Republican Senator Says Missouri Can't Really Ban All Federal Gun-Control Laws In Advance

sen-kurt-schaefer.jpg
via
Sen. Kurt Schaefer.
Update below: Republican State Senator Kurt Schaefer is a big believer in the Second Amendment and has even proposed a constitutional amendment in Missouri that would make the right to bear arms even stronger. But that doesn't mean he's a huge fan of a pro-gun bill that has earned Missouri national attention: a proposal to block the enforcement of federal gun control in the state.

"You can't make a blanket statement that you are going to disregard all federal [gun-control] laws," Schaefer, a GOP senator from Columbia, tells Daily RFT. "Just because you have the right to bear arms...doesn't mean the government can't do anything."

Last week, the Missouri legislature sent the bill to block federal gun policies in the state to the governor's desk, and Schaefer -- like vocal Democrats in the state and across the country -- seems to think it's not the most logical idea at the capitol this session.

See also:
- Did Tribune Print Threat to Kurt Schaefer? "I Will Duel Him Until His or My Death"
- Kurt Schaefer Wants Constitutional Change to Make Right to Bear Arms Stronger
- Gun Control Dems Slam GOP Rep's Joke About Armed Sheriffs Watching (AUDIO)

The argument from supporters of this bill is that if Barack Obama puts forward executive orders on gun control that violate the Second Amendment, a state like Missouri should be able to make it a crime to enforce these policies here -- because they are unconstitutional.

Critics of that policy, however, say that this is an attempt at nullification and that states can't just reject federal laws. MSNBC's Rachel Maddow even devoted a portion of her show last week to this proposal, saying, "They passed a bill that would ban all federal gun laws in Missouri. No, you can't really do that, but they passed a law that would do it."

And Schaefer, despite his strong gun-rights advocacy, says he recognizes that some of these criticisms are legitimate.

"You can't in advance make a blanket statement that we won't follow some class of regulation," he says, noting that the right to bear arms does not mean there can be no regulatory laws whatsoever.

Casey Guernsey gun.jpeg
via Facebook
Casey Guernsey, Missouri legislator who pushed for the bill to block federal gun control.

He says that he strongly supports efforts to protect the Second Amendment, but adds that challenges to unconstitutional policies must be specific.

"Sometimes people want to send a message to the federal government," he says. "The legal reality is you have to take every situation as it comes.... Is this legal or not?"

"People are passionate about this on both sides," he says.

Schaefer argues that he thinks his pro-Second Amendment bill -- Senate Joint Resolution 14 -- is a more logical approach.

If passed, his bill would then require direct support from voters through a measure on the ballot in an upcoming election because it would be a revision to the state constitution.

The change in language in his bill would establish that the right to bear arms is "unalienable," and that the state of Missouri "shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement."

Schaefer says it would give voters the opportunity to "tell elected officials that it is their obligation to uphold this right."

His proposal -- which he hopes will get final approval this last week of the session -- is not a nullification effort, he says. Instead, if approved by voters, it would establish that when there are disputes regarding gun policies, it is "incumbent upon elected officials to do that analysis and find in favor of individual rights," he explains.

Update, 10:12 a.m.: A reader points out that Schaefer did in fact vote in favor of this bill, which we should've noted in our original report:


Here's the bill that passed last week, followed by Schaefer's constitutional amendment proposal.

HB436

Senate Joint Resolution 14

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17 comments
teebonicus
teebonicus

"[T]he right to bear arms does not mean there can be no regulatory laws whatsoever."

That's not what the Second Amendment says. It says that the right "shall not be infringed", and a regulation is an infringement.

That case law has permitted the government to ignore this facially succinct proscription does not mean that the government's actions have been legitimate. Even Justice Scalia, an originalist stalwart, has rationalized in his majority Heller opinion that (paraphrased) "Well, it doesn't mean that there can't be ANY regulations at all!"

Justice Scalia, as much as I respect your intellect and dedication to original meaning and intent, I believe you are misguided on this point. To argue that the Framers (who were superior wordsmiths) would pen such a clear and concise proscription and then wink and whisper behind their hands that "Hey, well, that's not REALLY what we meant to say." is, in your words, "worthy of the mad hatter".

I'm sorry Mr. Justice, but it just doesn't pass the smell test.

Clyde Rhoads
Clyde Rhoads

Richard, it is possible. Under the 10th amendment of the constitution. There are plenty of state laws around the entire country that contradict federal law. Firearms are just a hot topic right now, and it's a shock that this move is being made shortly after gun control bills lost in the US Senate.

Jeffrey Houska
Jeffrey Houska

Richard have you even read the supremacy clause.

Margaret Booker
Margaret Booker

Rep. Schaefer is trying to pull his punches now!?! After trying to hold MO Department of Revenue budget hostage. After stirring conflict with our Governor, a Democrat. Dirty, dirty partisan politics. He can't have it both ways.

