Missouri Amendment 5 - M855 safe?

[wow6599]

Last fall, Amendment 5 passed (overwhelmingly) in Missouri. This amendment is supposed to prevent enforcement of federal laws that violate the 2nd amendment. I know other states have similar laws in place, and my question is simple - could these state laws be used to ignore the ATF if the M855 ban goes through?

I'm not well versed in constitutional law, and I really can't see if 'ammo' would fall in to the wording of this law.

Anyone?

HOUSE BILL NO. 436

97TH GENERAL ASSEMBLY





INTRODUCED BY REPRESENTATIVES FUNDERBURK (Sponsor), JONES (110), BURLISON, HICKS, RHOADS, ROSS, MILLER, PARKINSON, REMOLE, ANDERSON, HURST, BAHR, BROWN, SMITH (120), KOENIG, CURTMAN, DUGGER, MORRIS, SOMMER, LEARA, GATSCHENBERGER, BRATTIN, SCHIEFFER AND KORMAN (Co-sponsors).

1204L.01I D. ADAM CRUMBLISS, Chief Clerk



AN ACT

To amend chapter 1, RSMo, by adding thereto one new section relating to the Second Amendment preservation act, with a penalty provision.


Be it enacted by the General Assembly of the state of Missouri, as follows:

Section A. Chapter 1, RSMo, is amended by adding thereto one new section, to be known as section 1.320, to read as follows:

1.320. 1. This section shall be known and may be cited as the "Second Amendment Preservation Act".

2. The general assembly finds and declares that:

(1) The general assembly of the state of Missouri is firmly resolved to support and defend the United States Constitution against every aggression, either foreign or domestic, and the general assembly is duty-bound to watch over and oppose every infraction of those principles which constitute the basis of the Union of the States, because only a faithful observance of those principles can secure the nation's existence and the public happiness;

(2) Acting through the United States Constitution, the people of the several states created the federal government to be their agent in the exercise of a few defined powers, while reserving to the state governments the power to legislate on matters which concern the lives, liberties, and properties of citizens in the ordinary course of affairs;

(3) The limitation of the federal government's power is affirmed under the Tenth Amendment to the United States Constitution, which defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government, and all power not delegated to the federal government in the Constitution of the United States is reserved to the states respectively, or to the people themselves;

(4) 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;

(5) The several states of the United States of America are not united on the principle of unlimited submission to their federal government. The government created by the compact among the states is not the exclusive or final judge of the extent of the powers granted to it by the Constitution, because that would have made the federal government's discretion, and not the Constitution, 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 of infractions as of the mode and measure of redress. Although the several states have granted supremacy to laws and treaties made pursuant to the powers granted in the Constitution, such supremacy does not apply to various federal statutes, orders, rules, regulations, or other actions which restrict or prohibit the manufacture, ownership, and use of firearms, firearm accessories, or ammunition exclusively within the borders of Missouri; such statues, orders, rules, regulations, and other actions exceed the powers granted to the federal government except to the extent they are necessary and proper for the government and regulation of the land and naval forces of the United States or for the organizing, arming, and disciplining militia forces actively employed in the service of the United States Armed Forces;

(6) The people of the several states have given Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes", but "regulating commerce" does not include the power to limit citizens' right to keep and bear arms in defense of their families, neighbors, persons, or property, or to dictate to what sort of arms and accessories law-abiding mentally competent Missourians may buy, sell, exchange, or otherwise possess within the borders of this state;

(7) The people of the several states have also given Congress the power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States" and "to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or in any department or officer thereof". These constitutional provisions merely identify the means by which the federal government may execute its limited powers and ought not to be so construed as themselves to give unlimited powers because to do so would be to destroy the balance of power between the federal government and the state governments. We deny any claim that the taxing and spending powers of Congress can be used to diminish in any way the people's right to keep and bear arms;

(8) The people of Missouri have vested the general assembly with the authority to regulate the manufacture, possession, exchange, and use of firearms within this state's borders, subject only to the limits imposed by the Second Amendment to the United States Constitution and the Missouri Constitution.

