Are blue states getting ready to defy SCOTUS on abortion, firearms?

AP Photo/Anna Johnson

That’s the argument from the editors of the St. Louis Post-Dispatch, who say that the pending decision in Dobbs may lead to Democrat-controlled states simply ignoring upcoming Supreme Court rulings they don’t like; a further eroding of our institutions that the editors trace back to states legalizing marijuana despite federal prohibitions on the drug.

Various states, including Missouri, already are openly sidestepping federal marijuana laws, legalizing use of the drug even though the federal government outlaws marijuana as a Schedule I drug equivalent to heroin, LSD and methamphetamine.

A steady stream of states, starting with Colorado, decided to defy the federal government to the point where federal authorities make minimal efforts to enforce their own laws these days.

Missouri has taken its defiance a step further by asserting a right to forbid police from enforcing any federal gun laws that don’t have a companion Missouri state law. Missouri’s Second Amendment Protection Act has forced local police to cancel cooperative arrangements with federal agencies for fear of losing their state funding if they’re caught helping enforce any semblance of a federal gun law not recognized by Missouri.

Oddly, the Post-Dispatch editors completely ignore the rise of “sanctuary cities, which began long before cannabis was ever decriminalized at the state level. Berkeley, California adopted a sanctuary ordinance way back in 1971, though the first local ordinance was aimed at keeping deserting sailors from the USS Coral Sea from being prosecuted and not to help illegal immigrants avoid arrest and prosecution by federal authorities.

The Post-Dispatch also makes an egregious error in its description of the state’s Second Amendment Protection Act, which isn’t about defying federal law, Congress, or the Supreme Court. In fact, the basis for the state’s SAPA law (and most other Second Amendment Sanctuary ordinances, resolutions, and state laws) is a Supreme Court decision that made it clear that state and local law enforcement agencies are under no obligation to enforce federal law. In Printz v. U.S., decided way back in 1997, the Court ruled that Congress could not compel “local chief law enforcement officers” to perform background checks on handgun purchasers while the National Instant Check System, administered and run by the federal government, was being set up.

The Court explained that while Congress may require the federal government to regulate commerce directly, in this case by performing background-checks on applicants for handgun ownership, the Necessary and Proper Clause does not empower it to compel state CLEOs to fulfill its federal tasks for it – even temporarily. The Court added that the Brady Bill could not require CLEOs to perform the related tasks of disposing of handgun-application forms or notifying certain applicants of the reasons for their refusal in writing, since the Brady Bill reserved such duties only for those CLEO’s who voluntarily accepted them.

Missouri’s SAPA law is a far cry from simply ignoring what the Supreme Court has to say, which is what the Post-Dispatch editors warn is coming if SCOTUS ends up overturning Roe. v. Wade.

The court’s politicization is no longer something justices can hide. The three most recent arrivals to the bench misled members of Congress by indicating they regarded Roe v. Wade as settled law, not to be overturned. Justice Clarence Thomas’ wife is an open supporter of former President Donald Trump and his efforts to subvert democracy.

The Supreme Court has no police force or military command to impose enforcement of its rulings. Until now, the deference that states have shown was entirely out of respect for the court’s place among the three branches of government. If states choose simply to ignore the court following a Roe reversal, justices will have only themselves to blame for the erosion of their stature in Americans’ minds.

And now we get to the last bit of dumbassery on the part of the editors. If the Supreme Court does overturn Roe, I’m sure we’ll see plenty of states continue to maintain access to abortion within state law. That won’t be in defiance of the Supreme Court, however. Again, it will be entirely in line with what the draft leak of the Dobbs decision maintains; abortion is a subject to be dealt with at the state level since no right to an abortion is found in the Constitution.

I think it’s slightly more plausible that blue states like California or New York would ignore a Supreme Court decision that strikes down those states’ “may issue” carry permitting schemes, but even then I think we’re far more likely to see “may issue” states comply with the letter of the law while continuing to violate the spirit of the decision by imposing as many other barriers to carry as possible; including time, manner, and place restrictions; jacking up the fees to apply for a carry license, and imposing hard-to-satisfy training requirements that are aimed at artificially depressing the number of residents who can lawfully exercise their right to bear arms.

It seems to me that, rather than arguing in favor of judicial restraint, the editors of the Post-Dispatch are simply looking for excuses that allow them to ignore what the Court has to say because they don’t like the opinions handed down. Whatever their motivation, their argument simply doesn’t stand up to scrutiny… much like the arguments in favor of keeping New York’s draconian carry laws on the books in defiance of the Constitution and the Bill of Rights.