COLUMBIA, S.C. (May 12, 2016) –  Yesterday, a South Carolina Senate committee passed a bill banning the enforcement of any future federal gun control measures. If signed into law, this would render them “nearly impossible to enforce,” but it faces an uphill battle to get a vote on the Senate floor.

Rep. Mike Pitts introduced House Bill 4701 (H4701) on Jan. 19. Titled the Second Amendment Preservation Act, the bill garnered 31 cosponsors and passed by House by a 64-30 vote on March 3. Four Democrats joined with Republicans in support of the measure.

The legislation would prohibit the state from enforcing any federal law, rule, or regulation taking effect after January 1, 2016, that limits the right of a person to own, possess, or use a firearm, ammunition, or firearm accessories. The bill would also prohibit the state from accepting any federal funds related to any future law, rule, or regulation, that requires firearms to be registered or confiscated. Finally, the bill would bar the state from expending any funds for the enforcement of such laws, rules or regulations.


The Senate Judiciary Committee issued a majority favorable report, effectively passing it, but a minority “unfavorable report” was also attached by Sen. Marlon Kimpson (D-Charleston). This creates a high hurdle H4701 must overcome to get to the Senate floor for debate and a vote.

Under Senate rules the bill must be put on “special order” by a motion on the Senate floor. This would allow the Senate to take up the legislation immediately or schedule it for another debate. It requires a 2/3 majority to approve such a motion. An amendment could also be proposed to satisfy those signing onto the unfavorable minority report.


If ultimately passed into law, H4701 would would withdraw all state cooperation from the implementation or enforcement of any future federal gun control measures, including executive orders, agency rules, or laws passed by Congress.

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 effective 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.

Louisiana gun-rights activist Trevor Ray put it this way in a comment on Facebook, “While the FBI/ATF can still operate business as usual, they couldn’t effectively investigate and enforce these laws without the local/state authorities handling most of the legwork and logistics, they’re usually just the purse strings.”

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 practice 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.


But H4701 rests on a well-established legal principle known as the anti-commandeering doctrine, which is based primarily on four Supreme Court cases dating back to 1842.. Simply put, the federal government cannot force states to help implement or enforce any federal act or program, which is exactly in line with the text of H4701. The 1997 case, 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 his important study on the right to keep and bear arms in state constitutions, Constitutional Scholar Dave Kopel noted,

“Like North Carolina, Alaska, and Hawaii, the state of South Carolina adopted the Second Amendment verbatim. South Carolina also copied North Carolina’s language denouncing standing armies: “A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it.”

In South Carolina, the state constitutional right to arms, with the exact same language as the Second Amendment, is read just as it is in Alaska, Hawaii, and North Carolina: as guaranteeing a right of individuals to bear arms.” [emphasis added]

As the NRA-ILA resource page for the state points out, South Carolina doesn’t require licensing or registration for handguns, rifles and shotguns. A permit is required to carry handguns, but not rifles or shotguns. The state also has the Castle Doctrine enacted into law, right to carry in restaurants, and right to carry confidentiality, among other protections.

Under H4701, 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 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 South Carolina 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 South Carolina.

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 South Carolina.


In South Carolina, follow all the steps to support this bill 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.

Mike Maharrey

The 10th Amendment

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