GRANTS PASS, Ore. (Aug. 1, 2018) – Last week, the Josephine County, Oregon, Board of Commissioners unanimously passed an ordinance that will end local enforcement of some state and federal gun control laws.
Commissioner Simon Hare introduced the Josephine County Firearms Ordinance. The new law bars any county law enforcement agency from using public funds, tax dollars or personnel “for the purpose of investigating, detecting, apprehending, or incarcerating persons whose only violation of law is that they carry, manufacture, import, possess, purchase, sell or transfer firearms or firearm related items.” It applies the same prohibition to “investigating, detecting, apprehending, or incarcerating persons whose only violation of law is that they fail to secure, lock, register, or report the loss or theft of firearms or firearm related items.”
This prohibition of enforcement applies to both federal and state laws currently on the books, and would also apply to any gun control laws passed in the future.
This ordinance will end county enforcement of some federal firearms laws already on the books. For instance, under the Gun Control Act of 1968, it is illegal for an unlicensed individual to transfer a firearm to somebody out of state. It also places restrictions on importing firearms into a state. The National Firearms Act of 1934 restricts ownership of machine guns, and some short-barrelled rifles and shotguns. Under the new county ordinance, local police will not enforce these laws.
Supporters in Oregon said they consider passage of this ordinance a good first step and an important precedent. Activists say ideally, they would like to counties adopt these measure through a more permanent county charter amendment – a move that is similar to amending a state constitution.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities 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.”
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 state and local governments.
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.
“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, states and even local governments can help bring these unconstitutional act to their much-needed end.”
Some gun rights supporters argue that such a measure is “unnecessary” because it addresses a nonexistent problem with a Republican Congress and an NRA-backed president. In fact, the Trump administration actually ramped up enforcement of federal gun laws in 2017.
The Josephine County Firearms Ordinance 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 five 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.”