COLUMBIA, S.C. (Nov. 25, 2019) – A bill prefiled in the South Carolina House would take a step toward creating a “gun rights sanctuary state” by banning state and local enforcement of any future federal gun control. Passage into law would represent an important foundational step toward undermining federal acts that infringe on the right to keep and bear arms within the state.
Rep. Stewart Jones (R-Laurens) filed House Bill 4704 (H.4704) on Nov. 20. Titled the “Second Amendment Preservation Act,” the legislation would ban the allocation of public funds, personnel, or property for the implementation, regulation, or enforcement of any executive orders, presidential directives or acts of the United States Congress passed after Jan. 1, 2020, that regulate the ownership, use, or possession of firearms, ammunition, or firearm accessories.
In August, Jones and 40 of his colleagues in the South Carolina General Assembly sent a letter to President Trump and the South Carolina congressional delegation warning about the dangers of Red Flag legislation. While the administration seems to have backed off from federal red flag laws, there are now plans being floated to incentivize states to enforce their own red flag laws.
“Unfortunately, there is now talk about pushing federal funding to states that will enforce red flag laws and potentially other gun confiscation methods. I am calling on state legislators across the United States to send a message to the federal government by passing the Second Amendment Preservation Act in order to prohibit any infringement on our right to keep and bear arms … The Founding Fathers warned us to never trade liberty for security, but that is exactly what is happening before our very eyes.”
On March 20, 2014, Idaho Gov. Butch Otter signed a similar bill that effectively nullifies any federal gun laws passed after that date.
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 Governors’ 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 have argued that such a measure is “unnecessary” because it addresses a nonexistent problem with an NRA-backed president. Trump’s bump stock ban obliterates this fallacy. Furthermore, the Trump administration actually ramped up enforcement of federal gun laws in 2017.
The state of South Carolina can legally bar state 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 sovereignty”
H.4704 will be officially introduced and referred to the House Judiciary Committee when the regular session begins Jan. 13, 2020. It will need to pass by a majority vote before moving forward in the legislative process.
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