House Bills 85 & 310 known as the “Second Amendment Preservation Act” were signed into law by Missouri Governor Mike Parsons through the Emergency Clause on June 12, 2021, and is codified at Sections 1.410 to 1.485 RSMo. This Act declares certain “federal acts, law, orders rules and regulations to be an infringement on the people’s rights to bear arms, as guaranteed by Amendment II of the Constitution of the United States and Article I, Section 23 of the Constitution of Missouri. The Act makes any such federal act, law, etc., forbidding the possession, ownership, use, or transfer of a firearm or firearm accessory by a law-abiding citizen unconstitutional. This law is recently enacted so there are currently no appellate opinions addressing the Act. The Attorney General for the State of Missouri has filed a petition for declaratory judgment and request for an injunction requesting the Act be declared unconstitutional[1].
The following analysis is an interpretation of the provisions of the Act by the author.
Even though the Act was signed into law on June 12, 2001, the provision of the Second Amendment Preservation Act appears to be limited to offenses occurring on or after August 28, 2021. Therefore, the Act does not apply to criminal offenses committed before August 28, 2021.
The Act seemingly applies only to law-abiding citizens. Section 1.480 RSMo defines the term “law-abiding citizen” as “a person who is not otherwise precluded under state law from possessing a firearm. . . .” Who is precluded under Missouri law from possessing a firearm? In Missouri, possession of a firearm is unlawful if a person has been convicted of a felony under the laws of this state or another state or a crime under the laws of another state that would have been a felony in this state.
Felonies are criminal offenses that carry a range of imprisonment in excess of one year. The Act appears to protect people who have no prior felony offense but provides no direct protection to defendants who have a prior felony conviction. Therefore, the Act provides no defense to individuals charged with the offense of felon in possession of a firearm.
While the Act does not provide a direct defense to the crime of felon in possession of a firearm, the Act may have a deterrent effect on the enforcement of federal firearm laws. Section 1.450 RSMo prohibits “any public officer or employee of this state or any political subdivision of this state from enforcing or attempting to enforce any federal acts, laws, executive orders, rules, regulations, statutes or ordinances infringing on the right to keep and bear arms.” This prohibition includes, but is not limited to, the highway patrol, a sheriff’s department, and municipal police departments. Law enforcement can provide “material aid” to federal agents and federal prosecutors for certain felony crimes involving firearms, but only “so long as such weapons are ancillary to such prosecution” or class A or class B drug related felonies.
The term “material aid” is broadly defined.
Material aid is not limited to providing equipment. Material aid includes providing personnel to assist federal agents such as agents with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) and the Drug Enforcement Administration (DEA). The material aid exception may limit the risk a law enforcement agency assumes in assisting federal agents or federal prosecutors, but the highway patrol, a sheriff’s department, or police department will assume all the risk in enforcing or attempting to enforce a federal firearms law in the absence of cooperating with federal agents or federal prosecutors. This means that state and local law enforcement cannot enforce or even attempt to enforce federal firearms laws unless they are working with federal agents or federal prosecutors.
There are comparatively fewer federal agents investigating potential federal firearms crimes compared to the number of law enforcement officers employed at the state, county, and municipal levels of government. Common sense suggests that federal firearms agents will not be able to investigate every possible federal firearms offense. For example, the 1968 Gun Control Crime Act, prohibits the possession of any firearm or ammunition by individuals convicted of a misdemeanor crime of domestic violence and subject to a domestic violence protective order. 18 U.S.C. 922(g). However, not all crimes of domestic violence in Missouri are felonies. A person can have been convicted of a misdemeanor domestic violence offense. Under the Second Amendment Preservation Act, state and local law enforcement officers would be unable to enforce the federal crime of possession of a firearm or ammunition by a person in possession of a firearm or ammunition following a conviction for domestic assault or violation of an order of protection unless acting with a federal agent or federal prosecutor. So while the Act does not create a defense to these misdemeanor crimes, the Act certainly creates an enforcement problem. The Missouri State Highway Patrol, sheriff’s departments, and police departments are each going to have to make their own determination of how to proceed with enforcing federal firearms offenses.
The financial risk to state and law enforcement departments from one or more officers enforcing or attempting to enforce a federal firearms offense is significant. The Second Amendment Preservation Act makes the political subdivision or law enforcement agency that employs the officer that knowing violates the Act liable for damages and subjects the state, county, or city to a civil penalty of $50,000.00 per occurrence. The Act also eliminates the defense of sovereign immunity.
[1] Eric Schmitt, Attorney General for the State of Missouri has filed a petition for declaratory judgment and injunction in the Circuit Court of Cole County, Missouri, case number 21AC-CC00237, which is still pending. The petition requests that the court find HB 85 and Section 1.410 RSMo to be unconstitutional.
If you have additional questions about the laws discussed above or are looking for counsel, contact Scott Hamblin today.
A Jefferson City man faced DUI charges following a field sobriety test. Charges against the defendant were dropped after Scott successfully maintained the client’s claims that the test results were inaccurate. While the client initially appeared to be in a difficult situation, Scott was able to push investigators to determine the sobriety test results as invalid, so the charges were dismissed.
