PHOENIX, Ariz. (April 7, 2021) – Yesterday, Arizona Gov. Doug Ducey signed a bill that bans state and local enforcement of federal gun control; past, present and future. The enactment of this law represents an important first step toward bringing those measures to an end within the state.
Rep. Leo Biasiucci (R) introduced House Bill 2111 (HB2111) along with 16 cosponsors on Jan. 24. The new law bans the state and all political subdivisions of the state from “using any personnel or financial resources to enforce, administer or cooperate with any act, law, treaty, order, rule or regulation of the United States government that is inconsistent with any law” of the state of Arizona regarding the regulation of firearms.
The legislature passed and the governor signed HB2111 despite intense law enforcement lobby opposition. Maricopa County Sheriff Paul Penzone claimed the law will put police officers in an awkward position of determining the constitutionality of a law.
“Now you’re putting officers or deputies in this position where they’re questioning whether or not some other entity will determine if it’s in conflict with the Second Amendment, therefore do we act on it? And that’s where it creates problems.”
He clearly doesn’t understand the bill. The application is quite simple. If it’s a state law, enforce it. If not, stand down.
While passage into law doesn’t end all gun control in Arizona today, it represents a massive shift in strategy going forward. Once in effect, HB2111 will immediately do the following:
- Ban state and local enforcement of any federal gun control measures on the books that don’t have concurrent measures in law in the state of Arizona.
- Ban state and local enforcement of any new gun control measures that might come from Washington D.C. in the future that aren’t on the books in Arizona
- Shift the focus and attention to any remaining gun control measures on the books in state law
- Encourage gun rights activists to work in future legislative sessions to repeal those state-level gun control measures as a follow-up.
Each state-level gun control repeal would then represent a one-two punch, not only ending state enforcement, but automatically ending support for any concurrent federal gun control measure as soon as the state law repeal went into effect.
According to NRA-ILA, under Arizona law, there is no licensing requirement for ownership of rifles, shotguns, or handguns. And no permit to carry or registration of firearms is on the books either.
On the other end of the spectrum, however, state law in ARS 13-3101(B) requires compliance with the National Firearms Act, but the state maintains no registry and imposes no additional requirements.
The ATF has a pdf document that lists and details all state-level gun control measures in Arizona and would act as a handy guide for what could be repealed in the future.
The right to keep and bear arms in the state constitution is listed in Article 2, Section 26.
“The right of the individual citizen to bear arms in defense of himself or the State shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain, or employ an armed body of men.”
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 Arizona 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. (1997) serves as the cornerstone. For the majority, Justice Scalia wrote, in part:
“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 policymaking 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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