Mark and Patricia McCloskey
Armed homeowners Mark and Patricia McCloskey, standing in front their house along Portland Place confront protesters marching to St. Louis Mayor Lyda Krewson's house in the Central West End of St. Louis on June 28, 2020. (Laurie Skrivan/St. Louis Post-Dispatch via AP File)

Missouri last month joined a growing cohort of red states moving to block firearms regulation by the federal government. The Second Amendment Preservation Act, signed by Republican governor Mike Parsons on June 12, bars state and local police from cooperating with any federal gun legislation that differs from state law.

These laws are the product of the “Second Amendment sanctuary movement,” a conservative anti-gun-control answer to the liberal “sanctuary cities” movement to protect undocumented immigrants from deportation by federal authorities. The reasoning is that if, say, California can pass the 2017 California Values Act, which restricted the use of state and local resources in support of U.S. Immigration and Customs Enforcement, then Missouri can move to restrict use of state and local resources to support federal laws regulating gun ownership.

The Second Amendment sanctuary movement is “just stealing the language that sanctuary cities use,” Bryan Kibler, state’s attorney in rural Effingham County, Illinois, told the Associated Press in 2018. Kibler is credited with inventing the term “Second Amendment sanctuary” when the county declared it would not comply with new gun regulations passed in Springfield. Leo Biasiucci, an Arizona state representative who authored that state’s Second Amendment Preservation Act, told me that he based his bill’s language quite deliberately on that of the California Values Act. The Trump Justice Department tried and failed to overturn that law in court.

But Missouri’s “sanctuary” law takes matters a few steps further. Unlike similar bills passed this year in Arizona, Arkansas, Idaho, Montana, North Dakota, Tennessee, West Virginia, and Texas, the Missouri law empowers the state’s residents to sue for $50,000 state and local police that violate it (for example, by confiscating an assault weapon under a hypothetical federal ban). This last provision in particular raises serious questions about whether the Second Amendment Preservation Act will hold up in court. The Biden Justice Department has already declared it unconstitutional.

“It quite literally defunds the police and gives that taxpayer money to convicted criminals,” Missouri House Democratic Leader Crystal Quade said after the bill passed. There was little that Quade and other Missouri Democrats could do to block it, because the GOP has the governorship and supermajorities in both houses of the state legislature.

The sanctuary cities movement opposing deportations and the Second Amendment sanctuary movement opposing gun laws are both rooted in a legal principle called the anti-commandeering doctrine. This doctrine holds that the federal government can’t compel state governments to enforce federal laws on its behalf.

But there’s an important difference between the two movements. The California Values Act and other state and local sanctuary policies were passed during a tangible federal crackdown on undocumented immigrants. During Trump’s first year in office ICE arrests rose by 30 percent.

“It was very clear that this administration was going to pursue aggressive action as it concerns immigration, and so there was sort of a very immediate need to establish something structurally at the statewide level,” Sandhya Nadadur, Policy Analyst for Detention & Deportation at the California Immigrant Policy, told me.

The Biden Administration has taken no comparable action on gun control.

In April, the White House announced a series of executive actions aimed at curbing gun violence, including restricting ownership of homemade “ghost guns” and regulating arm braces that can make semiautomatic pistols more accurate and deadly. These reforms “are tinkering on the extreme edges of gun law,” Adam Winkler, a law professor at the University of California Los Angeles told me, “and Missouri is like, ‘you’re coming to take our guns, we have to act now.’ It’s absurd.” Any ambitious proposal to enact gun control, such as a revived assault weapons ban, will need to pass Congress, and given its current configuration, that’s pretty unlikely.

Second Amendment sanctuary laws put blue cities inside red states in a bind. Missouri experienced its worst year on record for gun violence in 2020, with 689 people shot and killed. The state’s per-capita gun death rate was the country’s third highest, behind only Louisiana and Mississippi, with the worst violence concentrated in Missouri cities.

Three days after the Missouri bill became law, the mayors of St. Louis and Kansas City, Missouri added their names to a letter from the United States Conference of Mayors urging President Biden to push for universal background checks and a federal assault weapons ban.

But there’s little more that they can do, because Missouri, like most U.S. states, has a preemption law that blocks regulation of gun use or possession at the local level. It’s a “complete attack on local democracy,” according to Jennifer Pomeranz, an assistant professor of public health policy and management at NYU School of Global Public Health. In a recent study Pomeranz co-authored on gun law preemptions, she found that most states that preempted local gun laws took little or no action to regulate guns themselves.

