CONCORD, N.H. (March 25, 2021) – Yesterday, a New Hampshire Senate committee passed a bill that would ban enforcement of future presidential executive orders that restrict the right to keep and bear arms, setting the foundation to nullify such orders in practice and effect.
A coalition of nine Republicans introduced Senate Bill 154 (SB154) on Feb. 4. The legislation would prohibit any person acting under color of state law or as an agent of the state from taking any action, expending any funds, or exercising any powers of the state of New Hampshire “to enforce any executive order of the president of the United States, issued after January 20, 2021, that has the purpose or effect of restricting, limiting, encumbering, regulating, or placing conditions upon the right of the people to keep and bear arms pursuant to the Second Amendment to the United States Constitution and Part I, Art. 2-a and Art. 24 of the New Hampshire constitution.”
SB154 includes specific examples of executive orders that would be unenforceable. In effect, SB154 would bar state and local enforcement of any EO relating to “firearms, firearms components, firearms magazines and loading devices, ammunition, firearms supplies, knives, and any other weapons or armaments not prohibited by state law.”
On March 24, the Senate Judiciary Committee approved SB154 with an “ought to pass” recommendation by a 3-2 vote.
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 New Hampshire 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.
SB154 will move to the full Senate for further consideration.
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