HELENA, MT., March 12, 2015 – Today, the Montana Senate gave final approval to a bill seeking to block enforcement of future federal gun control measures. The vote was 27-22.
Introduced by Rep. Art Wittich, House Bill 203 (HB203) would prohibit the state “from enforcing, assisting in the enforcement of or otherwise cooperating in the enforcement of” a federal act enacted on or after Jan. 1, 2015 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 bill passed the state House last month by a vote of 58-42 and will now head to the governor’s desk for his signature. If he does not sign or veto the legislation within 10 days of bill transmittal, HB203 will become law without his signature.
Wittich said the measure was necessary in light of recent executive orders coming from the White House.
“The bill’s critics initially claimed that HB203 was an unnecessary and speculative measure,” he said. “However, some of the recent actions by Congress and the Obama administration attacking the 2nd Amendment and firearms freedom make the passage of this bill more urgent and necessary than ever.”
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” is an extremely effectively method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership in the states.
HB203 would leave the federal government to implement and enforce any such federal gun control measures on its own, with no state cooperation whatsoever. While the state of Montana would not actively interfere with federal enforcement efforts, its lack of participation and refusal to provide resources would effectively block such laws within Montana’s border. The federal government simply doesn’t have the resources to enforce these kinds of bans on its own.
The way this could play out, said David Kopel, an adjunct constitutional law professor at the University of Denver, is that if the federal government were to ban or further restrict any firearms, and then a local cop pulled someone over for a traffic violation and saw that firearm in the car, the cop could simply give the guy a ticket for the traffic violation and send him on his way.
And, as even the Huffington Post has recently acknowledged, “resources of the federal government are stretched thin,” and such bills would “have effects beyond a simple symbolic statement. ”
Fox News senior judicial analyst Judge Andrew Napolitano affirmed the strategy. In a recent televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
HB203 stirred some contentious debate on the Senate floor this week. Some of the rhetoric by opponents seemed to indicate they did not understand the legal basis of the bill.
One senator said the legislation would “violate federal law.”
“Federal law trumps state law. Any law that advocates violating federal law is a bad bill,” he said.
Sen. Scott Sales challenged the notion that every act of the federal government automatically counts as supreme.
“Article I Section 8 of the Constitution enumerates the powers of Congress, and it doesn’t say a darn thing in there about gun control. And it only makes sense that the supremacy clause only applies to those enumerated powers,” said Sales.
Tenth Amendment Center national communications director Mike Maharrey pointed out that constitutional issues aside, the bill doesn’t violate federal law, even if you accept that the federal government can constitutionally regulate firearms. It rests on a well-established legal doctrine.
“The bill does not violate anything,” he said. “It simply leaves the federal government to enforce its own laws without state assistance. Under the anti-commandeering doctrine, the Supreme Court has held since 1842 that the federal government cannot compel states to assist with enforcement of its acts. This is a great bill – if you care about limiting the federal government to its proper role. And it’s perfectly legal.”
HB203 is based on a legal doctrine known as anti-commandeering. This is a legal principle that the Supreme Court has upheld in cases from 1842 to 2012, saying that state resources cannot be “commandeered” on behalf of the federal government. The landmark case was the 1997 Printz case, where the Court held that local law enforcement could not be required to enforce the Brady Gun Control Act for the federal government.
For the majority, Justice Scalia wrote:
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 policymaking 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 noted Georgetown Law Constitutional Scholar Randy Barnett has said, “This line of cases is now 20 years old and considered well settled.”
Some of the arguments against HB203 fell into the category of “emotional.”
“Every day we recite the pledge of allegiance this nation and we describe it as one nation indivisible. And less than an hour later we’ve divided it up and the feds are the bad people and we need to be protected from them, and this goes against my grain. And it also goes against my grain because my husband was a federal law enforcement officer.”
Sen. Jennifer Fielder responded.
“This bill isn’t anti federal law enforcement. It’s about us setting up our own system of law as we feel are reasonable for Montana, she said. “Somebody said that this is about further dividing our nation – but pointing to the flag – notice what the flag is made of 13 stripes representing the 13 original colonies, 50 stars representing the 50 states. We are states. We have independent sovereign powers as states.”
“Citizens are increasingly realizing that the federal government is inventing “authority” over their rights, including those under the 2nd Amendment,” said Wittich. “States are similarly realizing they can and must refuse to participate in these improper regulatory expansions.”
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