Dave Roland Who Helped Draft GOP Gun Bill Says Missouri Has A Right to Block Feds

Courtesy of Roland
Dave Roland.
In announcing his veto of Missouri's Second Amendment Preservation Act, Governor Jay Nixon, a Democrat, argued that the state can't simply pass a law directly violating the United States Constitution. The proposal in question was a controversial effort to ban the enforcement of federal gun policies in Missouri -- legislation that GOP leaders may now try and pass with an override of Nixon's veto.

Since then, Daily RFT got a chance to speak with Dave Roland, a former Missouri attorney and political activist who helped craft the legislation in question. Roland argues that critics of the bill -- who say it is a clear violation of the Supremacy Clause -- don't understand the Constitution. In fact, he says, states do have a right to take a stand against the federal government in this exact manner.

"It can actually be effective when a group of states get together and say we are not going to tolerate it," Roland says. "I want to see states stand up for themselves and say we are not okay with this, particularly when it comes to the exercise of our constitutional freedoms."

See also:
- Brian Nieves' Facebook Rant: Governor Is "B____ Slapping" Constitution
- Does Missouri Have "Most Extreme" States' Rights Push? Gun Law Ban Scrutinized
- Jay Nixon Vetoes Bill To Block Federal Gun Laws, Signs One Expanding Gun Rights

The legislation, House Bill 436, introduced in the context of federal gun-control efforts, "rejects all federal acts that infringe on a Missouri citizens' rights under the Second Amendment of the United States Constitution." It would thus criminalize law enforcement officers -- even federal ones -- who attempt to enforce a federal law in Missouri that could be interpreted as an infringement on the right to bear arms.

Governor Jay Nixon, right.

Nixon's lengthy veto message (announced in a press release that listed his record on gun rights and pro-Second Amendment efforts) included background on the Supremacy Clause, saying, "Of course, an individual state is not empowered to determine which federal laws it will comply with, nor is it empowered to declare a federal act to be unconstitutional.... The doctrine of supremacy is as logically sound as it is legally well-established."

Nixon pointed out that nullification efforts have consistently failed in the courts and said, "House Bill No. 436 seeks to turn the hierarchy of our national framework of laws on its head..."

The veto of this bill, labeled one of the most extreme states' rights efforts in the country, prompted passionate backlash from some Republican lawmakers.

Roland, who was formerly the director of litigation at the Freedom Center of Missouri, a libertarian law firm, tells Daily RFT that he recommended the central philosophical language of the bill regarding constitutionality (roughly section 2, 1-8, on the first three pages).

"The Supremacy Clause says that federal laws are supreme as long as those laws are consistent with the Constitution," Roland, who is now the director of the Theodore L. Stiles Center for Liberty in Washington State, says. "The argument from the perspective of the General Assembly here would be that Congress simply does not have the Constitutional authority to create these gun control regulations."

He continues, "Gun control is not rightfully an exercise of Congress' commerce power."

Roland says that lawmakers approached him last year seeking his input on this legislation in the wake of the mass shootings that sparked President Barack Obama into action.

"They knew there was probably going to be a nationwide push to roll back some of the rights of self defense," he says. "So they asked me to consider some language that would kind of support or bolster an effort to make sure that Missourians were going to continue and enjoy their rights."

via Facebook
Cartoon of Nixon posted by his critics after he vetoed the Second Amendment Preservation Act.

He says he borrowed heavily from Thomas Jefferson and James Madison (a point that Nixon directly addresses in his veto message).

The language Roland recommended says, in part:

Whenever the federal government assumes powers that the people did not grant it in the Constitution, its acts are unauthoritative, void, and of no force;...

The several states of the United States of America are not united on the principle of unlimited submission to their federal government. If the government created by the compact among the states were the exclusive or final judge of the extent of the powers granted to it by the Constitution, the federal government's discretion, and not the Constitution, would be the measure of those powers. To the contrary, as in all other cases of compacts among powers having no common judge, each party has an equal right to judge itself, as well as infractions of the mode and measure of redress.

Roland argues that states should pass these kinds of measures to push back against an overreach of the federal government.

"The real importance of something like this is trying to show how serious the state officials are in ensuring that they are going to protect the rights of their citizens," he says. "We really intend to make sure that our citizens' rights are protected, so watch your step."

He says states can and should refuse to enforce a federal law that is unconstitutional and that this can enact change (He cites "personal liberty laws" passed by U.S. states in the north to counter Fugitive Slave Acts).

"The idea of a bill like the Second Amendment Preservation Act is not to take this congressional law off the books, but rather it's almost a form of collective civil disobedience," he says.

He says he wants to see legislators override the veto, though admits that there are some problems with the bill, notably that one section -- that he says he had nothing to do with -- violates the First Amendment by criminalizing the publishing of gun owners' names.

In response to criticisms that this legislation would very likely cost Missouri a lot of money in legal battles with the federal government, Roland adds, "It's never a waste of money if someone is defending constitutional liberty."

Here's a copy of the bill and Nixon's full veto message.

