AUSTIN, Texas (April 28, 2021) – Yesterday, the Texas Senate passed a bill that originally would have banned state and local enforcement of any new federal gun control, but amended it to essentially support all new gun control measures coming from the Biden administration.
Sen. Bob Hall (R-Edgewood) introduced Senate Bill 513 (SB513) on Jan 28. This month, it garnered 6 additional cosponsors and the support of Gov. Greg Abbott.
As introduced, 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.
On March 9, the Senate State Affairs Committee passed the bill, unamended, in the face of lobbying opposition by the Combined Law Enforcement Associations of Texas (CLEAT).
In a strange move, yesterday, Hall offered an amendment to his own bill which neutered the entire intent and purpose of it. That is, to stop the state from participating in the enforcement of any new federal gun control.
Amend SB 513 (senate committee printing) in SECTION 2 of the bill, in added Section 40.03, Penal Code (page 2, between lines 62 and 63), by inserting the following:
(i) It is an exception to the application of Subsection (h) that the person is a local or state law enforcement officer who, as a member of a federal task force or of a joint task force consisting of local or state law enforcement officers and federal law enforcement officers, enforces or attempts to enforce a federal statute, order, rule, or regulation described by Subsection (b).
Subsection (h) reads as follows:
(h) A person commits an offense if, in the person’s official capacity as an officer of an entity described by Subsection (a), or as a person employed by or otherwise under the direction or control of the entity, or under color of law, the person knowingly enforces or attempts to enforce any federal statute, order, rule, or regulation described by Subsection (b). An offense under this subsection is a Class A misdemeanor.
In practice, SB513 claims to ban enforcement of new federal gun control and provide a recourse for the people of Texas for those who don’t follow the prohibition. But the amendment removes the penalty for enforcement actions done in conjunction with the federal government.
Local police rarely, if ever, initiates and enforces federal gun control measures on their own. In almost every situation, they’re responding to a request from a federal agency to help, and in most situations they do so as part of a federal/state joint law enforcement task force, of which there are literally hundreds throughout the country.
The amendment passed without opposition on the Senate floor. And now, instead of the bill being a ban on participating in federal gun control enforcement, it would codify in Texas law that state and local law enforcement can enforce any federal gun control measure that might be coming from the Biden Administration, as long as the federal government asks for help.
Sources close to the Tenth Amendment Center say that Hall neutered his own bill at the behest of the law enforcement lobby group, CLEET.
On 3rd read, SB513 was passed by a party-line vote of 18-13.
— TenthAmendmentCenter (@TenthAmendment) April 28, 2021
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. 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.
Next, the bill will go to the House for further consideration, where a similar bill (HB2622) – but yet unamended – awaits a debate and vote on the House floor.