PIERRE, S.D. (March 25, 2021) – Earlier this month, the South Dakota Senate voted down a bill that would prohibit state and local officials from enforcing federal “extreme risk” protective orders – sometimes referred to as red flag laws – that require gun confiscation. Passage of the bill would not only have protected liberty in South Dakota; it would also have hindered federal efforts to restrict the right to keep and bear arms.
Rep. Aaron Aylward (R-Harrisburg) along with 17 Republican cosponsors, introduced House Bill 1075 (HB1075) on Jan. 22. Under the proposed law, state agencies and political subdivisions, along with any appointed or elected officials, would be prohibited from enforcing an extreme protection order against a resident of the state. State agencies and political subdivisions would also be barred from accepting any federal funds “that are directly or indirectly conditioned on the creation, imposition, or enforcement of an extreme risk protection order, as described in this section, including such an ex parte order.”
HB1075 defines an extreme risk order as any federal statute, regulation, or executive order that requires a person to surrender firearms or ammunition, or prohibits a person from owning firearms or ammunition in order to “reduce the harm to himself, herself or another.”
Extreme risk orders violate a person’s right to due process and their right to keep and bear arms by seizing their property without them being arrested and charged with a crime, let alone trial and conviction.
In February, the House passed HB1075 by a 59-7 vote. However, it failed in a Senate committee by a vote of 8-1 – with 7 votes coming from Republicans. Soon after, a motion was made to bring the bill to the Senate floor, which requires a vote in the full chamber. This attempt also failed in the Senate by a 12-23 vote. Twenty Republicans joined the three Senate Democrats to kill the bill.
In effect, these “pro-gun” Republicans voted to support and enforce any federal “red flag” legislation that comes down the pike.
If Americans want to protect their gun rights, the answer isn’t in hiring the right lobbyists, or donating to the right political campaign, or joining the NRA. It’s taking action where you live and putting as many obstacles to unconstitutional laws in place as you can – right now, and before any new ones arise.
The threat of new and more intrusive violations of our right to keep and bear arms never goes away, regardless of election outcomes. Suffice to say, federal courts can’t be trusted to strike down illegal measures, either.
James Madison understood this well, which is why he advocated in Federalist #46 that “refusal to cooperate with officers of the union” would be an effective means of preventing the feds from stepping outside their constitutional bounds.
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 can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
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 South Dakota 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.
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