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Letter from Koster critiques nullification bill, Funderburk and Jones respond


ST. LOUIS — Attorney General Chris Koster sent out a letter today that analyzes House Bill 436 — the bill that, if the veto is overridden, could criminalize the enforcement of federal gun laws within the state.

Attorney General Chris Koster
Attorney General Chris Koster

Koster’s letter cites three detriments of the bill:

  • – The call for an end to cooperative efforts between state and federal law enforcement officials
  • – Granting criminals a right to sue police officers for enforcing the law; and
  • – Creating confusion in Missouri’s concealed carry law.

“There is no doubt that HB 436 will be closely scrutinized by the federal courts, and some provisions of the law may be declared unconstitutional,” Koster says in the opening line of his letter. “Nevertheless, the enactment of HB 436 cannot be casually viewed as merely symbolic.”

Among the concerns that Koster raised in the letter is the questions of whether the recovery of an automatic machine gun from a drug dealer would still be sent to the U.S. Attorney General as the weapon was outlawed by the federal Gun Control Act of 1934.

The bill’s sponsor, Rep. Doug Funderburk, R-St. Peters, says that is not what the legislature is attempting to do. He argues that Koster’s claim that through HB 436, Missouri would be invalidating all federal laws is “just not the case,” and says that council he has sought says the same.

“He talks about how — in subsection three [of the letter] — problems with law enforcement would arise because the bill addresses two current existing gun control acts from the federal government,” Funderburk says. “But he’s leaving out the part of the sentence [from the bill] that says that basically actions from the federal government that violate the Second Amendment are the ones that wouldn’t be enforced.”

Rep. Doug Funderburk
Rep. Doug Funderburk

Funderburk says the attorney general and the governor are in sync, and says the point both raise about nullification being unconstitutional isn’t entirely accurate, “because it has yet to really be determined.”

“I think we should go through with the override, which we are going to do, and then let it go to the courts and let them decide, which is how it really should be anyway,” he says. “We will never get there if we cower down and succumb to the narrowly-construed, freely-written concerns that are never going to happen. If we don’t override the governor’s veto, we’re never going to know.”

After Koster released the letter, which was addressed to House Speaker Tim Jones, Jones responded.

In his statement, Jones says the attorney general has chosen to stand with “the governor’s talking points” rather than the “bipartisan supermajority” in the House, using the word “again,” implying this is the second time Koster has done so.

Last week, Koster released a letter to Jones about House Bill 253 in response to a request for his opinion on whether a portion of the bill has a retroactivity provision. The letter from Koster says that it does. A handful of Democrats joined Republicans in voting for that bill during its final passage, which never reached the “supermajority” level as it passed with a 103-51 vote in the House alone. A handful of Republicans voted against it. More Republicans have since said they intend to switch their vote. In the case of HB 253, while Koster might be siding with the governor’s main talking points, as Jones’ says, he isn’t opposing a “bipartisan supermajority.” HB 436 is accurately a different story in terms of the supermajority as it was adopted by a 116-38 vote in the House.

“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 writes in his statement. “We will be further analyzing and examining the specific legal issues raised by the Attorney General and will respond if additional comment is necessary.”