3. (1) All federal acts, laws, 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 Constitution and Article I, Section 23 of the Missouri Constitution shall be invalid in this state, shall not be recognized by this state, are specifically rejected by this state, and shall be considered null and void and of no effect in this state.

(2) Such federal acts, laws, orders, rules, and regulations include, but are not limited to:

(a) The provisions of the federal Gun Control Act of 1934;

(b) The provisions of the federal Gun Control Act of 1968;

(c) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services which could have a chilling effect on the purchase or ownership of those items by law-abiding citizens;

(d) Any registering or tracking of firearms, firearm accessories, or ammunition which could have a chilling effect on the purchase or ownership of those items by law-abiding citizens;

(e) Any registering or tracking of the owners of firearms, firearm accessories, or ammunition which could have a chilling effect on the purchase or ownership of those items by law-abiding citizens;

(f) Any act forbidding the possession, ownership, or use or transfer of any type of firearm, firearm accessory, or ammunition by law-abiding citizens;

(g) Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

4. It shall be the duty of the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens to keep and bear arms within the boarder of this state from the infringements in subsection 3 of this section.

5. No public officer or employee of this state shall have any authority to enforce or attempt to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section.

6. 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.

7. Any Missouri citizen who has been subject to an effort to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section shall have a private cause of action for declaratory judgment and for damages against any person or entity attempting such enforcement.

 

[OldMac]

Section 3(2)(f) and (g) certainly are clear to include ammo.

Section 5 is clear that the only protection you are assured is from state and local arrest.

Sections 6 & 7 do provide some recourse against the federalies that busted you, beat you when you resisted, ransacked your house when you told them they had no authority, froze your bank accounts and put you on the no fly list while they investigate a possible home grown terrorist that seems to be too interested in the constitution and states rights. Maybe none or all of that will happen but in these cases I doubt you will beat the rap or the ride. The only question is do they have resources or a reason to focus on you.

 

[Frank Ettin]

...could these state laws be used to ignore the ATF if the M855 ban goes through?...

The short answer is "no." In general these state laws have no practical effect.

We've had a number of discussions of this topic:

• South Carolina Firearms Liberty Act
  
  
• Kansas Leads the Nation
  
  
• Brady Group sues Kansas
  
  
• Gun rights and nullification
  
  
• Wyoming takes stand against Federal Gov't
  
  
• Missouri Legislature Nullifies All Federal Gun Control
  
  
• Montana Firearms Freedom Act
  
  
• Will Montana's Firearm Freedom Act be heard by Supreme Court

With regard to the Montana law, the Ninth Circuit ruled against the Montana law in one case (Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013)).

See this article (emphasis added, footnotes omitted):

...Plaintiffs filed suit in support of the law, in federal district court, on October 1, 2009. These plaintiffs are the Montana Shooting Sports Association, the Second Amendment Foundation, and MSSA president Gary Marbut. ...

On September 29, 2010, U.S. District Court Judge Donald Molloy dismissed the suit "for lack of subject matter jurisdiction and failure to state a claim."

The Plaintiffs filed an appeal with the United States Court of Appeals for the Ninth Circuit. In a decision issued on August 23, 2013, the Ninth Circuit ruled that the U.S. District Court erred in concluding that the Plaintiff's lacked standing but, after considering the merits of the case, affirmed the dismissal of the action for failure to state a claim. Relying on the United States Supreme Court's decision in Gonzales v. Raich, 545 U.S. 1 (2005), and the court's own precedent in United States v. Stewart, 451 F.3d 1071 (9th Cir. 2006), the Ninth Circuit panel unanimously ruled that Congress could regulate the internal manufacture of firearms within Montana because the creation and circulation of such firearms could reasonably be expected to impact the market for firearms nationally. A majority of the panel, over the dissent of Judge Bea, went further to hold that the Montana Firearms Freedom Act was preempted by the federal licensing law. Two petitions for a writ of certiorari sought to bring the matter before the United States Supreme Court, but the writ was denied in both instances....

 

[Thermactor]

Won't this amendment be overturned by a circuit court judge because it infringes on federal's rights?

