CHARLESTON, W. Va. (Feb. 21, 2021) – A bill introduced in the West Virginia Senate would take on federal gun control; past, present and future. Passage into law would represent a major step toward ending federal acts that infringe on the right to keep and bear arms within the state.

Sen. Eric Tarr, along with coalition of 20 cosponsors introduced Senate Bill 353 (SB353) on Feb. 18. The proposed law would end state enforcement of any federal gun control that isn’t covered by state law. The legislation would ban the state, a political subdivision of the state, or employee of an agency or political subdivision of this state acting in his or her official capacity, from “knowingly and willingly participating in any way in the enforcement of any federal act, law, order, rule, or regulation regarding a firearm, firearm accessory, or ammunition if the act, law, order, rule, or regulation does not exist under the laws of this state.”

SB353 would also prohibit using any assets, state funds, or funds allocated by the state to local entities for the enforcement of such federal acts.

State agents or employees who violate the law would be subject to a civil penalty not to exceed $3,000 on the first offense. A second violation would carry misdemeanor criminal charges. A political subdivision violating the law would lose state funding in the following fiscal year.

STRATEGY

While passage into law wouldn’t end all gun control in West Virginia today, it would represent a  massive shift in strategy going forward.  Once in effect, SB353 would immediately do the following:

  1. 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 West Virginia.
  2. 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 West Virginia
  3. Shift the focus and attention to any remaining gun control measures on the books in state law
  4. 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.

WEST VIRGINIA LAWS

According to NRA-ILA, under West Virginia law, there is no licensing requirement for ownership of rifles, shotguns or handguns. And no permit to carry or registration of firearms are on the books either.

The ATF has a pdf document which lists and details all state-level gun control measures in West Virginia, and would act as a handy guide for what could be repealed in the future.

The right to keep and bear arms West Virginia Constitution is listed in Article III, §3–22:

A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.

EFFECTIVE

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.”

LEGAL BASIS

The state of West Virginia 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.

WHAT’S NEXT

SB353 was referred to the Senate Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process. Eleven of the 17 members on the Committee are currently cosponsors.

West Virginia Residents who support the bill are encouraged to contact all members of the committee, and firmly, but respectfully urge a YES vote on SB353. Find all committee members at this link


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