HB 436

HB 436 Veto

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Great article David and your words as reflected in the bill makes me proud of our state as I am proud of our legislators who voted for it.  We need to all stand together on this keep our freedom; with our wallet or at the border if need be. 


So long as this "nullification" stuff remains empty rhetoric, it boils down to: "Missouri says these federal laws are unconstitutional! so there!"  I can't say where Dave Roland has said much more in defense of the Missouri approach. It's safe so long as it remains mere political gamesmanship.

However, there is ONE provision that has NOT come up yet, and it will case MAJOR problems and force a more serious issue. (Civil war is a serious matter indeed.) That provision reads: "Any official, agent, or employee of the United States government who enforces or attempts to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section is guilty of a class A misdemeanor." I'm relying on this source: http://www.house.mo.gov/billtracking/bills131/biltxt/senate/1204S.04C.htm

I'm imagining what happens when a Missouri sheriff tries to arrest that FBI agent for doing his job. Let us hope it remains peaceful up front. Then a federal judge can make short work of that Missouri provision the very next day.

Meanwhile, a hard question for the "nullify-ers." Does the Constitution mean the same thing in every state? If so, how can a federal law be unconstitutional per Missouri and constitutional per Illinois? Such a legal doctrine is absurd. It's no wonder that James Madison called this nonsense (from John C. Calhoun) "a contradiction in terms" and "a fatal inlet to anarchy."

Margaret Booker
Margaret Booker

Lobbyist lobby, governors lead. Good use of veto, Governor Nixon.


Thanks, Sam, for taking the time to speak with me the other day and for making the effort to understand the deeper philosophy behind bills like this.  I wanted to touch on a couple of points that didn't make it into the article, but that I think are useful when thinking about issues like this.

The first point is that the question of states pushing back against federal laws is a totally non-partisan issue.  Many states, both red and blue, have in recent years decided that the federal government has simply overstepped its proper bounds on one issue or another.  And, although many of these states did not clearly lay out the political philosophy undergirding their efforts, they passed laws that plainly rejected federal authority in certain areas.  For example, federal law makes the use of marijuana a crime, but 18 states and the District of Columbia have decided that Congress should not have the final say on this issue and that they will allow their citizens to use that drug as long as they follow state-established guidelines.  An even more blatant example is the states' reactions to the REAL ID Act that Congress passed several years ago; at least nineteen states passed laws or resolutions refusing to comply with the law and, as a result, the federal government has never been able to implement it.  In short, it's clear that people across the political spectrum agree that there must be some limits on Congress's authority - they just have differences of opinion as to exactly where those limits are found.

Another vital point is that the U.S. Constitution itself marks limits on Congress's authority.  What Governor Nixon failed to grasp is that, in addition to the fact that the Supremacy Clause only applies to federal laws that are consistent with the limited powers the people granted to the U.S. Government, that clause is further modified by the Ninth and Tenth Amendments to the U.S. Constitution.  The Ninth Amendment states that the people retain unenumerated rights that can be enforced against the federal government; the Tenth Amendment says that the states (or the people) have reserved to themselves powers not delegated to the federal government.  These provisions were included in the Bill of Rights precisely because the people considering ratifying the U.S. Constitution were concerned that, due to the nature of government power to expand and increase control over citizens' lives, the new government they were creating would eventually overstep its proper boundaries.  

In the estimation of the lawmakers who passed the Second Amendment Preservation Act, that is what Congress did when it began regulating citizens' ability to possess and use firearms.  Regulation of the possession and use of firearms has historically been a matter for the state governments, and it is a subject treated in every state constitution - including Missouri's state constitution.  It is clear that the U.S. Constitution grants Congress the authority to regulate the interstate traffic of firearms, but when it comes to weapons maintained and used within the boundaries of one state, that is a matter that the Tenth Amendment places in the hands of the states.  This doesn't mean, of course, an end to all gun regulations.  It means that the state legislature is responsible for crafting such regulations.  The state legislature will be guided in that task by the rights secured under the Second Amendment and Article I, section 23, of the Missouri Constitution, and they will also be held accountable by their voters for the laws they create - or fail to create, as the case may be.

Finally, I want to reiterate that it is absolutely the proper role of the state government to take action to secure citizens' constitutional liberties.  In fact, Article I, section 2, of the Missouri Constitution says that it is the "principal office of government" to secure citizens' natural rights.  As states all over the country have realized, it is dangerous to allow our federal government to wield unchecked power over citizens.  People may disagree about which federal policies are the most concerning, but the bottom line is that the best opportunity for preserving the freedoms on which our nation was established is for citizens to take a stand (either individually or, as with the Second Amendment Preservation Act, collectively) to say, "We will not accept laws that reach beyond the government's proper authority."  This sort of civil disobedience can be a powerful political tool, just as it was when many free states passed "personal liberty laws" that rejected the federal Fugitive Slave Acts, when conscientious objectors refused to serve in the military, and when civil rights advocates willfully disobeyed unjust, racist Jim Crow laws. 


These conservative jokers will not be happy until the South rises again.

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