PHOENIX, Ariz. – (Feb. 23, 2016) – Yesterday, two important legislative committees in Arizona passed bills to prohibit the state from using personnel or resources to enforce various federal gun control measures, setting the foundation to nullify them in practice within the state.
Rep. Anthony Kern (R-Glendale), Rep. Darin Mitchell (R-Dist. 13) and Rep. Steve Montenegro (R-Avondale) filed House Bill 2300 (HB2300) in January with three other cosponsors. The legislation would prohibit any state or local agency and their employees from knowingly and willingly participating in any way in the enforcement of any future federal act, law, order, rule or regulation issued regarding a personal firearm, a firearm accessory or ammunition “that infringes the right to keep and bear arms guaranteed by the Second Amendment of the United States Constitution or that impairs that right in violation of Article 2, Section 26 of the Arizona constitution”
The bill would also ban the use of state assets or money in the enforcement of future federal gun laws.
Any local government found to have assisted in the enforcement of such federal gun laws in violation of the act would lose all of its state funding the following year. State or local employers would face criminal penalties for knowingly violating the law.
Sen. Sylvia Allen (R-Snowflake) introduced Senate Bill 1452 (SB1452) on Feb. 2. The legislation declares that “Any executive order or action that limits the rights guaranteed to a citizen of this state by the Second Amendment to the United States Constitution and that is not consistent with the constitutions of the United States and this state is an unlawful executive order or action and is not recognized in this state.” [emphasis added]
State and local government agencies and employees would be prohibited from enforcing, administering, or cooperating with any such executive orders or actions.
HB2300 was passed by the House Judiciary committee last week, and yesterday, the House Rules committee passed it with a 5-2 vote. SB1452 passed the Senate Federalism, Mandates and Fiscal Responsibility committee last week, and the Senate Rules committee gave it a “proper for consideration” passage yesterday. Both bills are likely to see some technical amendments introduced on the floor, as recommended by each rules committee. And the bills will go through a few procedural steps before each respective chamber has an opportunity to vote on the legislation.
EFFECTIVE
By removing the resources that the federal government relies upon to carry out enforcement, these bills would block some federal gun control measures in effect.
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. By withdrawing all resources and participation in federal gun control schemes, the states can effectively bring them down.
LEGAL BASIS
Each bill 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.”
IN PRACTICE
The Arizona state constitution reads, in part:
In his important study on the right to keep and bear arms in state constitutions, Constitutional Scholar Dave Kopel noted, “The Washington and Arizona Constitutions make explicit a principle which has been considered implicit in the Second Amendment: protection of an individual right “to bear arms” does not forbid the government from controlling large assemblies of armed men. Just a few years before the Washington Constitution was adopted, the U.S. Supreme Court upheld a state ban on armed parades in public, even as the Court plainly treated the Second Amendment as an individual right protected against federal infringement.”
As the NRA-ILA resource page for the state points out, Arizona doesn’t require licensing, a permit to carry, or registration for handguns, rifles and shotguns. It also has the Castle Doctrine enacted into law, right to carry in restaurants, and right to carry confidentiality, among other protections.
Under HB2300, any federal act, executive order, rule, regulation, or other measure that attempts to enact such restrictions would ensure that state or local enforcement of the federal gun control would be prohibited as violating “that right in violation of Article 2, Section 26 of the Arizona constitution.”
As Kopel suggested for a similar bill in another state last year, the way this could play out is that if the federal government were to ban or further restrict any firearms allowed under the Arizona state constitution, 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.
Recently-proposed federal measures, such as an M855 ammo ban would fall under the new law and state resources would be prohibited from being used to help the federal government enforce such a ban. And any attempt to re-enact the federal “assault weapons” ban, which expired in 2004, should meet the same level of resistance in Arizona.
The latter is an important focus for gun rights activists, as presidential candidate Hillary Clinton recently renewed her call for reinstatement of the ban. Her opponent, Bernie Sanders, has also called for more aggressive gun control measures.
Something that could be particularly notable is the federal Undetectable Firearms Act of 1988 (18 U.S.C. § 922(p)). The law is in effect until 2023 and “makes it illegal to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that is not as detectable by walk-through metal detection as a security exemplar containing 3.7 oz of steel, or any firearm with major components that do not generate an accurate image before standard airport imaging technology.”
No concurrent prohibition exists in Arizona.
SB1452 would have a similar effect, although more narrow, applying to executive orders or actions. If passed into law, the bill would require additional action to effectuate. The withdrawal of state cooperation depends on a finding of constitutionality – the executive order must be found to violate either the state or U.S. Constitution. The bill does not create any mechanism to make that determination. Before ending cooperation with a given executive order or action, some process must be put in place to evaluate its constitutionality.
The Arizona legislature could make SB1452 immediately effective by removing the requirement for a determination of constitutionality. But even without such a bold move, the bills work together to set a good foundation to build on, and could represent an important strategic step forward. As Thomas Jefferson wrote to James Madison about the passage of the Kentucky Resolutions of 1798, it’s important to be strategic:
I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.
WHAT’S NEXT
Both bills move to their respective full chamber for debate and further consideration.
TAKE ACTION IN SUPPORT
In Arizona: follow all the steps to support these bills at THIS LINK
All other states: contact your state legislator and encourage them to introduce similar legislation to stop federal gun control at this link.
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