AUSTIN, Texas (Apr. 14, 2021) – Last week, a Texas Senate committee passed a bill that would take on all 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. 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.
Sen. Bob Hall (R-Edgewood) filed Senate Bill 513 (SB513) on Jan. 28. Titled the “Texas Firearm Protection Act,” the proposed law would prohibit any Texas governmental agency, including state and local police departments, from adopting any rule, order, ordinance, or policy under which they enforce, or by consistent action allow the enforcement of, any federal act that purports to regulate a firearm, a firearm accessory, or firearm ammunition passed after Jan. 1, 2021, if the federal act “imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation, a registration requirement, or a background check, that does not exist under the laws of this state.”
Any agency violating the law would lose state grant money the following year. An employee of a state agency knowingly violating the law would be subject to Class A misdemeanor charges.
The proposed law also creates a process whereby Texans could initiate lawsuits against agencies enforcing future federal gun control laws through the state attorney general’s office.
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. 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.
SB513 will move to the full Senate for further consideration.