This article originally appeared in the St. Louis Beacon: Gov. Jay Nixon’s not shy about showcasing his marksmanship.
Nixon — a Democrat and native of Jefferson County — is an avid hunter. His office occasionally sends out news releases after a successful outing, which usually includes a photo with the governor smiling in front of a deer who's met its maker.
News of Nixon’s successful hunt wouldn’t generate Pulitzer buzz. But under a bill that the governor vetoed, publishing information about the hunt could be a crime.
That’s because HB 436 states that "no person or entity shall publish the name, address, or other identifying information of any individual who owns a firearm." The bill — also known as the Second Amendment Preservation Act — contains a prohibition against publishing information about anybody who is an "applicant for or holder of any license, certificate, permit, or endorsement which allows such individual to own, acquire, possess, or carry a firearm."
Nixon believes that language also encompasses voluntary disclosure — whether in a news release or political stump speech. It’s one reason he vetoed state Rep. Doug Funderburk’s legislation earlier this year. According to Nixon's veto message, the bill would make it a crime if a newspaper publishes "photos of proud young Missourians who harvest their first turkey or deer."
"That said, and putting aside the perplexing paradox of seeking to protect a constitutional right by so significantly diminishing another, curtailing speech in such a manner clearly violates the free exercise of speech protected by the state and federal constitutions," Nixon continued in his veto message.
There’s a decent chance the GOP-controlled legislature will override Nixon’s veto. Missouri Press Association executive director Doug Crews told the Beacon that his organization’s board voted in June to potentially take legal action if that happens.
"The Press Association would be involved in some sort of legal challenge to that,” Crews said. “And I know publishers have been editorializing about that provision of the bill. I know some of have been talking to their legislators, too."
There’s broad agreement that the publishing prohibition would not survive legal scrutiny — even from the amendment's sponsor.
State Rep. Keith Frederick, R-Rolla, sponsored the amendment when the bill first came up for debate in the Missouri House. He told the Beacon that it was a response to a New York newspaper's publishing an online database of gun owners.
After the amendment was attached to HB 436, he said, a member of the media told him that the language was so broad it could interfere with routine reporting. It would also conflict with a U.S. Supreme Court case, Near vs. Minnesota, which essentially said that states couldn’t exercise "prior restraint" against publishing information except in fairly limited circumstances.
"What was drafted was a result of my discussions with the legislative research department at the Capitol. I told him what my concern was about the list of gun owners published in New York, and language was drafted to handle that problem," Frederick said. "But this individual brought to my attention that the language ... could prevent other news reporting that we really had no intent to stifle."
If HB 436 is overridden at next month’s veto session, he said he would introduce legislation next session to make a fix.
"It would not be my intention to have that portion of it that was unintended and would have negative consequences to stand,” said Frederick, adding that a revised version of his amendment was placed in another bill that Nixon signed.
"It would be my impression that we would correct that portion of it."
House Speaker Tim Jones, R-Eureka, appeared to concur with Frederick’s view during his appearance on the Politically Speaking podcast. When this reporter asked if he would go to jail if he printed a quote of a politician expressing pride in owning a gun, Jones quipped, “I doubt it — some might wish you were, but I do not."
"Any bills we pass are crafted by human beings,” Jones said. "And we often go back and do fixes. There’s legislative intent, and then there’s application. If there are parts of any bill – whether it’s this bill or any other – that somebody seeks to apply in an inappropriate way, we’re more than happy to go back and remedy that."
All fall down
Frederick’s amendment is something of a side issue; the heart of HB 436 declares that "all past, present, or future federal acts, laws, orders, rules, or regulations that infringe on the people's right to keep and bear arms" are "invalid, will not be recognized, are specifically rejected, and will be considered null and void and of no effect in this state." That includes the 1934 federal ban on machine guns.
It also states that “any official, agent, or employee of the United States government” who enforces or attempts to enforce “any of the infringements on the right to keep and bear arms included [in the bill]” is guilty of a misdemeanor.
