explicitly constitutional protected. And adds the phrase “any restriction on these rights shall be subject to strict scrutiny” to the state Constitution. This phrase reinforces the concept in (1), above, which is a tremendous help in keeping the courts from redefining our gun rights.
SB613 and SJR36 now move on to the state House, where it will first need to pass out of committee before the full House can consider it.
Sharon Rondeau has operated The Post & Email since April 2010, focusing on the Obama birth certificate investigation and other government corruption news. She has reported prolifically on constitutional violations within Tennessee’s prison and judicial systems.