State preemption laws drew some attention earlier this year in Colorado after a court, citing that state’s preemption law, overturned the city of Boulder’s ban on assault weapons, high-capacity magazines, and bump-stock devices. Less than two weeks later, a man used an assault weapon to kill 10 people in a Boulder supermarket. That prompted the state legislature to repeal its preemption law and go back to allowing cities to pass their own gun control measures.

But red states are moving in the opposite direction. Florida recently bolstered its preemption law by allowing lawsuits against “unwritten” local policies that violate it. Last month, the Pennsylvania House of Representatives passed a bill that would compel cities and towns that implement preempted gun restrictions to pay the court costs incurred by citizens who challenge them.

In their study, Pomeranz and her colleagues found that punitive state preemption laws— the type that not only prohibit local action on gun control but allow local officials to be sued for violations— proliferated during the past decade, from two in 2009 to 15 in 2018, including Arizona and Texas.

On June 21, the city of St. Louis and St. Louis County filed a joint lawsuit against the state of Missouri, asking that the Second Amendment Preservation Act be struck down as unconstitutional under both the state and U.S. Constitutions.

The lawsuit claims that the new law “will chill law enforcement officers from protecting the communities in which they serve and will deter individuals from a career in law enforcement.” It cites the decision of a police chief in suburban St. Louis to resign over concerns about the new law’s potential for “unintended consequences”. Missouri State Rep. Jered Taylor, who sponsored the bill, dismissed the chief’s resignation as “an easy way to make some headlines.”

Kevin Merritt, president of the Missouri Sherriff’s association, recently told NPR that many of his organization’s members worry that the law “opens them up so much for liability based on unknown circumstances.”

Relationships between state police and federal authorities are already feeling the strain. At least two police departments in Missouri pulled officers from assignments with the Bureau of Alcohol, Tobacco, Firearms and Explosives, and the Missouri State Highway Patrol suspended its participation in an ATF task force.

The St. Louis lawsuit argues that the Second Amendment Preservation Act violates the U.S. Constitution’s supremacy clause, which says that the states are bound by federal laws, and shows “disregard for the separation of powers by imposing duties upon the judicial branch.”

The courts have recognized the anti-commandeering doctrine in gun control cases before.  In 1997, the Supreme Court ruled in Printz v. United States that the federal government could not require county sheriffs to enforce the Brady Handgun Violence Prevention Act by performing background checks on prospective handgun purchasers.

“We’re not saying that federal law enforcement can’t come in the state and enforce federal law,” Taylor told me. “We’re just saying that our resources aren’t going to be used for it.”

But the anti-commandeering doctrine doesn’t apply to state courts, which are required to uphold both state and federal law. That’s a problem for Missouri’s Second Amendment Preservation Act because it compels courts to enforce noncompliance with federal law by awarding damages to residents of the state who have federal gun laws enforced against them by state and local officials.

“It’s perfectly constitutional for a state to decide its officials will not cooperate with federal immigration law, or federal gun laws or federal marijuana laws,” Jonathan Adler, a law professor at the Case Western Reserve University School of Law, explains. “But insofar as any of those laws are relevant in judicial proceedings that arise in those states, state court judges are required to give the relevant federal laws their full effect in those court proceedings just as in a federal court.”

Arizona is seeing its own version of the conflict begin to play out. In June, the Tucson City Council passed a resolution that keeps city gun laws in line with federal ones, and empowers the Tuscon City Attorney to enter into litigation to defend the city’s gun policies. “It was explicitly to engage at a federal level litigation to get these things thrown out,” Tucson City Council Member Steve Kozachik said. That Arizona state legislators assert their right to make their own gun policy while denying that right to cities strikes Kozachik as a “cascade of hypocrisy.”

“You hear these guys talk about states’ rights, and telling the federal government, ‘don’t dip your pen in our ink,’ ” he said. “And they use as a reason for justifying that [the idea that] the level of government that’s closest to the people is the one that ought to be making the decisions.” Then, he said, they turn around and say, “’well, we know better than you in the local jurisdiction, so we’ll preempt your local ability to legislate’…. We’re not going to be intimidated.”

Alex Dalton

Follow Alex on Twitter @1AlexDalton. Alex Dalton is an editorial intern at the Washington Monthly.