JEFFERSON CITY, Mo. (Feb. 8, 2017) – A bill introduced in the Missouri House would ban the state from enforcement of all federal gun control. Passage into law would represent a major step towards ending federal acts that infringe on the right to keep and bear arms within the state in practice and effect.
Rep. Jeff Pogue (R-Salem) introduced House Bill 859 (HB859) on Feb. 7. Titled the “Second Amendment Preservation Act,” the legislation would ban any person, including any “public officer or employee of state state and its political subdivisions, from enforcing any present of future federal acts, laws, executive orders, administrative orders, court orders, rules, regulations, statutes, or ordinances that infringe on the right to keep and bear arms.”
HB859 includes a detailed definition of actions that qualify as infringement, including taxes and fees that would have a chilling effect on firearms ownership, registration and tracking schemes that would have a chilling effect, gun bans and gun confiscation.
The legislation includes a provision that would allow anybody who violates the law and knowingly deprives somebody of their right to keep and bear arms as defined by the law to be sued for damages in civil court.
“Sovereign, official, or qualified immunity shall not be an affirmative defense in such actions.”
HB859 also includes provisions that would apply to federal agents who who knowingly enforce or attempt to enforce any of the infringing acts identified in the law, or who give material aid and support to such enforcement efforts. Under the proposed law, they would “be permanently ineligible to serve as a law enforcement officer or to supervise law enforcement officers for the state or any political subdivision of the state.”
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effectively method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states can help bring these unconstitutional act to their much-needed end.”
Some gun rights supporters argue that such a measure is “unnecessary” because it addresses a nonexistent problem with a Republican Congress and an NRA-backed president.
“While we’re not expecting any new gun control to come from the federal government in the next few years, there’s still a lot of unconstitutional federal gun control measures on the books today,” Boldin said. “Whether it’s the National Firearms Act of 1934 or the Gun Control Act of 1968, plus many others – the states can build a sanctuary for the right to keep and bear arms against the unconstitutional ATF.”
HB859 rests on a well-established legal principle known as the anti-commandeering doctrine. Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.”
As of the writing of this report, HB859 had not been assigned to a committee. Once it receives an assignment, it will need to pass by a majority vote before moving forward in the legislative process.
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