A mother was seeking sole custody of her children following a divorce. The father refused to cooperate, leaving the client in a difficult situation as she felt as though her children didn’t have a voice. Scott recognized her need for an advocate and carefully listened to the children’s wishes, which conclusively helped the client achieve sole custody of her children and protected their best interests.
A client from Fulton was accused of drug possession as a result of a home search. While drug charges may potentially be filed as a Class C felony involving severe consequences, Scott was able to help the client receive a reduced sentence. Ultimately, the client faced significantly smaller penalties compared to the initial charges.
Scott assisted a defendant in a particularly challenging divorce case in which the other spouse was not cooperating. Scott was able to help the client avoid court through an aggressive legal approach to resolve all outstanding disagreements while maintaining the client’s long-term needs.
One client sought legal assistance after an altercation with another individual in Jefferson City. The client was arrested on assault charges despite allegedly not starting the fight. Since an arrest can lead to life-altering penalties such as being terminated from employment and serving jail time, Scott was able to build a solid legal defense in the client’s favor and argued in favor of the client’s innocence.
A grandparent sought visitation rights to his grandchild after the parent tried to block him. Scott takes grandparents’ rights very seriously, and so he devised a strategy to help the grandparent set a visitation schedule. Scott developed a strategy to show that the child’s best interests were fulfilled through the grandparent’s ability to visit the child, helping push the case towards a resolution in the client’s favor.
Scott assisted a client who was injured in a car accident due to another driver’s negligence. The defendant claimed that the opposing party using their phone at the time of the crash, and Scott emphasized this claim to show that the other driver was at fault for the client’s injuries. The case concluded with the client receiving the necessary compensation for medical bills following a long hospital stay due to injuries.
I would highly recommend attorney Scott Hamblin. Mr. Hamblin was very easy to work with, explaining all my options as the case progressed. He took into consideration my priorities, what was most important to me, and skillfully negotiated them into an ideal settlement agreement. And his legal assistant, Madasyn, is such a delight to interact with.
Scott was honest, he was straightforward, and the best of all he was good at what he does. He's very knowledgeable and practices his craft well. I had a 10/10 experience with Scott and will trust no other attorney to handle my case.
Scott Hamblin is a great attorney. Between Scott and his legal assistant Madasyn, I felt like all my questions were answered promptly and thoroughly. Scott is very knowledgeable and was very well prepared for trial. I would recommend Scott to anyone needing an attorney.
Can't say enough good things about Mr. Hamblin and his team. They're responsive, treat your case like it's their own, and are personable as can be. Court can be daunting, but they are there to help you through every step of the tough process. Madasyn is part of this team and deserves to be recognized too, as she was friendly and encouraging from beginning to end. They handle it all with ease and you won't regret coming to them for help and advice along your journey.
10/10 recommend Mr. Scott Hamblin. Mr. Hamblin and his legal assistant Madasyn have been wonderful throughout my whole case and very prompt, and helpful the whole time. He was very thorough and left nothing missed during my whole case. Questions were answered quickly throughout the process whether through email, phone or in person. As well as the whole process was explained step by step. I highly recommend Mr Hamblin for any family law matters! I couldn’t of asked for better representation for my case.
I came across Scott Hamblin on the internet and read his bio and was very impressed. I have not been disappointed with his knowledge and understanding. If you are in need of a great lawyer, this is the call to make. You will not regret hiring him. Thank you, Scott.
Scott recently provided outstanding representation for my divorce. He was well-prepared throughout the course of the litigation and trial, resulting in a very favorable outcome for me. Scott is a very bright attorney who takes pride in his work, and it shows. He is truly in a league of his own.
Scott is a phenomenal attorney, no sugar-coating straightforward and to the point. As an older man I found myself in a custody case, and had little hope of any outcomes in my favor. This guy knows his law and his business, and is about it. His personality is soothing and his office is always on point. To say I’m ecstatic with his ability is an understatement.
Scott is the best attorney, hands down! My husband had a fairly difficult case, he had little hope that he’d be able to receive anything he was asking for and Scott helped him achieve everything, very quickly. He’s very professional, compassionate and understanding and works hard to help you achieve the best possible outcome. We are very thankful.
Scott came highly recommended by an attorney friend of mine after I received an unfavorable outcome working with a different lawyer in the area. Scott was smart, pleasant to work with, and achieved the best possible outcome for me. I only wish I would have used him sooner.
For accessible and experienced representation, contact attorney Scott Hamblin today.
NUVEW | Copyright 2024 All Rights Reserved | Accessibility Notice | Privacy Policy
The choice of a lawyer is an important decision and should not be based solely upon advertisements. Attorney Advertising. This information is designed for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Past results and testimonials are not a guarantee, warranty, or prediction of the outcome of your case, and should not be construed as such. Past results cannot guarantee future performance. Any result in a single case is not meant to create an expectation of similar results in future matters because each case involves many different factors, therefore, results will differ on a case-by-case basis. By providing certain contact information herein, you are expressly authorizing the recipient of this message to contact you via the methods of communication provided.