Nixon and other critics say this provision flagrantly violates the Supremacy Clause of the U.S. Constitution, which dictates that federal law trumps state law. Others — including Jones and the bill's Senate handler, state Sen. Brian Nieves, R-Washington — disagreed.
St. Louis attorney Burt Newman told the Riverfront Times last week that he plans to file a lawsuit if the legislature overrides Nixon’s veto.
(Override prospects appear likely at this point, especially since several Democratic lawmakers have stated they plan to overturn Nixon’s objection in September.)
The provision allowing school districts to designate "school protection officers" who can carry concealed weapons may also face a legal challenge. Otto Fajen, a lobbyist for Missouri National Education Association, said that this provision contains a number of "weird features,” including language that he contends could cause a protection officer to be charged with a crime and immediately fired for not having the weapon with them.
Since school districts don’t have to adopt the policy in the bill, Fajen added “we’re kind of waiting to see if this section just falls on the scrap heap of unworkable ideas that will never actually be used."
But it's unclear whether a successful legal challenge of those provisions would doom other aspects of the legislation. That’s an important question because the bill also lowers the state’s conceal and carry age to 19, curtails local “open carry” laws and restricts “gun buyback programs."
From a cursory scan, the bill doesn’t appear to contain an explicit “severability clause,” which usually states that other provisions will remain in effect if one is knocked out by a court. In an e-mail to the Beacon, Newman — the husband of state Rep. Stacey Newman, D-Richmond Heights, and a supporter of gun control — said last week there were "statutory and case law considerations which we are reviewing” about that issue.
On Tuesday, Newman told the"there’s sufficient precedent for the court rely on in finding the entire bill to be unconstitutional under the United States and Missouri constitutions."
Dave Roland — a Washington state-based attorney who was involved in crafting some aspects of HB 436 – told the Beacon that “courts sometimes bend over backward to preserve the bulk of a bill if only one element of it is unconstitutional, even if there’s no severability clause.”
“That’s kind of what we saw in the Obamacare decision a couple of years ago,” Roland added. “The court struck down the Medicaid expansion requirement, but they preserved the rest of the bill. And courts generally try and do that. Yes, they’re supposed to have a severability clause built in. But courts are really, really hesitant to strike down entire bills.”
'Backdoor gun registry'
The severability question is relevant for Frederick, whose amendment also had a provision about medical providers' handling of gun ownership information.
The amendment states that no health-care professional would be required to inquire about a patient’s firearm ownership; document or maintain in a patient's medical records whether that patient owns a firearm; or notify any governmental entity "of the identity of a patient based solely on the patient's status as an owner of a firearm."
Frederick — an orthopedic surgeon — said he decided to act after a longtime patient asked why one of his colleagues asked about firearms ownership. He then looked into the patient’s electronic medical record and saw a field for gun ownership status.
While he emphasized that physicians “should be able to discuss firearms issues with patients,” he added that he wanted to prevent any possibility of electronic health records being used “as a backdoor to establishing a gun registry.”
“If you think about the NSA and metadata analysis and the abuses of various entities in the government now, I think it’s a legitimate worry for patients to be concerned about whether so-called private information in their electronic health records is actually going to be kept private and not used for other purposes,” Frederick said.
Jeffrey Howell, the director of governmental relations for the Missouri State Medical Association, said in an e-mail that his group “didn’t have too much of a problem” with Frederick’s amendment. He said the wording “puts a restriction on the government instead of the individual physician.”
Howell said Frederick’s amendment was preferable to other bills that prohibited most medical professionals from asking patients about gun ownership. Frederick said his amendment is something of a compromise, adding medical conversations about guns shouldn’t be limited to psychiatrists and psychologists.
"If for instance in the case of an individual with Alzheimer’s in the house, that may be a time to say ‘you know Bill and Judy, if you’ve got any guns around the house, now would be a good time to lock them up,' " Frederick said. “Or say you have a troubled teenager in the house. That might be also an indication to have a discussion about guns, even if you’re not a mental health professional.”
“My concept was to sort of thread the needle — to not be so onerous with requirements that everybody has to report their gun ownership status,” he added.
On the Trail, a weekly column, weaves together some of the intriguing threads from the world of Missouri politics.
