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HomeNew GearNullification vs. Anti-Commandeering: The DOJ Challenge to Missouri's Second Amendment Preservation Act

Nullification vs. Anti-Commandeering: The DOJ Challenge to Missouri’s Second Amendment Preservation Act

Merrick Garland
Attorney General Merrick Garland (AP Photo/Carolyn Kaster, Pool)

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The controversy over Missouri’s Second Amendment Preservation Act (SAPA) has now gone national, with the Department of Justice suing the state in federal court to block enforcement of the law. A separate challenge brought by the City of St. Louis and two counties was recently argued before the Missouri Supreme Court.

At issue in both cases is whether the Missouri SAPA conflicts with or attempts to nullify federal law, as both the state and federal lawsuits claim, or whether it’s a valid exercise of Missouri’s state legislative powers to deny any federal attempt to commandeer state-manpower, as Missouri argues.

SAPA was signed into law last June as an effort to counter the tide of gun control proposals coming from the then-new Biden Administration. A press release form Missouri’s Governor Mike Parson stated . . .

HB 85 prohibits state and local cooperation with federal officials that attempt to enforce any laws, rules, orders, or actions that violate the Second Amendment rights of Missourians. These protections against federal overreach are triggered if federal officials attempt to violate the state or federal constitution.

Additionally, the bill is an acknowledgment that the right to keep and bear arms is fundamental and inalienable, and that the nation’s federalist constitutional structure limits the federal government’s authority over states.

Under HB 85, any person or entity who knowingly deprives Missouri citizens of their right to bear arms – as protected by state and federal constitutions – will be liable for redress and monetary damages of $50,000 per occurrence. Local law enforcement’s ability to assist federal officials in other instances remains unchanged under this legislation.

“HB 85 puts those in Washington D.C. on notice that here in Missouri we support responsible, law-abiding gun owners, and that we oppose government overreach and any unlawful efforts to limit our access to firearms,” Governor Parson said.

Missouri maintains that the relevant portions of the SAPA do not violate federal law. Rather, Missouri says the Act uses the state’s power to set boundaries on the activity of its own officials.

The outcome of these cases, and the fate of the SAPA, could depend on a crucial distinction: the difference between nullification and anti-commandeering.

Missouri Gov. Mike Parson (Julie Smith/The Jefferson City News-Tribune via AP, File)

Nullification is when a state declares certain federal laws to be void and prevents their enforcement by federal officials within the state. In contrast, anti-commandeering is when a state refuses to be drafted into a federal law enforcement role, but doesn’t prevent federal officials from carrying out that role themselves.

Courts treat nullification and anti-commandeering extremely differently. Anti-commandeering has been upheld as a necessary feature of the Constitution, while nullification has been consistently rejected by courts across the nation—including the U.S. Supreme Court.

If the courts hold that some portions of the Missouri SAPA nullify federal law, those parts of the SAPA likely won’t survive. But if judges determine that some parts of the SAPA are only anti-commandeering provisions, they’re likely to be upheld based on Supreme Court precedent.


Some provisions of Missouri’s SAPA seem to fall more in the category of nullification rather than anti-commandeering. It seems likely that a federal court will take issues with these portions.

Section 1.420 of the SAPA lists various “federal acts, laws, executive orders, administrative orders, rules, and regulations” which “shall be considered infringements on the people’s right to keep and bear arms” within Missouri. The Act then states that such laws “shall be invalid to this state, shall not be recognized by this state,” and “shall be specifically rejected by this state.”

While the mere pronouncement might not be enough to qualify as nullification, Section 1.440 of the SAPA goes on to say that Missouri courts and law enforcement have a duty to protect the people’s gun rights “from the infringements defined under section 1.420.” That is, from certain “federal acts, laws, executive orders, administrative orders, rules, and regulations.”

In these sections, Missouri seems to be saying its own officials have a duty to prevent anyone, including federal officials, from enforcing certain federal laws in Missouri. If courts read the law that way, they’re virtually certain to strike it down as a form of nullification.

This negative treatment isn’t a modern judicial novelty. Nullification has always been a controversial idea in American history, finding only marginal support among the Founders, and with the Supreme Court rejecting the idea as early as 1809. It’s not surprising that courts are unwilling to revisit the issue today.

Even if courts reject some portions of the Missouri SAPA, however, other parts could still be upheld if they’re understood purely as anti-commandeering provisions.

Missouri Capitol


Portions of the SAPA declare that Missouri and its officials won’t cooperate with the federal government to enforce certain federal gun laws Missouri deems contrary to the people’s Second Amendment protected rights. Even political commentators sometimes fail to grasp that this is not nullification.

Rather, it’s anti-commandeering, whereby the federal government cannot force state officials to act on behalf of the federal government as part their law enforcement arm. Missouri is on solid constitutional ground here in asserting its power to decline cooperation with federal law enforcement.

In Section 1.450, the Missouri SAPA states that no “public officer or employee of this state or any political subdivision of this state, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms.”

In a brief to the state supreme court, Missouri says this section, and the related provisions that follow, “merely prohibit state personnel and resources from being used to enforce the federal laws and rules identified and disapproved.”

The U.S. Supreme Court upheld the power of states to refuse to cooperate in the enforcement of federal law in the 1997 Printz v. United States case. In our system of dual sovereignty, states can’t be forcibly drafted (or “commandeered”) into a federal law enforcement role.

This is true as a matter of constitutional principle, whether the issue is immigration (as with “sanctuary cities”), drug laws (as with marijuana in many states), or gun laws.

If a court interprets portions of the Missouri SAPA as simply anti-commandeering provisions, they’re likely to survive even if those deemed to be nullification don’t.

In reviewing the SAPA, courts will have to make this critical distinction: between mere non-cooperation with federal law enforcement (anti-commandeering), and efforts to block federal enforcement of federal law (nullification). It’s important for the nation’s gun owners, and the People at large, to understand this distinction as well.


Cody J. Wisniewski (@TheWizardofLawz) is the director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

To learn more about the Center to Keep and Bear Arms’ work and support their fight for your natural right to self-defense—from both man and tyranny—visit www.mslegal.org/2A and donate today!

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