COLUMBIA, S.C. (May 21, 2021) – On Wednesday, South Carolina Gov. Henry McMaster signed a bill into law to allow all South Carolina concealed weapon permit holders to open carry firearms. The law also includes provisions to review and prohibit state enforcement of federal laws that limit carrying firearms.
A large bipartisan coalition introduced House Bill 3094 (H3094) in March. Under the new law, all South Carolina concealed weapon permit holders can openly and visibly carry firearms in public, where allowed by law. The bill also waives the $50 fee for open carry permit license and training.
Many Second Amendment activists considered this a sellout and a way to avoid passing constitutional carry. Nevertheless, authorizing open carry takes a small step forward and can serve as a foundation for further action during the next legislative session. It could also have a strong positive psychological effect. When people see South Carolinians open carrying firearms and there are no problems with it, they will be more open to loosening gun restrictions further.
While state bills loosening restrictions on carrying firearms do not directly affect federal gun control, the widespread passage of laws like this subtly undermines federal efforts to regulate guns. As we’ve seen with marijuana and industrial hemp, a federal regulation becomes ineffective when states ignore it and pass laws encouraging the prohibited activity anyway.
The federal government lacks the enforcement power necessary to maintain its ban, and people will willingly take on the small risk of federal sanctions if they know the state will not interfere. This increases when the state actively encourages “the market.”
Less restrictive state gun laws will likely have a similar impact on federal gun laws. It will make it that much more difficult for the feds to enforce any future federal gun control, and increase the likelihood that states with few limits will simply refuse to cooperate with federal enforcement efforts.
State actions such as passing H3094 will lower barriers for those wanting the option of defending themselves with firearms and encourages a “gun-friendly” environment that would make federal efforts to limit firearms that much more difficult.
REVIEWING AND REJECTING FEDERAL ACTS
H3094 includes provisions to review any federal law, treaty, executive order, rule, or regulation “related to an individual’s right to keep and bear arms enshrined in the Second Amendment to the United States Constitution that limits or proscribes carrying concealable weapons.” The AG is required to evaluate any such federal act and issue a written opinion determining if it “purports to compel legislative or executive action.” If the Attorney General renders an opinion that the federal act purports to compel legislative or executive action related to an individual’s right to keep and bear arms enshrined in the Second Amendment to the United States Constitution that limits or proscribes carrying concealable weapons, state agencies and political subdivisions, along with their employees, will be prohibited from using personnel or public funds to enforce the federal action.
THE PROCESS IN PRACTICE
The enactment of H3094 creates a process to potentially push back against overreaching executive authority. Upon the AG’s determination that a federal act compels the state to take any legislative or executive action to implement or enforce a federal action “related to an individual’s right to keep and bear arms enshrined in the Second Amendment to the United States Constitution that limits or proscribes carrying concealable weapons,” the state will be required to withdraw all resources and cease any cooperation with enforcement or implementation of the action. But how the law plays out will rely on the actions of the attorney general. It will be totally at his/her discretion as to whether a federal act warrants a review.
This cumbersome review process isn’t even necessary. The legislature already had the authority to review any federal acts and prohibit their implementation for any reason whatsoever. In fact, the legislature could simply pass a bill prohibiting state enforcement of specific types of federal acts without any lengthy and unwieldy constitutional review. The state has the right to direct its personnel and resources as it sees fit. It can prohibit the enforcement of federal laws or the implementation of federal programs for any reason at all. South Carolina could withdraw state resources from the enforcement of federal acts relating to the carrying of firearms just because it’s Tuesday and there’s snow on the ground.
The provisions prohibiting the state from enforcing or implementing certain federal acts 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 – whether constitutional or not. 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.
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” provides an extremely effective method to render federal laws, effectively unenforceable because most enforcement actions rely on help, support and leadership from the states.
Fox News senior judicial analyst Judge Andrew Napolitano agreed this type of approach would be extremely effective. In a televised discussion on federal gun laws, he noted that a single state refusing to cooperate with enforcement would make federal gun laws “nearly impossible” to enforce.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts. By simply withdrawing this necessary cooperation, states can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
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