2nd Amendment Not Subject to a “Reasonable” Test and HB 436 Doesn’t Make Room for “Reasonableness” Anyway

I read the following Monday morning in the Kansas City Star regarding HB 436:

Nothing in this bill would invalidate reasonable regulations or cooperation between federal and state authorities to enforce those reasonable regulations. But it will criminalize the enforcement of laws that Missouri deems unreasonable and a violation of the Second Amendment.

There’s no doubt that this is the case that’s been made to the General Assembly. I believe most representatives and senators who voted for the bill did so with the idea of sending a message to the federal government that it has grown too large and is intruding into areas it shouldn’t. The devil, however, is always in the details. And, examining the details of the actual bill in question reveals two major flaws with the argument made above.

First, the argument is plainly false. A plain reading of the bill reveals that it declares the vast majority of federal gun law unconstitutional – “reasonable” or not. Second, the argument unwittingly adopts a “reasonableness” test for the Second Amendment advocated by liberals on the Supreme Court in the recent Heller decision which struck Washington D.C.’s ban on handguns – and summarily rejected by the majority opinion written by Justice Scalia.

 1.      HB 436 Clearly Declares the Vast Majority of Federal Gun Laws Unconstitutional – “Reasonable” or Not

Sometimes statutory interpretation is difficult. It’s not always easy to express intent in clear language that’s incapable of misinterpretation. (Or there may be a timing factor which confuses the issue – as explained in here in regards to HB 436). Other times, statutory interpretation is like math. There can be no mistake about the meaning of the words and phrases in these “math-like” statutes.

HB 436is a math-like statute with respect to its declaration that the vast majority of federal gun laws are unconstitutional, regardless of whether they are “reasonable” or not. Here’s what the bill actually says in subsection (3):  

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, shall be 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.

Section 3(2)(a) and (b) illustrate just what the General Assembly is declaring to be an infringement on the Second Amendment – and there is no language limiting the scope of the bill to those laws which are not “reasonable.” The first sentence of (2) is the key. It declares the Gun Control Acts of 1934 and 1968 as examples of unconstitutional federal “acts, laws, orders, rules, (or) regulations.”[1]  

If the bill were limited to “unreasonable” laws, it would, first, have to have the word “reasonable” or “unreasonable” somewhere in the actual bill. And second, the first part of (2) would read like this instead, “Such federal acts, laws, orders, rules and regulations may include….”

But the bill is not modified with a may. Instead, it makes a straight-forward declaration that the vast majority of federal gun laws are unenforceable in the state of Missouri.

 2.      There’s No “Reasonableness” Test Under the Second Amendment and There Shouldn’t Be – Unless You Agree with Justice Breyer and the Liberals on the Supreme Court 

The second big problem with the argument above is that it unwittingly adopts the legal test advocated by liberals on the Supreme Court for the Second Amendment. 

In 2008, the Supreme Court in District of Columbia v. Heller struck an ordinance which prohibited the possession of firearms in Washington D.C. as unconstitutional. It was the first case since U.S. v. Miller in 1939 that the Court considered the scope of the Second Amendment.  

In Heller, Justice Breyer argued that the complete ban was constitutional because it would pass rational-basis scrutiny – which requires the Court to consider whether a law passes a “reasonableness test” – i.e. was there a rational basis for the legislature to pass this law? Scalia and the other conservatives on the Supreme Court rejected the “reasonableness” test as essentially reading the Second Amendment out of the Bill of Rights. 

As with many Scalia opinions, the really interesting and important stuff is found in a footnote. In footnote 27, Scalia explains:

Justice Breyer correctly notes that this law, like almost all laws, would pass rational-basis scrutiny. But rational-basis scrutiny is a mode of analysis we have used when evaluating laws under constitutional commands that are themselves prohibitions on irrational laws. In those cases, “rational basis” is not just the standard of scrutiny, but the very substance of the constitutional guarantee. Obviously, the same test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms….If all that was required to overcome the right to keep and bear arms was a rational basis, the Second Amendment would be redundant with the separate constitutional prohibitions on irrational laws, and would have no effect.

Thus, the “reasonable test” is not one that is applied to the Second Amendment. To hold or argue otherwise is to allow legislatures and judges to ignore it. 

Two Interesting Side Points

  • Unfortunately, the Court failed to set forth a Second Amendment standard in either Heller or in McDonald v. Chicago, a follow-up case in which the Court held that the Second Amendment was incorporated against the states.  Scalia writes:

Justice Breyer chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field … And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.[2] 

  • Heller was the most important Second Amendment case in the history of the United States. Dick Heller, the plaintiff, was recruited by and the case funded byRobert Levy, an attorney and chairman of the Cato Institute in Washington D.C. Here’s what Levy had to say about HB 436: 

What distinguishes the Missouri gun measure from the marijuana initiatives is its attempt to actually block federal enforcement by setting criminal penalties for federal agents, and prohibiting state officials from cooperating with federal efforts. That crosses the constitutional line, said Robert A. Levy, chairman of the libertarian Cato Institute’s board of directors — a state cannot frustrate the federal government’s attempts to enforce its laws. Mr. Levy, whose organization has taken a leading role in fighting for gun rights, said, “With the exception of a few really radical self-proclaimed constitutional authorities, state nullification of federal law is not on the radar scope.”

[1] The Gun Control Acts of 1934 and 1968 make up the bulk of federal gun laws. To my knowledge, no major provision of either act has ever been declared unconstitutional. What do these laws regulate? Well, part of the gun control act of 1968 prohibits the knowing sale of a firearm to the following persons (1) those convicted of a crime punishable by imprisonment for over one year; (2) fugitives; (3) drug users and addicts; (4) those adjudicated as a mental defective or who have been committed to a mental institution; (5) illegal immigrants; (7) those who have renounced their U.S. citizenship; (8) those subject to a court order restraining them from harassing, stalking, or threatening an intimate partner or child; and (9) those convicted in any court of a misdemeanor crime of domestic violence.

[2] Earlier, the Court had explained, “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.