MISSOURI SENATE VOTES TO NULLIFY FEDERAL GUN CONTROL 23-10 / SECOND AMENDMENT PRESERVATION ACT - SECTION 1.320)
Activist Post
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.
FRIENDLY FIRE
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.
PENALTIES
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.
STATE CONSTITUTION
Also today, a measure supporters say will work hand-in-hand with SB613 passed the Senate. Senate Joint Resolution 36 (SJR36) proposes an amendment 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.
Source:
The Tenth Amendment Center exists to promote and advance a return to a proper balance of power between federal and State governments envisioned by our founders, prescribed by the Constitution and explicitly declared in the Tenth Amendment. A national think tank based in Los Angeles, the Tenth Amendment Center works to preserve and protect the principle of strictly limited government through information, education, and activism.
http://www.activistpost.com/2014/02/missouri-senate-votes-to-nullify.html
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CURRENT BILL SUMMARY - SECOND AMENDMENT PRESERVATION ACT - SECTION 1.320
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Current Bill Summary |
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SCS/SB 613 - This act modifies provisions relating to firearms. SECOND AMENDMENT PRESERVATION ACT - Section 1.320 This act lists various declarations of the Missouri General Assembly regarding the United States Constitution and the scope of the federal government's authority. In addition, the act declares that federal supremacy does not apply to federal laws that restrict or prohibit the manufacture, ownership, and use of firearms, firearm accessories, or ammunition within the state because such laws exceed the scope of the federal government's authority. Laws necessary for the regulation of the land and the United States Armed Forces are excluded from the types of federal firearms laws that exceed federal authority. This act also declares that the General Assembly strongly promotes responsible gun ownership and condemns unlawful transfers of firearms and the use of a firearm in criminal or unlawful activity. This act declares as invalid all federal laws that infringe on the right to bear arms under the Second Amendment to the U.S. Constitution and Article I, Section 23 of the Missouri Constitution. Some laws declared invalid under this act include certain taxes, certain registration and tracking laws, certain prohibitions on the possession, ownership, use, or transfer of a specific type of firearm, and confiscation orders. The act declares that it is the duty of the courts and law enforcement agencies to protect the rights of law-abiding citizens to keep and bear arms. Under this act, no public officer or state employee has the authority to enforce firearms laws declared invalid by the act. Any person who acts under the color of law to deprive a Missouri citizen of rights or privileges ensured by the federal and state constitutions shall be liable for redress. In such an action attorney's fees and costs may be awarded, and official or qualified immunity shall not be available to the defendant as a defense. It is a Class A misdemeanor under this act for a federal employee to enforce or attempt to enforce firearms laws declared invalid by the act. State law enforcement officers are provided the power to interpose on behalf of law-abiding citizens. The provisions of the section shall become effective either by August 28, 2017, or upon the Revisor of Statutes receiving notification that at least four other states have enacted substantially similar language or upon passage of any federal acts or issuance of federal orders which infringe upon or curtail the right to keep and bear arms, whichever event occurs earlier. OPEN CARRY ORDINANCES - Section 21.750 This act provides that the open carrying of a firearm may not be prohibited by a political subdivision for any person with a valid concealed carry endorsement or permit in his or her possession who presents such endorsement or permit upon the demand of a law enforcement officer. In addition, no person carrying a concealed or unconcealed handgun may be disarmed or physically restrained by a law enforcement officer unless under arrest or if there is no reasonable and articulable suspicion of criminal activity. Any person who violates these provisions may be issued a citation for up to $35. No ordinance of a political subdivision may be construed to preclude the use of a firearm to defend property or persons. SCHOOL PROTECTION OFFICERS - Sections 160.665, 571.107, 590.010 to 590.207 This act allows a school district to designate one or more school teachers or administrators as a school protection officer. School protection officers are authorized to carry a concealed firearm or self-defense spray device. This act requires a school board that is seeking to designate a school protection officer to hold a public hearing on the matter. At the hearing, the school board must specify whether the school protection officer will carry a concealed firearm or a self-defense spray device or both. Notice of the hearing must be provided by publication in a newspaper of general circulation in the city or county in which the school district is located at least 15 days before the hearing. The officer must keep the firearm or device under his or her personal control at all times while on school property. Violation of this provision is a class B misdemeanor and may result in the immediate removal of the officer from the classroom and the commencement of employment termination proceedings. School protection officers have the same power to detain and arrest as any other person would have under current law regarding defense of persons and property. Upon detention, the protection officer must immediately notify school administrators and school resource officers. If the person detained is a student, then the parents of the student must also be immediately notified. Those seeking to be designated as school protection officers must make a request in writing to the superintendent of the school district along with proof of ownership of a valid concealed carry endorsement or permit, if the person is seeking to carry a firearm, and a certificate of completion of a school protection officer training program. The school district must notify the director of the Department of Public Safety of the designation of any school protection officer. The department must make a list of all school protection officers available to all law enforcement agencies. This act requires the Peace Officer Standards and Training Commission to establish standards and curriculum for training of school protection officers. The director of the Department of Public Safety must develop, and make available to all school districts, a list of approved school protection officer training instructors, centers, and programs. In order to attend a school protection officer training program, a person must submit to a criminal history background check and, if the person will carry a firearm, prove he or she has a valid concealed carry endorsement or permit. HEALTH CARE PROFESSIONALS AND FIREARMS - Section 571.012 This act specifies that no licensed health care professional or person under the supervision of the professional may not be required by law to ask a patient whether he or she owns or has access to a firearm, document firearm ownership or access in a patient's medical records, or notify any governmental entity of the identity of a patient based solely on the patient's status as a firearm owner or the patient's access to a firearm. Under this act, licensed health care professionals, their supervisees, and anyone who possesses or controls medical records are prohibited from documenting or disclosing information regarding a person's status as a firearm owner except under certain specified circumstances. UNLAWFUL USE OF WEAPONS AND SPECIAL PROSECUTORS - Section 571.030 This act adds people appointed by the court to be special prosecutors to the list of people who may engage in otherwise unlawful uses of weapons. CONCEALED CARRY PERMITS - Sections 571.030, 571.101, 571.111, & 571.117 Under current law, a person, who is not a member of the United States Armed Forces or honorably discharged from the armed forces, must be at least 21 years of age in order to qualify for a concealed carry endorsement. This act lowers the age to at least 19 years of age. This act makes a concealed carry permit expire on the last day of the month rather than the same day the permit was issued or renewed. Concealed carry endorsements also expire on the last day of the month under this act. This act repeals an obsolete provision of current law that directs concealed carry permit applicants to take the permit they receive from the sheriff to the Department of Revenue for the issuance of an endorsement. Any permit fees required for a concealed carry endorsement are waived for applicants who are disabled veterans. Current law provides that firearms safety instructors may only have 40 or fewer students in the classroom portion of the training required for a concealed carry permit. This act specifies that firearms safety instructors may not have more than 40 students per certified instructor in the classroom. UNLAWFUL POSSESSION - Section 571.070 Under the act, a person commits the offense of unlawful possession of a firearm if the person is illegally in the United States. This act is similar to HB 436 (2013)and SB 352 (2013). MEGHAN LUECKE |
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http://www.senate.mo.gov/14info/BTS_Web/Bill.aspx?SessionType=R&BillID=27723646