by Sam Levin
As we've noted here, with the help of a handful of Democratic lawmakers in Missouri, the legislature may successfully implement a law that would make it illegal to enforce certain federal gun policies in Missouri. The controversial "Second Amendment Preservation Act" is considered one of the most extreme pro-gun bills in the country and would essentially put in place a state law that directly contradicts federal law.
He argues that it's clearly an unconstitutional, legally problematic piece of legislation -- and if it does become law, his firm is considering bringing forward a lawsuit to stop it.
See also: - Missouri Legislature Sends Bill to Governor Blocking Federal Gun Control - Keith English, Dem Backing Gun Bill to Block Feds: "We Don't Want to Back Down" - Dave Roland Who Helped Draft GOP Gun Bill Says Missouri Has A Right to Block Feds
Last month, Governor Jay Nixon, a Democrat, vetoed House Bill 436, a Republican-sponsored bill, arguing that "under well-established legal precedent," the state cannot "resurrect the pre-Civil War concept of nullification" that would violate the Supremacy Clause.
The bill would make it a criminal act for law enforcement officials -- even federal ones -- to enforce gun laws in the state that infringe on the right to bear arms. The proposal was brought forth by conservative state politicians concerned with President Obama's gun control efforts in the wake of last year's tragic elementary school massacre.
Early analysis shows that Republican legislators, with support from some Democrats, may be able to override Nixon's veto when they convene in the fall.
"The Supremacy Clause requires that any conflict between state and federal law is decided in favor of federal law," Newman says. "The state law cannot undermine federal law and that's exactly what's taking place here."
Newman is an attorney with the Saint Louis Lawyers Group and an adjunct professor at the Washington University School of Law. He has experience with litigation involving the Missouri legislature, previously working as an attorney on a case challenging the state's concealed-carry law and on another case challenging a GOP voter ID measure here.
"It's inexcusable that this law would go into effect over the governor's veto," says Burt Newman, who earlier this year wrote a piece for Huffington Post on the limits of Second Amendment rights.
He tells us that his law firm in the process of determining whether it will file a lawsuit challenging this bill -- which, of course, depends on whether the legislature does override the governor's veto.
If he does file a suit, he will be asking the court for an injunction to block the statute pending a final ruling on the constitutionality of the measure.
In other states, the U.S. Attorney General has also threatened legal action against these kinds of bills that directly challenge the feds.
"It's a complete waste of state money to have to defend a lawsuit on an issue that has always been clear as a matter of constitutional law," Newman says. "What these legislators are doing is unfortunate. They are not knowledgeable of the constitutional law. They think that what is taking place is somehow detracting from their Second Amendment rights, which is absolutely untrue."
There is very clear legal precedent in this debate, he argues. "The Supreme Court has no need to rule on this issue. That is so fundamentally clear."
He adds, "If anyone would take a look at the case law on this subject, I think they would reach the same conclusion."
If his firm doesn't challenge the bill, it will surely face other legal battles, he adds.
Proponents -- like one advocate who helped recommend the language -- argue that it's a legal fight worth having and that states have a duty to stand up to the federal government in this exact manner.
Newman, however, says the courts simply will not support the legislation. "I frankly could not envision this statute not being declared unconstitutional."