SALT LAKE CITY, Utah (Feb. 26, 2021) – On Tuesday, the Utah House passed a bill that includes provisions to end state enforcement of future federal gun control. Passage into law would represent a major step toward nullifying in effect any future federal acts that infringe on the right to keep and bear arms within the state.
Rep. Cory Maloy (R) introduced House Bill 76 (HB76) on Jan. 19. The legislation would make several changes to existing statutes relating to the state regulation of firearms, asserting that “the Legislature occupies the whole field of state regulation of firearms and ammunition.”
Most significantly, a committee amendment gave the bill some punch. It would prohibit a state agency, local authority, or local education agency from adopting “a rule, order, ordinance, or policy under which the entity enforces, or by consistent action allows the enforcement of, a federal statute, order, rule, or regulation enacted on or after January 1, 2021, that purports to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation that does not exist under the laws of this state as of May 5, 2021.
State agencies or political subdivisions that violate the law would lose state grant funds the following fiscal year. The proposed law would also create a cause of action for individuals to file complaints against agencies violating the law with the state attorney general
On Feb. 23, the House passed HB76 by a 56-16 vote.
While passage into law wouldn’t end all gun control in Utah today, it would represent a massive shift going forward. Once in effect, HB76 would ban state enforcement of future federal gun control if there wasn’t a concurrent state regulation on the books as of May 5, 2021.
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 Utah 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.
HB76 now moves to the Senate for further consideration.
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