JACKSON, Miss. (Feb. 1, 2021) – A bill filed in the Mississippi Senate would set the foundation to create a “gun rights sanctuary state” by banning state and local enforcement of most federal gun control. Passage into law would take the first step toward ending federal acts that infringe on the right to keep and bear arms within the state in practice and effect.
Sen. Melanie Sojourner (R-Natchez) introduced Senate Bill 2564 (SB2564) on Jan. 18. The legislation declares that “all federal acts, laws, orders, rules and regulations, whether past, present or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Article I, Section 12 of the Mississippi Constitution of 1890, shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state and have no effect in this state.”
The bill further states that no public state officials have any authority to enforce any of these violations of the right to keep and bear arms. Anyone, including federal employees, who attempt to enforce them, would be guilty of a misdemeanor. The legislation includes a provision that allows private citizens to file “a private cause of action for declaratory judgment and for damages against any person or entity attempting such enforcement.
Passage of SB2564 would take the first step toward ending the enforcement of federal gun control in the state, but because it does not list specific acts that violate the “Second Amendment to the United States Constitution and Article I, Section 12 of the Mississippi Constitution of 1890,” the law would rely on state courts to make a determination of constitutionality before the state could prohibit enforcement. HB2564 would be stronger if it listed specific acts the state would not enforce. This would take the courts out of the equation and immediately end enforcement of such acts.
While the bill would ultimately rely on the courts to determine whether a violation has in fact occurred, the bill would be an important foundation for future legislation further protecting the right of Mississippi residents to keep and bear arms.
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 many federal actions in effect. 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 acts to their much-needed end.”
The state of Mississippi 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 policymaking 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”
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 a 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 Mississippi and would certainly gum up the works even if they were never prosecuted.
SB2564 has been referred to the Judiciary, Division B Committee where it must pass by a majority vote before moving forward in the legislative process.
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