CONCORD, N.H. (May 3, 2021) – Last week, a New Hampshire House committee passed a bill that would ban state and local enforcement of federal gun control, setting the foundation to end such unconstitutional acts in practice and effect.
A coalition of nine Republicans introduced Senate Bill 154 (SB154) on Feb. 4. On April 1, the Senate passed that version of the bill by a 14-10 vote. On April 28, the House Criminal Justice and Public Safety Committee expanded the scope of the bill and passed it by an 11-10 vote according to sources in New Hampshire.
As passed by the House committee (based on an unofficial copy of the amendment language), the proposed law would ban state and local agencies and their employees from using personnel or resources to enforce or cooperate in the enforcement of any act, rule, order, or regulation of the U.S. government including presidential executive orders that are “inconsistent with any law of this state regarding the regulation of firearms, ammunition, magazines or ammunition feeding devices, firearm components, firearms supplies, or knives.” The proposed law stipulates that “silence in the New Hampshire Revised Statutes Annotated pertaining to a matter regulated by federal law shall be construed as an inconsistency for the purpose of this statute.”
As passed by the Senate last month, the legislation would prohibit any person acting under color of state law or as an agent of the state from taking any action, expending any funds, or exercising any powers of the state of New Hampshire “to enforce any executive order of the president of the United States, issued after January 20, 2021, that has the purpose or effect of restricting, limiting, encumbering, regulating, or placing conditions upon the right of the people to keep and bear arms.”
While passage into law doesn’t end all gun control in New Hampshire today, it represents a massive shift in strategy going forward. Once in effect, SB154 would 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 New Hampshire.
- 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 New Hampshire
- 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.
NEW HAMPSHIRE LAWS
According to NRA-ILA, under New Hampshire 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.
The ATF has a pdf document that lists and details all state-level gun control measures in New Hampshire 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 Part 1, Article 2-a
“All persons have the right to keep and bear arms in defense of themselves, their families, their property, and the state.”
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 New Hampshire 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.
SB154 will no go to the full House for consideration. If it passes the House, it will have to go back to the Senate for concurrence with the broader House version.
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