PIERRE, S.D. (March 4, 2016) –  Four Republican senate committee members joined a pair of Democrats to kill a non-binding resolution in the South Dakota legislature that would have reaffirmed the fundamental, natural right to keep and bear arms.

The measure passed the South Dakota House by an overwhelming 62-4 vote before the Senate Judiciary Committee killed the measure by a 6-1 vote. Republican senators Arthur Rusch, Mike Vehle, David Novstrup and Craig Tieszen joined the two Democrats on the committee in voting to defer the bill to the 41st legislative day, a procedural move effectively killing it.

A coalition of more than two-dozen representatives and senators introduced House Concurrent Resolution 1009 (HCR1099) on Feb. 4. The resolution affirmed the right to keep and bear arms and declared that the state has a duty to protect that right.

“It is the duty of the Legislature and its members to protect and defend the Constitution of the United States and the Constitution of South Dakota.”

The resolution went on to establish that the state legislature has a duty to take any measures necessary to resist any attempts to commandeer state personnel or resources for the purpose of enforcing federal gun control.

“Current and proposed executive actions by the President of the United States relating to the acquisition, possession, and use of firearms and accessories goes beyond the President’s powers under the Constitution of the United States and violates the rights of all citizens and it is the duty of the South Dakota Legislature to adopt and enact any and all measures as may be necessary to prevent the enforcement of any federal act, law, order, rule, or regulation which attempts to commandeer local or state law enforcement officers to enforce federal restrictions on firearms in violation of the Constitution of the United States.”

The resolution specifically mentioned a legal principle known as the anti-commandeering doctrine.

“WHEREAS, in the case of Printz v. United States the United States Supreme Court affirmed that the federal government does not have the authority to commandeer local or state agents to enforce federal.”

While passage of the resolution would not have legally bound the South Dakota legislature to refuse cooperation with enforcement of federal gun control, it would have set the stage for further action. It would have also firmly establish the legal basis for future bills refusing cooperation with federal enforcement under the anti-commandeering doctrine, removing an important barrier to getting legally binding legislation passed.

Despite the bill’s demise in the Senate, passage in the House represents a positive step. It placed all of those who voted for it on record as supporting the idea and makes it much more difficult for them to oppose future legislation.

Some activists view resolutions as a waste of time, but sometimes it takes a small first step to get the ball rolling. In the past, states that passed Tenth Amendment resolutions were much more likely to later pass substantive legislation blocking federal power.

Starting in 1767, in response to the Townshend Acts, John Dickinson, often referred to as “the Penman of the Revolution” wrote a series of 12 essays known as “Letters from a Farmer in Pennsylvania.”

In his first, he spent time discussing the last of the acts, the New York Restraining Act, which was punishment for the Assembly of New York, suspending its legislative powers for failing to fully comply with orders from the crown. He continued to say that, in essence, the rightful response at that moment would have been for other assemblies to have passed a non-binding resolution informing parliament that the act was a violation of rights and that it should be repealed.

Why? His answer came through clearly in his signature, where he wrote the Latin phrase, Concordia res parvae crescunt – small things grow great by concord.

Passage of HCR1099 may seem a small thing, but it would have set the stage for more aggressive action in the future.

Mike Maharrey

The 10th Amendment

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