This article first appeared in the St. Louis Beacon, Sept. 3, 2013: Attorney General Chris Koster has warned lawmakers that he would “emphatically distance his office” from defending aspects of the Second Amendment Preservation Act, which seeks to "nullify" federal gun laws and bar federal agents from enforcing them.
Koster's warning came in a letter sent to each member of the General Assembly, a move that those close to him says signals the gravity of his assertions that the bill -- facing an override attempt after its veto by Gov. Jay Nixon -- goes far beyond what legislators may have intended.
The letter also marks the second time in less than a week when Koster has jumped in strongly to bolster Nixon's case for vetoing the original legislation. (Last week, it was the tax-cut bill, HB 253<.)
Koster's concern on HB 436 -- also known as the "gun nullification'' bill -- centers on provisions in the gun bill that likely would not be declared unconstitutional, but which he contends would threaten public safety by ending state-federal cooperation within law enforcement.
If law, the bill also would bar all state and local law enforcement agencies from receiving any federal funds and prevent any Missouri police officer from serving on any federal task forces, he wrote.
HB 436 declares that "all past, present, or future federal acts, laws, orders, rules, or regulations that infringe on the people's right to keep and bear arms" are "invalid, will not be recognized, are specifically rejected, and will be considered null and void and of no effect in this state."
It also states that “any official, agent, or employee of the United States government” who enforces or attempts to enforce “any of the infringements on the right to keep and bear arms included [in the bill]” is guilty of a misdemeanor.
Citing several constitutional concerns, Nixon vetoed HB 436 earlier this summer. But numerous lawmakers -- including House Speaker Tim Jones, R-Eureka -- said that an override attempt may occur later this month at the veto session which begins Sept. 11.
In the letter sent to all the lawmakers, Koster wrote there is “no doubt” HB 436 “will be closely scrutinized by the federal courts, and some provisions of the law may be declared unconstitutional.” But he went on to say there’s a good chance that some aspects of the bill could remain in effect after federal review.
“The enactment of HB 436 cannot be casually viewed as merely symbolic,” Koster wrote. “Even if the courts strike down portions of the law, other portions of the law will likely remain in effect after the federal court’s review.”
Those provision that could remain in effect, he wrote, could "create confusion" in the state’s conceal and carry law and "allow criminals to sue police officers." But most important, Koster said, it could stymie state police from cooperating with federal agencies, which he contended could imperil public safety.
One of Koster's examples was a state trooper coming across a felon who sold guns to illegal immigrants. Under a provision of HB 436, Koster wrote, it would be unlawful for that trooper to refer the seller to a federal prosecutor. That provision states “no public officer or employee of this state shall have any authority to enforce or attempt to enforce any of the infringements on the right to keep and bear arms included” in another part of the bill.
“In addition to creating an obvious risk to public safety, [that aforementioned provision] will also cause Missouri agencies to sacrifice any federal funding they receive as part of their previously lawful joint enforcement effort,” said Koster, adding that restricting joint cooperation was “flawed public policy.”
Koster contined, “While I will defend the portions of HB 436 that are defensible, my representation must clearly and emphatically distance my office from your purposed policy to prevent state law enforcement officers from 1) enforcing valid federal gun laws and 2) participating in joint law enforcement efforts.”
The Kansas City Star reported that a number of prominent prosecutors – including Jackson County Prosecutor Jean Peters-Baker and U.S. Attorney Richard Callahan – expressed similar concerns to Koster’s.
Koster’s letter made no mention of a provision of HB 436 barring the publication of gun ownership or conceal and carry information. That provisionhas been criticized for being too broad and would likely face a lawsuit from the Missouri Press Association if lawmakers override Nixon’s veto.
In a statement, Jones said he was "disappointed that our Attorney General has again opted to regurgitate the governor’s talking points rather than stand with a bipartisan supermajority in the House and Senate in defense of the Second Amendment rights of all law-abiding Missourians."
"What he fails to acknowledge in his politically-motivated letter is that the bill, at its core, seeks to affirm our rights as a state by pushing back against a federal government that has far exceeded the authority it was intended to have by our founding fathers," Jones said. "We will be further analyzing and examining the specific legal issues raised by the Attorney General and will respond if additional comment is necessary."
Koster’s letter is somewhat notable because the National Rifle Association endorsed the Democratic official for re-election last year. But the NRA has given no indication to numerous media sources – including the Beacon – that it supports HB 436 or would consider it a “rated” vote.
Nevertheless, lawmakers are likely to overturn HB 436 next week. In addition to the majority of House Republicans, several conservative Democrats have said they plan to override Nixon’s objection.
Koster's letter, those close to him say, is aimed at persuading legislators to take a closer look at the bill and change their mind.
