Though the Eighth Circuit Court of Appeals has struck down Missouri's Second Amendment Preservation Act, the ruling doesn't mean that Second Amendment sanctuaries are going away. 

As my colleague Tom Knighton pointed out in his coverage of the decision earlier this week, the appellate court recognized that the state of Missouri doesn't have any obligation to enforce federal gun control laws. And if that's where SAPA stopped, the law likely would have been upheld. But by declaring many federal gun control laws "invalid" in the state, the Eighth Circuit found that Missouri had overstepped the bounds of its own authority. 

Law professor Ilya Somin believes the Eighth Circuit got it wrong, pointing out that even under SAPA the federal government was free to enforce any of the statutes Missouri lawmakers declared an invalid infringement on the right to keep and bear arms. But Somin says even if the Eighth Circuit's decision stands, the court has provided a "roadmap" for other Second Amendment sancturaries to withstand judicial scrutiny.

It could bar state officials from helping to enforce the exact same federal laws, but do so without asserting that the laws are "invalid." Substantively, this revised SAPA would be exactly the same as the current version. But by avoiding references to "invalidity," the state can satisfy the test set up by the Eighth Circuit. After all, the court concedes (as it must) that Missouri has the right to "withhold its assistance from federal law enforcement." Other gun sanctuary states would be well advised adopt similar strategies, especially if they are within the Eighth Circuit's jurisdiction. The state can even still assert the laws in question violate the Second Amendment, so long as it recognizes that doesn't make them completely invalid until a court decision so holds.

If you think this is the kind of legal hair-splitting that makes people hate lawyers, I don't really disagree. But I'm not the one who created this somewhat silly distinction. The Eighth Circuit did.

In sum, this decision should not meaningfully impede state gun sanctuary laws, so long as state legislatures avoid references to the "invalidity" of the federal laws they want to stop state officials from helping to enforce.

There's a long history of states refusing to enforce federal laws. In the 1850s, for example, legislators in Wisconsin passed a law prohibiting local authorities from enforcing the Fugitive Slave Act, which required authorities and citizens in free states to aid and assist the federal government in the capture and return of slaves who had escaped custody. More recently, "sanctuary" cities and states that refuse to cooperate with federal authorities when it comes to illegal immigration have been upheld by the courts, and the Supreme Court explicitly stated in Printz v. U.S. that the federal government could not compel state and local law enforcement to enforce federal law, even on a temporary basis. 

The states can't stand in the way of the federal government enforcing its statutes, but they don't have to lift a finger to help. And it is well within the power of the states to explicity prohibit state and local agencies from aiding or assisting the feds in enforcing gun control laws. 

It's a little different when it comes to local Second Amendment sanctuaries and state law, but in those jurisdictions police and prosecutors still have discretion about whether to enforce state statutes. Many sheriffs and some prosecutors in Illinois, for example, have said they will not actively enforce the state's ban on so-called assault weapons and large-capacity magazines, and that's perfectly legal as well. 

The Eighth Circuit's decision could still be overturned on appeal, but the quickest and easiest way to restore Missouri's SAPA law (or at least the substantive part of it) would be for lawmakers in Jefferson City to adopt Somin's recommendation and drop the language about the invalidity of the federal statutes. The state would still have to deal with the threat by the feds to withhold law enforcement grants or other punitive measures they can mete out in response to Missouri standing up for the Second Amendment rights of its residents, but the law would be on firmer legal ground when it comes to future court challenges.