AUSTIN, Texas (Jan. 11, 2017) – A bill introduced in the Texas Senate would prohibit state cooperation with the enforcement any federal gun control measure that doesn’t exist under state law, setting the foundation to nullify them in effect within the state.
Sen. Konni Burton (R) filed Senate Bill 450 (SB450) on Jan. 9. The legislation would prohibit state and local law enforcement officers from enforcing virtually all federal gun control measures that don’t exist under state law.
Except as provided by Subsection (c), an agency of this state or a political subdivision of this state, and a law enforcement officer or other person employed by an agency of this state or a political subdivision of this state, may not contract with or in any other manner provide assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation or a registration requirement, that does not exist under the laws of this state.
SB450 would not interfere with federal enforcement of federal laws in the state, but would effectively withdraw all state cooperation from the implementation or enforcement of all federal gun laws, 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 Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control schemes, the states can effectively bring them down.”
While many gun rights advocates are not expecting any new federal gun control measures from a Trump administration backed by a Republican House and Senate, there are many federal gun control measures already on the books, dating as far back as 1934.
“This bill draws a line in the sand on federal gun control” said Scott Landreth of ShallNot.org. “Passage sets the foundation for rejecting every federal gun control measure – past, present, or future.”
Texas has no “assault weapon” law, no registration requirement, no state permit to purchase requirement, no owner license requirement, and no magazine capacity restriction.
The way this could play out is that if the federal government were to enforce any such federal laws in Texas, they would have to try to do it without any help from Texas law enforcement. This would mean Texas agents or employees wouldn’t knock on a door to serve a warrant, they wouldn’t help with traffic control when the federal agents were trying to conduct an operation, they wouldn’t share information, wouldn’t allow Texas prisons to temporarily hold or detain people arrested, and the like.
If a local cop pulled someone over for a traffic violation and saw a federally-banned firearm in the car that didn’t have a concurrent Texas ban, the cop could simply give the guy a ticket for the traffic violation and send him on his way.
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 Texas.
SB450 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.”
SB450 will first be assigned to a Senate to a committee where it will have to pass by a majority vote before moving forward in the legislative process. Similar bills have been filed by Rep. Matt Krause and Sen. Bob Hall.
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