LINCOLN, Neb. (Feb. 26, 2021) – On Wednesday, a Nebraska legislative committee held a hearing on a bill that would ban state and local enforcement of federal gun control; past, present and future. Passage into law would represent an important first step towards bringing those measures to an end within the state.
Sen. Steve Halloran (R) introduced Legislature Bill 188 (LB188) on Jan. 8. Titled the “Second Amendment Preservation Act,” the bill would prohibit state agencies and law enforcement officers from willfully enforcing 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.”
The proposed law would also bar any Nebraska government entity from utilizing assets, state funds, or funds allocated by the state to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement of the same.
State or local agents guilty of violating the act would be subject to civil penalties of up to $3,000 on the first offense and class I misdemeanor charges on a second offense. Local governments or agencies found guilty of violating the law would lose grant funds in the following fiscal year.
On Feb. 24, the Government, Military and Veterans Affairs Committee held a hearing on the bill. According to the North Platte Telegraph, two-dozen people testified in support of the bill and 238 people submitted letters of support. Only one person testified in opposition, a member of Nebraskans Against Gun Violence.
Nebraska State Police submitted their opposition in writing, citing a standard gun-grabber canard that gun control “protects” people, claiming that passage of LB188 “would unquestionably raise the chances of firearms ending up in the hands of felons, the mentally ill, perpetrators of domestic violence, or those prohibited by protection orders from possessing such firearms.”
While passage into law wouldn’t end all gun control in Nebraska today, it would represent a massive shift in strategy going forward. Once in effect, LB1888 would immediately do the following:
- Ban state and local enforcement of any federal gun control measures on the books that don’t have concurrent measures in law in the state of Nebraska.
- Ban state and local enforcement of any new gun control measures that might come from Washington D.C. in the future that aren’t on the books in Nebraska
- Shift the focus and attention to any remaining gun control measures on the books in state law
- Encourage gun rights activists to work in future legislative sessions to repeal those state-level gun control measures as a follow up.
Each state-level gun control repeal would then represent a one-two punch, not only ending state enforcement, but automatically ending support for any concurrent federal gun control measure as soon as the state law repeal went into effect.
According to NRA-ILA, under Nebraska law, there is no licensing requirement for ownership of rifles, shotguns or handguns. A permit to own or carry handguns is required, but not for rifles and shotguns.
The ATF has a pdf document which lists and details all state-level gun control measures in Nebraska, and would act as a handy guide for what could be repealed in the future.
The right to keep and bear arms in the state constitution is listed in Art. 1, Sec. 1.
“All persons … have certain … rights, among these are … the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.”
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 Nebraska 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”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
The Government, Military and Veterans Affairs Committee must hold a vote on LB188. It must pass by a majority vote before moving forward in the legislative process.