MONTGOMERY, Ala. (April 28, 2021) – Yesterday, an Alabama House committee passed a bill that would set the foundation to end enforcement of future presidential executive orders relating to firearms. Passage into law would represent a small step toward neutering future federal gun control in Alabama.
Sen. Gerald Allen (R) introduced Senate Bill 358 (SB358) on March 30. The subsitiute bill passed by the House Committee on Public Safety and Homeland Security would ban state or local enforcement of future presidential executive orders that “limit or restrict the ownership, use, or possession of firearms, ammunition, or firearm accessories by law-abiding residents of the state.” It would also ban the use of public funds by the state or its political subdivisions for enforcement of the same.
As passed by the Senate, SB358 would ban state and local enforcement of future executive orders along with any other future laws passed by Congress relating to firearms. But that was a bridge too far for law enforcement lobby groups, which aggressively opposed the bill in a House Committee hearing.
Lee County Sheriff Jay Jones said he was concerned the measure would endanger relationships state and county law enforcement entities have with federal agencies on joint task forces addressing terrorism response, drug enforcement, and other matters.
Randy Hillman of the Alabama Sheriffs’ Association sided with Harriet Huggins of Moms Demand Action in opposing the measure as well.
“To do what we have to do every day, we rely on partners whether it’s the county next to you or the municipality and the feds,” said Hillman. “We are members of joint task forces. The bad guys have guns and a lot of the things they are doing are violating federal law. If our guys are participating on that task force with them, how do they draw a line and say, ‘I can enforce A, B, and C but I cannot enforce D, E, and F, and that if they do enforce, they are liable for it. It’s crazy. It doesn’t make any sense.”
Huggins said passage would send a message of support to criminals, “It can create confusion and a real public safety risk.”
In response to Moms Demand Action and law enforcement opposition, the House committee on Public Safety and Homeland Security significantly narrowed the scope of the legislation to addressing just executive orders, ensuring that state and local law enforcement will continue to participate in the enforcement of most federal gun control; past, present and future.
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 Alabama 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.
SB358 will now move to the full House for further consideration. If it passed the House, it will go back to the Senate for concurrence with the House amendment. Or, the Senate can reject the amendments, forcing a conference committee to work out the differences.