HELENA, Mont. (Feb. 22, 2017) – Today, the Montana Senate passed a bill would prohibit state enforcement of federal control on firearms, magazines or ammunition. If passed, the law would effectively stop any such federal acts in practice within the state.
Sen. Cary Smith (R-Billings) introduced Senate Bill 99 (SB99) on Jan. 9. The legislation would prohibit any state or local government employee, law enforcement officers, from enforcing, assisting in the enforcement of, or in any way cooperating with enforcement of a federal ban on firearms, magazines, or ammunition. The proposed law specifically prohibits participating in any federal enforcement action implementing such a ban.
SB99 includes a broad definition of “federal ban.”
“Federal ban” means a federal law or executive order that prohibits, restricts, or requires individual licensure for ownership, possession, transfer, or use of any firearm or any magazine or other ammunition feeding device.
The legislation would also prohibit expending or allocating public funds or resources for the enforcement of such federal acts on firearms, magazines or ammunition.
SB99 passed the Senate by a 30-20 vote.
An amendment in the Judiciary Committee added ammunition to the bill. If passed, it would immediately end any state cooperation with enforcement of an executive order Pres. Obama signed just before leaving office. Director’s Order No. 219 of the Fish and Wildlife Service (FWS) bans lead-based ammunition on federal lands including national parks and wildlife refuges, as well as any other land administered by the Fish and Wildlife Service.
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 federal gun control on the books today, and it all needs to be rejected” said Michael Boldin of the Tenth Amendment Center.
“This bill would help create a gun rights sanctuary in the entire state of Montana,” Boldin said.
Passage of SB99 would effectively withdraw all state cooperation from the implementation or enforcement of federal gun bans, an effective method to nullify them in practice.
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.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun laws. 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.”
“Partnerships don’t work too well when half the team quits,” said Boldin. “By withdrawing all resources and participation in federal gun control schemes, the states can effectively bring them down.”
SB99 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.”
SB99 does include a few exceptions. It would not apply to the possession of a fully automatic firearm, the enforcement of any federal or state law prohibiting a convicted felon from possessing a firearm, the enforcement of any federal or state law prohibiting a person convicted of domestic violence from possessing a firearm, or the enforcement of a protection order.
SB99 now moves to the House for further consideration.
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