EXCLUSIVE — Missouri Attorney General Andrew Bailey said Friday that a Biden administration challenge to a gun rights law in his state has the potential to breathe new life into the 10th Amendment rights reserved for state governments and the people.
Fresh out of arguing in defense of a Second Amendment law before the 8th U.S. Circuit Court of Appeals on Friday, Bailey spoke with the Washington Examiner about the impact it could have on state sovereignty.
“The Second Amendment Preservation Act is about protecting our Second Amendment right to keep and bear arms, but it’s also a codification of the anti-commandeering doctrine from the Tenth Amendment to the United States Constitution,” he said. “The federal government may not use state law enforcement, or the apparatus of the state, or its political subdivisions to enforce unconstitutional statutes and rules.”
The state law bars Missouri officers from enforcing federal gun laws that are at odds with Missouri statutes, and would impose a $50,000 fine for officers who knowingly do so.
Bailey said that if the issue were to reach the U.S. Supreme Court on the merits and justices provided a favorable ruling, it could increase state authority in a way past courts have not been willing to do and reshape precedent on 10th Amendment jurisprudence. The 10th Amendment reserves for the states powers that the Constitution does not reserve for the federal government.
Bailey called the Missouri gun case the “perfect vehicle” for allowing states to codify the anti-commandeering doctrine.
The Biden administration mounted a challenge to the Missouri law in 2022, claiming the law violated the supremacy clause in the U.S. Constitution, which gives the federal government precedent over state authority where conflicting statutes exist.
“Our Founding Fathers are rolling over in their graves,” Bailey said, noting that the Constitution was intended to protect the people from the government, and the “Founding Fathers would have understood that states are guarantors of individual liberties.”
“Biden’s Department of Justice rejects that text, history, and tradition of the United States Constitution,” he said.
Last year, U.S. District Judge Brian Wimes, an appointee of Barack Obama, invalidated the Missouri statute on the basis that it violated the supremacy clause, writing that it “exposes citizens to greater harm by interfering with the federal government’s ability to enforce lawfully enacted firearms regulations designed by Congress for the purpose of protecting citizens.”
Bailey requested an emergency review from the U.S. Supreme Court to reinstate the law, which the high court declined in October, sending the case to the 8th Circuit. At the time, Justice Clarence Thomas indicated he would have reinstated the law.
The root issue for Bailey, however, is the authority of states to enact their own laws without the approval of the federal government — and whether the federal government has the power to nullify state laws it simply does not like.
Before the Second Amendment and 10th Amendment issues are resolved on merit, however, the issue of the Department of Justice’s standing to sue — the legal capacity of a party to bring a lawsuit — would need to be decided first.
Bailey is challenging the standing of the department because he says there is no injury that gives it the basis to file a lawsuit. He said the department is simply suing on the basis of potential future conflict between state and federal firearms law — something that would not meet the standing requirement.
Judges James B. Loken, a George H.W. Bush appointee, Steven M. Colloton, a George W. Bush appointee, and Jane L. Kelly, an Obama appointee, presided over the case in a three-judge panel.
Bailey said the judges focused in on the standing issues surrounding the Department of Justice challenge to the state law, as the supremacy clause does not create an independent cause of action to challenge statutes without actual injury. The attorney general said his perception of the judges’ lines of questioning led him to believe they are skeptical of the department’s authority to sue.
It is unclear what the Biden administration would do in the event of an unfavorable ruling, and they would have the opportunity to request it be heard by an en banc panel of the full 8th Circuit, or appeal to the nation’s high court.
If Missouri receives an unfavorable ruling, Bailey said he has the constitutional duty to appeal the case because he said he is required by law to uphold rights protected in the state constitution.
“I have a sacred duty under our state constitution to continue to fight to defend Missourians right to keep and bear arms, and I will happily discharge that duty,” he concluded.