Does the 2nd Amendment Protect Felons in Possession of Firearms?

What defenses, if any, does the Second Amendment Preservation Act create for defendants in the state of Missouri charged with a criminal offense?

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.

When does the Act become effective?

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.

Does the Act provide any defense for defendants charged with the criminal offense of felon in possession of a firearm, also known as unlawful possession of a firearm?

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.

What is a felony?

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.

Material Aid

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.

Why an Enforcement Problem Exists

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.

Is there a petition for declaratory judgment and injunction?

[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.

Contact Scott Hamblin

If you have additional questions about the laws discussed above or are looking for counsel, contact Scott Hamblin today.

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