AUSTIN, Texas (April 5, 2021) – Last week, a Texas House committee held a hearing on a bill that would take on future federal gun control. Passage into law would represent the first step toward ending enforcement of some federal acts that infringe on the right to keep and bear arms within the state.
A coalition of five Republicans introduced House Bill 2622 (HB2622) on March 17. The proposed law would prohibit any Texas governmental agency, including state and local police departments, from contracting with or in any other manner providing assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation or a registration requirement, that does not exist under the laws of the state of Texas.
The House State Affairs Committee held a hearing on HB2622 on April 1, an important first step in the legislative process.
HB2622 is similar to a more sweeping bill also introduced in the House that would apply the same restrictions to all gun control, past, present and future. At the time of this report, it had not been scheduled for a hearing in the State Affairs Committee.
Under HB2622, a local agency that violates the law and supports enforcement of future federal gun control would lose state grant money the following year. The legislation would also create a process for Texans to challenge state or local actions that appear to violate the proposed law.
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 Texas 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.
The House State Affairs Committee needs to take HB2622 up for a vote and pass it by a majority before it can move forward in the legislative process.
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