After Missouri’s Second Amendment Preservation Act was signed into law earlier this year, the Biden Justice Department sent a letter to Gov. Mike Parson and Attorney General Eric Schmitt warning that the law was a violation of the Constitution’s supremacy clause and threatening legal action as a result. We haven’t seen any federal lawsuit filed in response to the law, though a couple of counties have launched a challenge to the SAPA law in state court. The Biden administration isn’t done talking, however. Now the ATF getting involved by releasing an open letter to federally licensed firearms retailers in the state of Missouri warning them that the Second Amendment Preservation Ordinance doesn’t change their obligation to follow federal regulations.
As the Justice Department advised Missouri’s Governor and Attorney General in a June 16, 2021 letter, because the Act “conflicts with federal firearms laws and regulations, federal law supersedes” the Act. Accordingly, all provisions of federal laws–including the Gun Control Act (18 U.S.C. § 921-931), the National Firearms Act (26 U.S.C. § 5801-5872), and their corresponding regulations–continue to apply and remain in full effect in Missouri.
In particular, federal law requires a license to engage in the business of importing, manufacturing, or dealing in firearms, or importing or manufacturing ammunition, even if the firearms or ammunition remains within the same state. All firearms manufactured by a licensee must be properly marked so they can be traced by law enforcement officers if later used in a crime. Additionally, each licensee must record the type, model, caliber or gauge, and serial number of each firearm manufactured, imported, or otherwise acquired, and the date such manufacture, importation, or other acquisition was made; subsequent transfers of these firearms must be recorded. In most instances, a Firearms Transaction Record (ATF Form 4473) and a National Instant Criminal Background Check System background check must be completed prior to transferring firearms to an unlicensed person. See 27 CFR §§ 478.41, 478.92, 478.102, 478.124, 478.125. All federal restrictions on the receipt and possession of firearms also continue to apply, regardless of whether an individual is a “law-abiding citizen” as defined by the Missouri law. These requirements, as well as all provisions of federal laws regarding the possession, acquisition, and transfer of firearms or ammunition (including the Gun Control Act (18 U.S.C. §§ 921-931), the National Firearms Act (26 U.S.C. §§ 5801-5872), and their corresponding regulations) remain in full force and effect.
The crux of the Second Amendment Preservation Act isn’t to attempt to nullify federal gun laws in the state of Missouri, but to prohibit state and local police from enforcing those laws. In that respect, the ATF’s open letter to FFLs in Missouri is on stronger legal footing that the DOJ’s original letter to the governor and AG declaring that the new law is unconstitutional.
The Supreme Court has long held that local and state governments cannot be compelled to enforce federal law, but they also can’t prevent federal officials from enforcing those same laws. So yes, the ATF still has federal jurisdiction over federally licensed firearm retailers in the state of Missouri, and failure to abide by the rules, regulations, and statutes governing FFLs can still lead to federal charges even with the Second Amendment Preservation Act in place. I’m pretty sure that gun store owners in Missouri already knew this, but if there was any uncertainty the ATF’s guidance should make it clear that the Biden administration plans on enforcing federal law in Missouri and may very well be putting gun dealers in the state under the microscope in order to make an example out of anyone who tries to test the boundaries of the Second Amendment Preservation Act.