Supreme Court Tells Missouri: No Enforcement of "Second Amendment Preservation Act"

AP Photo/Jacquelyn Martin

Another day, another decision from the Supreme Court that’s downright infuriating for gun owners. This time around, the Court isn’t allowing an ATF rule to be enforced while litigation continues, as we saw recently with the Biden administration’s “frame and receiver” rule. Instead, a majority of justices is telling the state of Missouri it can’t enforce the Second Amendment Preservation Act while the law is being challenged by the Biden administration and Attorney General Merrick Garland.


According to the unsigned order from the Court, the only justice ready to grant the state’s request was Clarence Thomas, though Neil Gorsuch and Samuel Alito added their two cents to the record.

Statement of JUSTICE GORSUCH, with whom JUSTICE ALITO joins, respecting the denial of the application for stay.

With the understanding that the district court “prohibited” only “implementation and enforcement” of H. B. 85 by the State of “Missouri and its officers, agents, and employees” and “any others in active concert with such individuals,” App. to Emergency Application 29a, I agree with the denial of the application for a stay under the present circumstances. An injunction purporting to bind private parties not before the district court or the “challenged” provisions “themselves,” however, would be inconsistent with the “equitable powers of federal courts.” Whole Woman’s Health v. Jackson, 595 U. S. 30, 44 (2021).

Now, you might wonder what “private parties” would be subject to the terms of the injunction to begin with, given that the SAPA law in question prohibits law enforcement agencies across Missouri from cooperating with the federal government to enforce any federal statutes that violate the Second Amendment. As the state of Missouri argued before the Eighth Circuit, it’s those private actors, not state officials, who “are charged with enforcing this statute”; similar to the anti-abortion law in Texas that allows private citizens to sue abortion providers if they perform an abortion after the sixth week of pregnancy. Still, if the state is precluded from “implementing” the Second Amendment Preservation Act, there’s no way for those private parties to avail themselves of the law while the injunction is in place.


More interesting is Gorusch and Alito’s clarification that the injunction doesn’t apply to the provisions of SAPA itself, which along with Thomas’s support for a stay indicates there are at least four justices on the Court amendable to Missouri’s argument that states cannot be compelled to assist federal agencies enforcing federal law.

Given that the Supreme Court has already said in Printz v. U.S. (decided all the way back in 1997) that states cannot be compelled to perform federal duties, there should be an outright majority of current justices who agree with the proposition that Missouri can decline to aid agencies like the ATF or DEA in enforcing federal gun statutes.

Maybe that majority will emerge when United States v. Missouri reaches the Court on appeal instead of an emergency application, but I’d feel a whole lot better about that prospect if Amy Coney Barrett, Brett Kavanaugh, or Chief Justice John Roberts had joined Gorsuch and Alito in laying out the parameters of the injunction.

While the state of Missouri is continuing to fight for the Second Amendment Preservation Act, there’s nothing stopping any of Missouri’s 114 counties from passing their own ordinances or regulations prohibiting local law enforcement from working with alphabet agencies like the ATF to enforce federal gun laws. It might make sense to specifically allow for those agencies to cooperate with their federal counterparts in investigations involving violent crimes, where a federal gun charge might be an ancillary part of a case instead of the main focus, but there are still steps counties can and should take to preserve the right to keep and bear arms within their borders that the Supreme Court has already okayed.



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