 

[Frank Ettin]

Won't this amendment be overturned by a circuit court judge because it infringes on federal's rights?

The reasons these sorts of state laws have no practical effect were covered at length in the threads I linked to in post 3.

 

[Thermactor]

The rulings were politically motivated.
Another instance where states flout federal law but where the Federal government doesn't take action is with states that enact legal recreational marijuana laws.
The federal government hasn't shut them down, yet the the creation and circulation of such drugs could reasonably be expected to impact the market for drugs nationally.
That's the exact reasoning word-for-word from the 9th circuit court's ruling, just replace the word firearms with drugs.

 

[chiggerbyt]

I don't think HB 436 passed.
The one that did was Senate Joint Resolution 36 (SJR36) which became Amendment 5 to the Missouri constitution.

 

[ConstitutionCowboy]

Won't this amendment be overturned by a circuit court judge because it infringes on federal's rights?

The court may rule it contrary to US law but not because it violates any right the fed gov has. The federal government only has powers. Federal laws are supreme.

I won't get into the constitutionality of those federal laws.

Woody

 

[Frank Ettin]

The rulings were politically motivated....

Whenever the Supreme Court makes an important or controversial ruling, folks who don't like it always try to rationalize their belief that the Court was somehow acting perversely. However, a federal judge is less likely to be influenced by political motivations than anyone else in government. He/she has his/her job for life and has no reason to try to curry favor with either the electorate or anyone else.

In fact the Founding Fathers sought to insulate federal court judges from political pressures. Which is why they provided in the Constitution (Article III, Section 1):

...The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

...Another instance where states flout federal law but where the Federal government doesn't take action is with states that enact legal recreational marijuana laws. The federal government hasn't shut them down, yet the the creation and circulation of such drugs could reasonably be expected to impact the market for drugs nationally. That's the exact reasoning word-for-word from the 9th circuit court's ruling, just replace the word firearms with drugs.

But the current administration's policy decision to forbear from strict enforcement of the marijuana laws under some circumstance has nothing to do with, and is entirely unrelated to, that, or any other, court decision.

1. It's all about the doctrine of prosecutorial discretion. Prosecutors generally can decide how to use limited resources.
   
   In some cases a policy decision to back off of certain types of crimes might be driven by a conclusion that enough people, particularly among the current administration's constituency, find the conduct relatively benign. That might not be the case with other matters. And that very well can be a political matter.
   
   
2. And the fact that there's a current policy to "soft peddle" federal prosecution of recreational marijuana use doesn't necessarily mean that will be the policy tomorrow.
   
   
3. And in any case there has been considerable recent federal activity in connection with the dispensing and cultivation of marijuana under state medical marijuana laws. See --
   
   
   • "Obama Explains Increasing Medical Marijuana Crackdowns, Raids..."
     
     
   • "U.S. raids L.A. marijuana shops..."
     
     
   • "Southern Oregon medical marijuana farm raided by federal drug agents..."
     
     
   • "2 Anaheim pot shops raided,..."
     
     
   • "Sacramento marijuana dispensary latest target of federal crackdown"
   
   
4. And as outlined in this article, the current administration's "non-prosecution" policy on marijuana is really pretty narrow. For example:
   
   
   • The federal forbearance is not unconditional. It is subject to the administration being satisfied with the rules implemented by Washington and Colorado governing sale and distribution. From that article:

     The Obama administration said Thursday that it would not challenge laws legalizing marijuana in Colorado and Washington state as long as those states maintain strict rules involving the sale and distribution of the drug....

     
     
   • Furthermore, Obama isn't giving marijuana in general a free pass. From that article:

     ...The memo, ..., directs federal prosecutors to focus on eight areas of enforcement rather than spending time targeting individual users. Those aims include preventing distribution of marijuana to minors, stopping the growing of marijuana on public land, keeping pot from falling into the hands of cartels and gangs, and preventing the diversion of marijuana to states where it remains illegal....

     
     
   • So the federal government will continue to enforce federal marijuana laws. It will just not focus on individual users.