Bob Buckley for The Examiner: Can States Override or Ignore Federal Law?

July 26, 2021

Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley analyzes a recently signed bill, the Second Amendment Preservation Act, after the City and County of St. Louis filed a lawsuit against it. The bill aims to limit federal gun regulation.

The article, Can States Override or Ignore Federal Law?, was published in the July 24 edition of The Examiner. An excerpt from the article is below.


Among the bills passed in the last legislative session in Missouri is “The Second Amendment Preservation Act.” Governor Parson signed the bill at the Frontier Justice gun store in Lee’s Summit. The ink barely dried on the governor’s signature when a lawsuit was filed by the City and County of St. Louis challenging the constitutionality of the law.

The lawsuit filed in Cole County Circuit Court against the attorney general, Eric Schmidt, states in the introduction: “A recently enacted Missouri law, formerly known as HB 85 and HB 310 (collectively “HB 85”), was adopted as the latest step in ongoing efforts to nullify federal gun laws. HB 85, however, is unconstitutional under the United States and Missouri constitutions.” The lawsuit further states that its intent is not to infringe upon anyone’s right to bear arms. The lawsuit also states that the legislation is a “radical, dangerous and obviously unconstitutional attempt to declare that Missouri will refuse to follow federal gun laws.”

The primary objection to the legislation is based on the Supremacy Clause, found in Article VI, Clause 2 of the United States Constitution, which declares “the constitution, laws and treaties of the federal government to be the supreme law of the land to which judges in every state are bound regardless of state law to the contrary.”

The tension between the state and the federal government has been a constant throughout American history. The question of how power should be divided between the federal government and the states has been debated for over two centuries. The debate began at the Constitutional Convention in Philadelphia in 1787 between the Federalists and the anti-Federalists.

The first case before the Supreme Court was the landmark case of McCulloch v. Maryland, decided in 1819. In that case, the court considered the power of Congress to charter the Second Bank of the United States. The state of Maryland passed legislation to impose taxes on the bank, and the court determined that Congress had the power to incorporate the bank and the state did not have the power to tax it. Opponents of the legislation argued that the power to establish the national bank was not specifically mentioned in the Constitution.

Chief Justice John Marshall authored the opinion and stated that Congress possessed powers not explicitly outlined in the United States Constitution under the “Necessary and Proper Clause” (Art. I, Section 8). The Supremacy Clause also supported the decision.

Missouri has also been a party to a Supremacy Clause case before the Supreme Court. In 1920, the state argued that the constitution gave Congress no enumerated power to regulate migratory bird hunting, and thus the regulation of such hunting was the power of the state. The state sought to prevent a federal game warden from enforcing provisions of the federal Migratory Bird Treaty Act. The state of Missouri lost the case.

More recently, in 2000, the Supreme Court invalidated a Massachusetts law that prohibited entities in Massachusetts from doing business in Burma. In a 2009 case, the Supreme Court held that a New York law preventing state trial courts from hearing claims for money damages against prison employees, whether based on federal or state law, violated the Supremacy Clause.

In the legal realm, there has been a similar battle over the preemption doctrine, which arose from the Supremacy Clause and has been used to invalidate state laws and to cause dismissal of civil lawsuits. In some cases when the federal government has explicitly stated in legislation that the federal law preempts state law, the law is clear, but in other cases where there is a conflict between federal and state law, the courts consider whether the federal government has occupied the field on the subject matter, whether the state law conflicts with the federal law and whether the state law would frustrate the intent of the federal law. Civil lawsuits against manufacturers of medical products and drugs approved by the Food and Drug Administration have been based on the preemption doctrine.

Many proponents of the recent Missouri gun legislation would rely on the Tenth Amendment, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Such advocates are called “states’ rights” advocates and argue that the federal government has no business regulating local matters.

The Civil War was fought over the question of whether states should have the right to protect the institution of slavery. The secession of Southern states led to the Civil War. After the Civil War, the 14th Amendment imposed important restrictions on the rights of states to regulate the lives of persons within its jurisdiction: “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the laws.”

There has even been recent talk by some in Southern states of seceding from the union, although it is very doubtful that will occur. However, the debate continues 160 years later.

The case brought in Cole County last month will ultimately be decided in the federal courts and possibly the United States Supreme Court. Whatever the court decides, the intense debate over states’ rights will continue.

To read the full article, visit The Examiner.