LITTLE ROCK, Ark. (April 29, 2021) – After a flurry of activity this week, the Arkansas legislature sent a bill to the governor that could prohibit enforcement of some future federal gun control, but some convoluted language in the bill makes it uncertain if it will actually play out that way in practice.
Last week, Gov. Asa Hutchinson vetoed a bill that would have banned the state from participating in the enforcement of a wide range of federal gun control acts dating back to 1934. Hutchinson bowed to intense law enforcement opposition to Senate Bill 298.
They argue that banning participation in federal gun control enforcement threatens “public safety.” Generally, they mean it makes it harder to cooperate with federal task forces and the unconstitutional federal war on drugs. In his veto letter, Hutchinson called the partnership between state and federal law enforcement “crucial.” You can get more details on the legislation Hutchinson vetoed HERE.
The Senate overrode Hutchinson’s veto by a 21-12 vote. But the House passed a motion by a voice vote to postpone the override, in effect allowing the veto to stand. The House then considered several alternative bills. Sources close to the Tenth Amendment Center said there were just 25 representatives out of 100 who wanted to vote on the veto override.
Ultimately, the House settled on House Bill 1957 (HB1957) sponsored by Rep. Jeff Wardlaw and Sen. Missy Irvin (R). The intent of the legislation is to ban state enforcement of some future federal gun control. HB1957 would prohibit public officers and employees of the state and its political subdivisions from “enforcing or assisting federal agencies or officers in the enforcement of any federal statute, executive order, or federal agency directive that conflicts with Arkansas Constitution, Article 2, § 5, or any Arkansas law.”
The bill also declares a “federal ban” null and void in the state of Arkansas. A federal ban is broadly defined as “a federal law, executive order, rule, or regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, that infringes upon, calls into question, or prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, any magazine or other ammunition feeding device, or other firearm accessory.”
The bill also includes a list of federal actions that would qualify as “a federal ban.”
- taxes and fees on firearms, firearm accessories, or ammunition not common to all other goods and services that would have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
- registration and tracking schemes applied to firearms, firearm accessories, or ammunition;
- any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens;
- any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.
However, much of the language of the bill is extremely convoluted and could leave a loophole for law enforcement officers to continue enforcing federal gun control. It specifically bars state and local agents from enforcing acts that “conflict with Arkansas Constitution, Article 2, § 5, or any Arkansas law.”
Law enforcement lobby groups are likely to promote the view that “it’s not the job of a law enforcement officer to determine what’s constitutional or not.” And in practice, that means law enforcement agents could plausibly continue helping in the enforcement of all federal gun control in Arkansas until a court tells them to do otherwise.
It appears that the bill intends to link the definition of a “federal ban” with acts state and local agents would be prohibited from enforcing. But the term “federal ban” does not appear in the clause prohibiting enforcement. The most generous reading of the bill would prohibit state and local officials from enforcing any federal action included in the definition of a federal ban. But the tangled language makes it difficult to determine how the law would be interpreted in practice.
A leading grassroots activist in Arkansas called the bill “smoke and mirrors.”
If the bill results in non-enforcement of some federal action, it would be an effective way to stop some future federal gun control in Arkansas. 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 Arkansas 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.
Gov. Hutchinson will have 20 days (excluding Sundays) from the date HB1957 is transmitted to his office to sign or veto the bill. If he takes no action, it will become law without his signature.