WHAT OTHERS SAY: Missouri lawmakers can stand against gun bill or against Constitution

Saturday, September 7, 2013 | 3:24 p.m. CDT

On Tuesday, Attorney General Chris Koster gave members of the Missouri General Assembly a lesson in the law. In a four-page memo distributed to every lawmaker, Mr. Koster, a Democrat, described in detail the unintended consequences of House Bill 436, the so-called Second Amendment Preservation Act, which seeks to nullify more than a century of federal gun laws. Gov. Jay Nixon vetoed the bill, but lawmakers plan to try to override that veto when they return to the Capitol next week.

Mr. Koster believes, as we do, that the bill will surely be declared unconstitutional by the federal courts. No serious scholar or attorney would see any other option. States cannot simply ignore the U.S. Constitution.

But Mr. Koster raises the possibility that the courts are likely to toss the sections that nullify federal law, while allowing to stand some portions of the bill that legally, but badly, change state policy. That would leave Missouri’s law enforcement community in quite a difficult situation.

For instance, Mr. Koster notes, the bill:

• Limits the ability of city, county and state law enforcement officials from serving on joint state and federal task forces. You want to stop meth sales in your community? Too bad. Stop sales of weapons to illegal immigrants? Can’t do it. There’s actually not a state law against that, Mr. Koster points out. It’s a federal law, and under House Bill 436, state troopers or county sheriffs or city police officers would be breaking the law themselves for merely trying to enforce any aspect of federal gun law.

“What is a state trooper to do if he or she comes across a felon who has sold guns to a group of illegal immigrants?” Mr. Koster asks. “By enacting subsection 5, the General Assembly will make it unlawful for a state trooper to even refer the seller to federal prosecutors.”

• Allows criminals to sue cops. This one is a real eye-opener, especially when you consider how much Missouri Republicans like to criticize trial lawyers. The law creates a new cause of legal action for any Missourian who is the subject of an attempt to enforce federal gun law. The motivation here is clear: Some Republicans are convinced President Barack Obama is coming for their guns. This law would allow them to sue any “out-of-control” law enforcement officer (such as Attorney General Eric Holder) who attempted to get their guns. But as Mr. Koster points out, the more likely scenario is this one:

“When a police officer from the City of St. Louis recovers a fully automatic machine gun from a drug dealer’s car, should the matter no longer be sent to the U.S. Attorney’s Office because the federal Gun Control Act of 1934 outlawed the weapon?” Mr. Koster wrote.

If the portions of House Bill 436 that merely expand state civil law while restricting state police power become law, as is plausible, that drug dealer will have a right to sue the cop for daring to take his machine gun. And he’ll win.

Is this what Missouri Republicans, and the few skittish conservative Democrats who voted for the bill, really want?

Mr. Koster’s legal analysis is not partisan. It simply takes the plain wording of the bill, separates it from the emotion of the gun debate, and applies the portions of the law that might survive a federal challenge to real-world situations.

State Rep. Jay Barnes, R-Jefferson City, who is also an attorney, reached the same conclusions during the legislative session and cast the sole Republican vote against the bill.

What’s astounding is that the three most prominent attorneys in the Republican caucus — Speaker of the House Tim Jones, R-Eureka, and Sens. Eric Schmitt of Glendale and Kurt Schaefer of Columbia — didn’t reach the same conclusion. Our guess is they did but chose to ignore logic, knowing the bill would be tossed in federal court.

To them, Mr. Koster’s letter raises the stakes.

What if only parts of the law are tossed?

Of course, voting to criminalize the efforts of federal law enforcement agents should be bad enough on its face.

We wonder, though, what will Republicans say in the race for governor in 2016, if former U.S. Attorney Catherine Hanaway is their standard-bearer, as some have surmised she will be? Will they continue to suggest she should be a criminal for the numerous federal gun laws she enforced, particularly when their candidate or candidates for attorney general have voted for House Bill 436?

Will Ms. Hanaway, as a gubernatorial candidate, have to go back on this statement issued after she obtained a conviction of John V. Kessler of St. Louis for illegal firearms sales, including machine guns:

“This case sends the message that illegal firearms sales on the Internet, particularly by a convicted felon, will be vigorously prosecuted in this district,” Ms. Hanaway said then.

Do Missouri Republicans really want to make a criminal out of their next candidate for governor?

Mr. Koster didn’t ask that question in his letter, but, as the likely Democratic nominee for that seat, we have no doubt he’d welcome that discussion.

The most important sentence in Mr. Koster’s letter didn’t come from him, but a footnote in the U.S. Supreme Court’s 1958 Cooper vs. Aaron anti-nullification case. That’s the case in which the court unanimously ruled that the state of Arkansas couldn’t stop the “Little Rock Nine” from attending Central High School. It’s the case that more than any other is cited by the courts in ruling that “nullification” is unconstitutional.

Here’s the key sentence:

“No state legislator or executive or judicial officer can war against the constitution without violating his undertaking to support it.”

Missouri lawmakers can stand against House Bill 436, or they can stand against the U.S. Constitution.

They can stand with drug dealers, or they can stand with cops.

They can frame their law degrees, or take a match to them.

They can stand with a Republican U.S. attorney who prosecuted gun crimes, or they can call her a criminal.

Let the veto of House Bill 436 stand. It’s the only choice.

Copyright St. Louis Post-Dispatch. Reprinted with permission.

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