ST. LOUIS — Missouri Attorney General Andrew Bailey sometimes struggles with accuracy.
Take his Friday morning social media post about oral arguments that were about to begin in the Eighth Circuit Court of Appeals. The court was poised to hear Bailey’s appeal of U.S. District Court Judge Brian Wimes’ ruling last year declaring Missouri’s “Second Amendment Preservation Act†unconstitutional.
“We will continue to lead the way in defense of the 2A,†Bailey wrote on X, referring to the Second Amendment.
T-30 minutes until oral arguments in defense of Missouri’s Second Amendment Preservation Act at the Eighth Circuit
— Attorney General Andrew Bailey (@AGAndrewBailey)
We will continue to lead the way in defense of the 2A.
Joe Biden doesn’t get to pick and choose which parts of the Constitution are legitimate
A few minutes later, Bailey’s top lieutenant contradicted him.
“This is not a Second Amendment case,†Missouri Solicitor General Joshua Divine told the panel of judges . Divine tried to argue that the case was more about states’ rights.
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Nothing about the Second Amendment Preservation Act has ever really been about protecting Missourians’ gun rights. Republicans passed the law in 2021. It seeks to nullify federal gun laws in Missouri, and it punishes state law enforcement officials if they work with their federal partners to enforce those laws.
In a case brought by the federal government against Missouri, Wimes ruled what most legal scholars already knew: State lawmakers can’t simply declare federal law unconstitutional. That is a violation of the U.S. Constitution’s Supremacy Clause.
“While purporting to protect citizens,†Wimes wrote, “SAPA 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 within the limits of the constitution.â€
During oral arguments on Friday, Divine went so far as to say that the part of the law many Republicans like his boss, Bailey, talk most about — the part that declares federal gun laws unconstitutional — is mostly drivel.
“It’s our position that this provision really doesn’t do anything,†Divine said. “It’s toothless.â€
It’s as though Divine was admitting what the federal judge already ruled: The emperor has no clothes.
That’s been the tragedy of this legislation from the beginning. The bill got its start in 2013, when there was still one elected Republican in Missouri — Rep. Jay Barnes of Jefferson City — who would call out the political charade.
“Our constitution is not a Chinese buffet,†Barnes said while casting the lone Republican vote against that bill in 2013.
Barnes, a lawyer, was pointing out the obvious: Missouri — or any other state — can’t unilaterally declare federal laws unconstitutional. The Supremacy Clause won’t allow it. The courts won’t allow it. So why bother?
The bill passed that year because Republicans — and some Democrats — were too afraid of the gun lobby to vote against something they assumed would never become law anyway. Gov. Jay Nixon, a Democrat, vetoed the bill, and the Legislature failed to override the veto.
The bill would come back every year, but it never gained traction again until Joe Biden became president. It was an exercise in political theater.
Ironically, Barnes is partly to blame for how Bailey got his job. Barnes led the impeachment effort of former Gov. Eric Greitens, a fellow Republican who resigned in disgrace. Mike Parson became the governor. He hired Bailey in his office and then elevated him when Eric Schmitt left the attorney general’s office to become a U.S. senator.
Bailey’s minions are now in federal court contradicting his social media posts in an effort to defend a law that is more a statement of secession than a defense of gun rights. And in a head-scratching strategy, Divine told the judges that a state legislature could, for example, declare “the sky is purple,†but that wouldn’t make the bill unconstitutional. It was as though Divine was arguing that words don’t matter.
His counterpart, Jeff Sandberg of the U.S. Department of Justice, said the opposite. The words in the bill matter, Sandberg told the appeals court judges. That’s because the law is already limiting the ability of state authorities to work with federal law enforcement. And that makes Missouri less safe.
“We’re here because state law enforcement officials are currently implementing a statute that makes it harder for us to go after violent criminals,†Sandberg argued.
The decision before the judges is a simple one. Missouri can follow the U.S. Constitution, or it can create its own magical kingdom with a purple sky.