BOISE, Idaho (March 22, 2021) – A bill introduced in the Idaho House claims to protect the Second Amendment, specifically “small arms,” but in reality, it wouldn’t protect anything at all.
The House State Affairs Committee introduced House Bill 300 (H300) on March 8. Tiled the “Idaho Small Arms Protection Act,” the legislation declares that “no official, agent, or employee of the state of Idaho, or a political subdivision thereof, shall be required to assist with any federal action on or after the effective date of this section if such federal action is contrary to the provisions of Idaho Code or section 11, Article I, of the constitution of the state of Idaho.
Ostensibly, the legislation would attempt stop the enforcement of certain federal actions relating to firearms, including “the acts of any federal agent or official, any enforcement of any federal executive order, the collection and enforcement of any federal tax, agency order, law, statute, rule, or regulation issued, enacted, or promulgated on or after the effective date of this section.”
But in practice, H300 would not prohibit anything.
There are two glaring problems with the language in this bill.
First, saying a state agent “isn’t required” to assist a federal action doesn’t bar him/her from doing so. The language would allow state agents to voluntarily assist a federal action, as long as it’s not “required.”
Second, the bill would require further action to effectuate. A court would have to deem the federal action contrary to Idaho law or the state constitution before enforcement would actually end. Government agents will almost certainly assume that a federal action is constitutional until some court tells them otherwise. After all, it’s not their job to determine the constitutionality of an action. They are just required to enforce the law as written.
The proposed law could be given a practical impact by changing the two sections of the text.
- Replace “shall be required to assist” to “shall assist.” “No official, agent, or employee of the state of Idaho, or a political subdivision thereof, shall assist with any federal action…”
- Replace “if such federal action is contrary to the provisions of Idaho Code or section 11, Article I, of the constitution of the state of Idaho” with “if such federal action is not supported under the laws of this state.”
This language would place a blanket prohibition on assisting federal actions that aren’t supported by a specific state law, leaving nothing to discretion.
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 Idaho 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.
H300 was referred to the House State Affairs Committee where it must pass by a majority vote before moving forward in the legislative process.
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