OKLAHOMA CITY, Okla. (March 11, 2021) – This week, the Oklahoma Senate passed a bill claiming to make Oklahoma a “Second Amendment Sanctuary State.” But as written, the bill doesn’t create a sanctuary for anything.
A coalition of Republicans introduced Senate Bill 631 (SB631) on Feb. 1. Titled the “Second Amendment Sanctuary State Act,” the legislation would have little to no practical effect. As written, it’s really nothing more than a non-binding resolution.
The proposed law declares the following:
“Any federal, state, county or municipal act, law, executive order, administrative order, court order, rule, policy or regulation ordering the buy-back, confiscation or surrender of firearms, firearm accessories or ammunition from law-abiding citizens of this state shall be considered an infringement on the rights of citizens to keep and bear arms as guaranteed by the Second Amendment of the Constitution of the United States and Article II, Section 26 of the Constitution of Oklahoma.”
Under the law, it would be “the duty of the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens to keep and to bear arms within the borders of this state and to protect these rights from the infringement provided under the provisions of this act.” But SB631 does not require any specific action to fulfill this “duty.” Lacking any specific actions or prohibition on actions for police or courts to follow, it’s almost certain they will take no action at all, instead deferring to the courts on any question of constitutionality.
In effect, the enactment of SB631 in its current form would function as little more than a non-binding resolution. It lacks any specific action that courts and law enforcement agencies must take or end to “protect the rights of law-abiding citizens.” As noted above, the proposed law creates a “duty” without any concrete steps to fulfill it. Lacking any specific actions or prohibition on actions for police or courts to follow, it seems unlikely they will take any action at all.
The proposed law could be given a practical impact by expressly prohibiting state agencies, including police, from using personnel or resources to enforce federal acts defined by the law as “infringement.” For example, Section 2C should be amended to read as follows:
Other than compliance with an order of the court, notwithstanding any law, regulation, rule or order to the contrary, no agency of this state, political subdivision of this state, or employee of an agency or political subdivision of this state acting in his or her official capacity shall:
(1) Knowingly and willingly participate 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.
(2) Utilize any assets, state funds, or funds allocated by the state to local entities on or after the effective date of this act, in whole or in part, to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement or any investigation pursuant to 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.
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 Oklahoma 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.
SB631 will move to the House for further consideration. Once referred to a House committee, sponsors and other legislators involved in the hearing can propose amendments to improve the bill, such as recommended above.
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