The Joplin Globe, Joplin, MO

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August 17, 2013

GOP eyes effort to override governor’s veto of gun bill

JEFFERSON CITY, Mo. — Charlie Davis doesn’t disguise his love for the right to keep and bear arms.

“I’m a Second Amendment advocate. I have more guns than I need,” Davis said last week.

He also is one of a number of Missouri legislators who are not shy about carrying concealed weapons in the state Capitol.

“I carry everywhere, unless there’s a sign on the business,” said Davis.

He showed his support for the second amendment this spring, when he voted for House Bill 436. Among other things, it would make it a crime for federal agents to attempt to enforce federal gun laws anywhere in the state.

Davis, R-Webb City, could get his chance to vote on that legislation again in the coming weeks, if the General Assembly attempts to override Gov. Jay Nixon’s veto of that bill.

While much of the public’s attention is focused on whether legislators can override Nixon’s veto of House Bill 253, which cuts state income and business taxes, there’s doubt about whether there will be enough votes to pull that off.

That doesn’t appear to be an issue with the gun bill.

It is the Republican legislative majority’s signature gun bill of the 2013 Missouri session. It received a bipartisan supermajority (116-38 in the House) when it originally passed, and supporters believe they may be able to hold the necessary 110 votes during the September veto session, regardless if they receive support from Democrats.

Davis said he supports the override because he believes “the state has the ability to protect its citizens anytime the constitution is being infringed on.”

But even if the Republicans can override the veto, other questions are being raised about whether the bill will be shot down in the courts.

Supremacy clause

In vetoing the bill in July, Nixon, a Democrat, argued that it violated the supremacy clause of the U.S. Constitution, which gives preference to federal laws over conflicting state ones.

“I don’t think we should be in the practice of merely saying that the state of Missouri is not going to follow any federal laws, even though there are a number of them that all of us have concerns about. We have a system of government here,” Nixon said. “Everybody knows I’m a hunter, I own weapons, I support the Second Amendment. To me, it is not a gun issue, it is a law issue.”

Nixon, a lawyer, cited a line of federal cases going back more than 200 years — Marbury v. Madison, McCullough v. Maryland, Tennessee v. Davis — that he said solidify federal supremacy when there is a conflict with state law.

Missouri is far from the only state to propose such a law. In fact, more than 30 states passed or attempted to pass similar laws in 2013.

This spring, Kansas Gov. Sam Brownback signed the Second Amendment Protection Act, nullifying a range of federal gun laws in Kansas.

“Any act, law, treaty, order, rule or regulation of the government of the United States which violates the Second Amendment to the Constitution of the United States is null, void and unenforceable in the state of Kansas,” the law reads.

In a statement issued at the time, Michael Boldin, executive director of the Tenth Amendment Center, said of the Kansas law: “Sam Brownback just told Barack Obama, ‘Bring it on!’ The new Kansas law is the strongest and most sweeping defense of the right to keep and bear arms thus far in the entire country.”

U.S. Attorney General Eric Holder wrote a letter afterward to Brownback, calling the Kansas law unconstitutional.

“In purporting to override federal law and to criminalize the official acts of federal officers, (the law) directly conflicts with federal law and is therefore unconstitutional,” Holder wrote to Brownback. “Federal officers who are responsible for enforcing federal laws and regulations in order to maintain public safety cannot be forced to choose between the risk of a criminal prosecution by a state and the continued performance of their federal duties.”

A similar bill in Oklahoma passed in the House but got bottled up in the Senate, said Michael Maharrey, communications director for the Tenth Amendment Center, a think tank that works to “establish a proper balance of power” between state and federal governments.

Justin Dyer, an associate professor of political science at the University of Missouri in Columbia, said the question about a state’s right to determine whether a federal law is constitutional has been up for debate since the nation’s founding. The question of “what rights does the state have if the federal government violates the constitution,” he said, is at the center of the debate.

“Historically, nullification has not gotten off the ground,” Dyer said, citing many of the desegregation cases of the last century.

He also said a provision within the bill that would make it a misdemeanor for a federal law enforcement agent to attempt to enforce federal gun laws would likely be immediately challenged by the Obama administration and struck down by a federal court.

Historically, he said, states have simply attempted to refuse to comply with a law when they disagree, but Dyer said he was not aware of any attempt to criminalize federal law enforcers.

“I don’t know of any federal judge that would side with the state,” he said. “I’m sure the supporters in the legislature would realize that.”

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