Faced with a Democratic Congress and White House, Missouri state Sen. Bill White (R) thought long and hard about legislative maneuvers he could pursue to shield his state’s residents from potential new gun laws out of Washington.
Eventually, he settled on a novel approach: Create a new force that residents could volunteer to join — a state-sanctioned “minuteman” group to be deployed in emergencies — then make those volunteers’ guns state property. That’s right: Want to protect your guns from the government? Give them to your governor.
“What is the one thing the feds don’t really get to regulate?” White told TPM. “Well, that’s our own state property.”
That concept is at the heart of SB 528, White’s bill to create the volunteer “minutemen” force in Missouri. Crucially, according to the bill text, minutemen firearms “shall be property of the state for purposes of sovereignty and jurisdiction in matters of judicial, taxation, and police powers exercised by the state while a member of the minutemen.”
In other words, White asserted, state ownership of minutemen firearms would protect against new federal firearms legislation.
“This is a home-grown idea,” he acknowledged. “It is a little weird.”
The legal logic here is untested, at best. Federal law generally reigns supreme in the United States. And some of the bill’s critics are gun rights advocates worried about the potential for the law to create, in essence, a government list of gun owners.
But the Missouri gambit is not the only one of its type: In South Carolina, several sponsors led by Sen. Tom Corbin (R) have pushed for S. 614, which would use existing language about the state’s “unorganized militia” — a centuries-old category defined essentially as all able-bodied adults in the state who aren’t already in the National Guard — to circumvent new federal gun laws.
The bill, which received a favorable vote from the state Senate’s Family and Veterans’ Services Committee on March 24, contains similar language to the Missouri bill, meant to shielding state residents from federal gun laws.
An unorganized militia member, at their own expense, would be able to possess all firearms “that could be legally acquired or possessed by a South Carolina citizen as of December 31, 2020,” according to the bill text.
And the unorganized militia, under the bill, “may not fall under any law or regulation or the jurisdiction of any person outside of South Carolina.”
“This bill is designed, purposefully designed, to prevent the federal government from ever confiscating the weapons that my constituents can legally purchase now,” Corbin said while advocating for the legislation at a committee meeting last month.
“I don’t hide behind that,” he said. “It is a preemptive strike at any sort of federal gun grab.”
Looking For ‘Federal Conflict’ On Gun Laws
The latest attempts by state legislators to circumvent potential federal gun legislation follow a decades-long history, according to Mark Pitcavage, a senior research fellow at the Anti-Defamation League’s Center on Extremism and a long-time analyst of militias in the United States.
In 1989, for example, a Connecticut-based gun dealer, Douglas Oefinger, established a group called the Connecticut Free Militia and then sued, unsuccessfully, for the militia to be able to import dozens of machine guns.
More recently, several conservative counties and cities in Virginia declared themselves “sanctuary” jurisdictions for gun rights in 2019.
Those declarations were essentially meaningless protests against the Democratically-controlled legislature and governor’s mansion, but they also spurred confusion; some Virginians believed the declarations impacted existing gun laws.
In Tazewell County, Virginia, which passed a militia resolution to accompany its “Second Amendment Sanctuary” language, county officials didn’t know what to do when residents started donating money for a citizen militia.
Ultimately, Pitcavage said, state laws must conform with federal law. He dismissed the notion that states can extricate themselves from the federal government’s militia authority.
“But it’s just an example of how people, whenever they get fearful about gun control, they search around for any of these legal loopholes that they think they can find,” he added. “And because the term ‘militia’ actually appears in the Second Amendment, and the Second Amendment is related to the historical and statutory militia, looking at militia-related laws is just one of the things that people’s minds gravitate to in these times of stress.”
Still, the South Carolina and Missouri bills offer real examples of legislators aiming high with their gun-rights advocacy. More than a symbolic protest, they are efforts at shaping legal precedent.
“The idea is to have a legal pushback — a legal bulwark or whatever — to force this thing into a high-level judicial challenge,” said Edwin Viera, a conservative lawyer who’s long argued for the “revitalization” of state militias, and who advised Corbin on the South Carolina bill.
Viera acknowledged that the bill’s legal basis was untested in federal court, but he pointed to United States v. Miller, in which the Supreme Court upheld the National Firearms Act’s requirement that certain weapons be registered with the government — but only on the basis that there was an absence of evidence showing that a sawed-off shotgun, in that case, “has some reasonable relationship to the preservation or efficiency of a well regulated militia.”
The South Carolina bill, Vieira said, could provide a new legal foundation for gun buyers.
“We’re not just talking about Joe Doakes, we’re talking about Joe Doakes as a member of this group, which is actually part of the state government,” he said. “See how we’re raising the level? It’s not just one individual that’s involved here, it’s this federal conflict.”
White, the Missouri senator, told TPM that his legislation, and Corbin’s in South Carolina, reflected their concern over the potential for new federal gun laws.
“We’re just trying to find some way we can win in court, maybe,” the senator said.
“If one of either [the South Carolina legislation] or this bill were to get a favorable ruling, you’d see a whole lot of states — at least 27, 28 of them, probably — instantly be filing similar legislation, and doing it pretty quickly.”