Richard Griffin
Richard Griffin

federal law supersedes state law so I don't see how its even possible

Mark Bland
Mark Bland

well of course...its the Legal Marijuana states situation all over again . You can smoke and carry in those states, but if you buy or sell, its still illegal cause federal law trumps it. They are conservatives... they always need something to complain about, cause if no one is taking any of their freedoms, then their life is just normal like it always is and they hate getting exactly what they want... I like to say that regressives have a lot of "first world problems"

newpoles
newpoles

 This is the climax of our civilization, the fall of the concepts that devastated America. The faulty logic of management over principals. "...shall not be infringed." makes it clear the right is an absolute, as all rights are. See Thomas Aquinas on the subject. 

All living creatures have a right to life, and therefor, a right to self-defence. 

For Humans, that means the right to keep and bear arms. It also means we can keep the government honest...by killing tyrants. 

Chad
Chad

While correct, we cannot nullify federal laws with state laws, I wonder two things:

1) Did Rachel Madow (who I like btw) dedicate a similar rant to states passing marijuana legalization laws that attempt to nullify federal laws in that area? I doubt that she did, considering her politics. It's a direct analog, however. 


2) Are federal laws which over-reach on the commerce clause legal? Can you make a law which violates the constitution? No you cannot. Where that line is, is up to the  SCOTUS ultimately in so far as law enforcement is concerned. Even the SCOTUS is split on such things and are known to flip flop from court to court. My position is the commerce clause is absurdly abused. If the people feel there is a need for such sweeping federal laws, they need to pass a constitutional amendment to accommodate such authority. 

olbins24
olbins24

@teebonicusYou got that right. The Second Amendment actually prevents Congress and the States from any oversight over it. There is nothing at the end the Amendment which says: Congress and the State or Congress or the States shall have power to enforce this provision of this Amendment with appropriate legislation". It was left exclusively to the people.

olbins24
olbins24

@teebonicus 

You got that right. The Second Amendment actually prevents Congress and the States from any oversight over it. There is nothing at the end the Amendment which says: Congress and the State or Congress or the States shall have power to enforce this provision of this Amendment with appropriate legislation". It was left exclusively to the people.

teebonicus
teebonicus

@Richard Griffin - It does if it's "made in pursuance thereof", i.e. according to constitutional limitations and proscriptions.

The liberals take a lot of latitude in presuming that whatever they wish to do is covered by the Commerce Clause. I would point out that amendments are after-the-fact alterations to delegated powers. Since the Second Amendment altered government powers in clear proscriptive language, it in fact supersedes any Commerce Clause exercise of regulatory powers viz the right to arms. It supersedes ALL delegations of power in the Constitution proper viz the right to arms by its mere existence.

Hence, the supremacy clause argument is not only not a slam-dunk, it is, literally, facially specious.

Chad
Chad

@Richard Griffin 

Just like it's possible to have Marijuana dispensaries in California, Colorado and other places.

Legal gray area. Conceptualized and implemented by liberal hippies. Now, Imitated by gun loving red-necked conservatives. 

I wonder who will be the first to step up in one of the '2nd Amendment Preservation Act' states and start engaging in unregulated commerce of items that are considered to be National Firearms Act items? That's going to take some serious balls to do. 

Somehow, I doubt the DOJ/ATF will take the same tact the DOJ/DEA has taken with Marijuana. It will be interesting to see.

One way to look at this is this: Hippies and Rednecks unite in telling the federal government to bugger off.... they are overstepping and it is not appreciated. Is there some common ground afterall?






Chad
Chad

@Mark Bland 

You misunderstand the  Legal Marijuana States issue. You cannot smoke, carry, possess, buy or sell in those States under federal law. Period. The DEA or any other federal agent can bust your ass, you are still breaking the federal law. You can be tried and convicted in a federal court, and people have been. 

However, the state's laws make the possession and commerce in marijuana legal under those state's laws. So you cannot be charged by the state. That does not change the fact that it is still illegal on a federal level. So you are in a gray area, if you will, in that you can be busted at any time by the feds. 



teebonicus
teebonicus

@Chad - It is not correct without the following caveat: We cannot nullify federal laws MADE IN PURSUANCE OF CONSTITUTIONAL DELEGATIONS AND LIMITATIONS.

The supremacy clause cannot color federal laws that do not meet these criteria.

Chad
Chad

 @teebonicus 

Conceptually I agree with you. But the reality on the street is that the SCOTUS has spoken and real people go to jail over federal laws that derive their powers from the Commerce Clause. 

You have to seek to overturn that reality, rather than seeking to overturn any law. 






teebonicus
teebonicus

@Chad @teebonicus - Or, give the SCOTUS as many opportunities as necessary to address its error.

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