CHEYENNE, Wyo. (March 26, 2021) – On Wednesday, Wyoming Senate Republicans gutted a bill that would have banned the state from participating in federal gun control enforcement; past, present and future. Passage into law would have represented a major step toward ending federal acts that infringe on the right to keep and bear arms within the state.
A coalition of 19 Republicans and a Libertarian introduced Senate Bill 81 (SF81) on Feb. 3. As introduced, the legislation would have banned any person, including any public officer or employee of the state and its political subdivisions, from enforcing any past, present or future federal “acts, laws, executive orders, administrative orders, court orders, rules, and regulations that infringe on the right to keep and bear arms. The bill included a detailed definition of actions that qualify as “infringement,” including but not limited to:
- taxes and fees on firearms, firearm accessories, or ammunition not common to all other goods and services that would have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
- registration and tracking schemes applied to firearms, firearm accessories, or ammunition that would have a chilling effect;
- any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens;
- any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.
On the Senate floor, Sen. Larry Hicks introduced an amendment that watered down the legislation nearly to the point of uselessness. Wyoming Gun Owners policy director Aaron Dorr said. “This bill has been killed. It has been utterly destroyed.”
“It has been a shameful treatment of our gun rights by the ‘most pro-gun legislature’ in America,” Dorr said.
The amended version of SF81 creates an unnecessary process to “review” future federal gun control. Under the proposed law 25 or more Wyoming residents could petition to request a review of any future federal gun control [federal action] by the state attorney general. The AG would be required to review the federal action and issue a determination of constitutionality.
IF the AG determines the federal action unconstitutional AND the Wyoming governor makes an independent determination in agreement, the governor MAY issue an executive order blocking enforcement of the federal act, IF he thinks it’s “in the best interests of the state.”
Given the multiple layers of decision-making and the fact that the proposed law wouldn’t require the governor to do anything, it’s almost certain that the state would never prohibit any federal action or end enforcement of any federal gun control under this law.
The Republican-dominated Senate approved the amendment 23-7 and then passed the amended version of SF81 by a 24-6 vote.
Wyoming law enforcement lobbyists opposed the bill and put significant pressure on legislators to amend it or vote it down. Wyoming Association of Sheriffs and Chiefs of Police lobbyist Byron Oedekoven testified against the bill in committee and every Wyoming sheriff signed a letter in opposition. Republicans hid behind Oedekoven testimony and the sheriffs’ opposition to claim voting to protect the Second Amendment would be “anti-cop.”
“So, I want you to understand, your sheriff signed on to a letter, that was written by Byron Oedekoven, who is anti-gun to the bone,” Dorr said.
This is yet another example of Republicans passing legislation begging for permission to protect the Second Amendment. Republicans in Tennessee pulled a similar trick.
The state of Wyoming does not need permission or a determination of constitutionality on federal gun control from the attorney general, a court, or anybody else. The legislature can ban enforcement of specific acts anytime it wants for any reason. No determination of constitutionality is necessary. It can ban enforcement of all federal gun control simply because it’s Tuesday and there’s snow on the ground. The Supreme Court agrees.
“If Wyoming legislators were serious about creating a ‘Second Amendment Sanctuary’ state, they wouldn’t be waiting for permission from the attorney general, the governor, or anybody else. They’d end state and local participation in federal gun control right now,” Tenth Amendment Center executive director Michael Boldin said.
The courts have already given the states the “permission” they need to opt out of federal enforcement schemes. 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 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,” Boldin said. “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.”
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