HELENA, Mont. (Mar 1, 2021) – On Saturday, the Montana House passed a bill that would ban enforcement of any new federal gun control, a major step toward bringing such federal acts to an end within the state.
Rep. Jedediah Hinkle (R-Belgrade) introduced House Bill 258 (HB258) on Jan. 27. The legislation would prohibit police officers, state employees, and employees of any political subdivision of the state from enforcing, assisting in the enforcement of, or otherwise cooperating in the enforcement of a “federal ban” on firearms, magazines, or ammunition.
HB258 defines “federal ban” as “a federal law, executive order, rule, regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, or a new and more restrictive interpretation of an existing law that existed on January 1, 2021, that infringes upon, calls in question, or prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, any magazine or other ammunition feeding device, or other firearm accessory.”
It would also bar them from participating in federal enforcement actions and prohibit the expenditure or allocation of public funds or resources for such enforcement. The proposed law is the second priority bill of the legislative session from the Montana Shooting Sports Association (MSSA). A permitless carry bill was signed into law earlier this month.
Last Wednesday, the House judiciary committee passed HB258 with some amendments. Over the weekend, the full House passed the bill by 66-33, a straight party-line vote.
LAW ENFORCEMENT LOBBY OPPOSITION
As introduced, HB258 would have applied to all federal gun control with some prescribed exceptions. But after some aggressive opposition to the bill from the Montana Sheriffs and Peace Officers Association, the bill was tabled and effectively dead in the committee. The Montana Daily Gazette reported:
Montana Daily Gazette has learned that the sticking point in the bill for the MSPOA is the term “violent.” Specifically, the MSPOA wants the term “violent” to be removed when determining which level of a felony can trigger the removal of someone’s firearms. In short, the MSPOA wants the power to remove the firearms of all felons, even for a non-violent process crime.
HB 258 failed in committee with a vote of 4-15. Voting for HB 258 were Reps.: Phalen, Lenz, Ler, and Hinkle.
Voting against were Reps.: Regier, Kelker, Carlson, Stromswold, Berglee, Fleming, Stafman, Gillette, Tenenbaum, Bishop, Hawk, Skees, Farris-Olsen, France, and Usher.
Amendments were necessary to get the bill moving again. Gary Marbut of MSSA wrote, “HB 258 is intended to protect Montana from the raft of gun control laws, executive orders, rules, and regulations that are expected to be pushed on us by the Biden administration and the new Congress.”
Marbut said law enforcement officers he spoke with support the bill because they don’t want to enforce a bunch of new federal gun control rules. “Not only would such enforcement distract them from important local policing needs; it could be risky.”
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 Montana 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 Montana legislature passed similar legislation three times, in 2013, 2015 and 2017, but then-Governor Steve Bullock vetoed it all three times.
HB258 will now move to the Senate, where it will first have to pass through the committee process before the full chamber has an opportunity to concur.