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Missouri urges court to uphold act declaring federal gun laws 'invalid' after Kansas City shooting

Jonathan Shorman, The Kansas City Star on

Published in News & Features

Under the law, police departments are subject to $50,000 lawsuits from private citizens who believe their Second Amendment rights were violated.

U.S. Circuit Judge James B. Loken appeared highly skeptical of Divine’s invocation of the 10th Amendment. He said the 10th Amendment doesn’t give states powers prohibited by the U.S. Constitution and pointed to the Constitution’s Supremacy Clause, which ensures federal law is supreme over state law.

“Counsel, I’m looking at the text of the 10th Amendment and your argument does nothing for me,” Loken said.

Bailey’s office argues SAPA does not nullify federal law. In court, Divine cast the law as telling government agencies not to use state resources to enforce unconstitutional federal laws. He argued the law only expresses a constitutional interpretation.

“That’s nothing like Jim Crow where you had state police blockading schools to prevent compliance with federal desegregation orders. The rhetoric by the United States here is way off base. It’s good for shock value only,” Divine said.

The DOJ continues to argue the law is an unconstitutional attempt to overturn federal law. In court papers, the agency said the law has disrupted longstanding state-federal task forces and information sharing.

In at least one instance, a Missouri State Highway Patrol trooper released a federal fugitive. The DOJ in a court filing said a Highway Patrol trooper in September 2021 released the fugitive rather than risk liability for the state agency.


DOJ attorney Jeffrey Eric Sandberg suggested to the appeals court that SAPA could encourage defiance of federal law, potentially leading to deadly consequences. He raised the hypothetical scenario of a U.S. marshal who seeks to take a fugitive into custody only to find the fugitive believes they have a right to resist.

“The last thing we want is a violent confrontation over the proper enforcement of federal law,” Sandberg said.

The appeals court took the case under advisement. It’s unclear when it will reach a decision.

The law has effectively been on pause for the past year. When Wimes ruled the measure unconstitutional, he ordered that state and local law enforcement may participate in the investigation and enforcement of federal firearms crimes without facing any penalties under the law. Wimes also blocked Missouri from any implementation or enforcement of the measure.

In October, the U.S. Supreme Court denied a request by Bailey to allow Missouri to enforce the law while its appeal is ongoing.


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