CHARLESTON, W. Va. (Jan. 17, 2019) – A bill introduced in the West Virginia House would nullify all state and local gun control regulations and help to create a “sanctuary” for gun owners in that state.
Delegate Pat McGeehan (R-Hancock) introduced House Bill 2170 (HB2170) on Jan. 9. The legislation would make all future federal, state and local statutes, ordinances, laws, orders and rules concerning firearms, firearm accessories, ammunition and their accouterments invalid and unenforceable within the state.
The bill reads, in part:
All current and future federal, state, and local statutes, ordinances, laws, orders, rules, and any other actions which attempt to restrict, tax, or regulate the possession, use, discharge in lawful self-defense, transportation, purchase, acquisition, sale, transfer, ownership, carrying, manufacture, or repair of firearms, firearm accessories, ammunition and their accouterments contradict the true meaning and original intent of the Second Amendment to the Constitution of the United States and Section twenty-two, Article III of the Constitution of the State of West Virginia. Those statutes, ordinances, laws, orders and rules which violate the Constitution of the United States and the Constitution of the State of West Virginia are invalid, and therefore, are null and void.
Under the proposed law, any person who attempts to enforce any future federal, state or local gun control laws would be guilty of a felony and if convicted would face up to two years in prison and a fine of up to $10,000.
HB1270 would also obligate the state attorney general to defend any citizen of West Virginia prosecuted by the United States Government for violation of a federal law relating to the possession, use, discharge in lawful self-defense, transportation, purchase, acquisition, sale, transfer, ownership, carrying, manufacture, or repair of a firearm, a firearm accessory or ammunition.
With so many activists and organizations putting all their energy into how to protect gun rights in D.C., bills like HB2170 serve as an excellent example of how to resist federal gun control at the state level. The spirit of its text is in keeping with a “refusal to cooperate with officers of the Union” as James Madison’s put in Federalist #46. It deprives the feds of critical state resources necessary to make enforcement of these laws viable. That alone is enough to make these laws DOA in the state.
If enough states followed suit, the collective action would moot any future proposals by even the most ardent gun grabbers in D.C.
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 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” provides 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.
“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.”
Boldin also noted how the same strategy is being used effectively elsewhere.
“No one – and I mean no one – is arguing that immigration sanctuary cities aren’t having an effect on federal immigration law. This bill in North Dakota uses the same approach of withdrawing resources and enforcement support, but it takes on federal gun control,” he said. “More conservative states should do the exact same thing.”
HB2170 represents a strategic yet powerful step forward.
After Donald Trump was elected, a lot of activists argued such a state measure was “unnecessary” because it addressed a “nonexistent problem” with a Republican-controlled Congress and an NRA-backed president. But as we learned with the implementation of Trump’s bump-stock ban, electing Republicans to office doesn’t guarantee the protection of your right to keep and bear arms. And we’ve already seen a shift in political power with Democrats taking control of the U.S. House.
Boldin said states always need to push back against federal gun control, no matter who holds power at the time, and even if we don’t think new gun laws are coming down the pike.
“Even if we hadn’t gotten new gun control, there’s still a lot of unconstitutional federal gun control measures on the books today. Whether it’s the National Firearms Act of 1934 or the Gun Control Act of 1968, plus many others – the states can build a constitutional wall that protects them from the unconstitutional ATF.”
PRACTICAL IMPACT AND LEGAL BASIS
The state of West Virginia can legally bar state and local agents from enforcing federal gun control. Refusal to cooperate with federal enforcement 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. U.S. 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 sovereign
As we’ve explained in the past, practically speaking, it would be extremely difficult for the state to prosecute federal agents for enforcing federal law. Under federal statutes, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.
Nevertheless, the threat of arrest would create problems for federal agents trying to enforce unconstitutional gun laws in West Virginia and would certainly gum up the works even if they were never prosecuted.
Next: HB2170 has been referred to the House Committee on the Judiciary, where it will have to pass by a majority vote before it can advance.