CONCORD, N.H. (June 6, 2021) – Last Thursday, the New Hampshire House passed a bill that would ban state and local enforcement of most federal gun control; past, present and future. Enactment into law would represent an important first step toward bringing those measures to an end within the state.
A coalition of nine Republicans introduced Senate Bill 154 (SB154) on Feb. 4. As passed by the House last week, the legislation would prohibit any political subdivision of the state, and any person acting under the color of state, county, or municipal law, from using any personnel or financial resources to enforce, administer, or cooperate with any law, act, rule, order, or regulation of the United States Government or presidential executive order that is inconsistent with any state law regarding the regulation of firearms, ammunition, magazines or the ammunition feeding devices, firearm components, firearms supplies, or knives.
The proposed law further 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 purposes of this chapter.”
On June 3, the House passed this significantly expanded version of SB154 by a 199-177 vote.
The version passed by the Senate in April was much narrower in scope. It only banned state enforcement of future executive orders relating to firearms.
While passage into law wouldn’t end all gun control in New Hampshire today, it would represent a massive shift in strategy going forward. Once in effect, SB1541 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
New Hampshire has some of the least stringet state firearms laws in the U.S. 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. In fact, the state doesn’t even ban machine guns. According to the NRA, “In the absence of any state law governing automatic weapons, federal law controls the registration and regulation of machine guns in New Hampshire.”
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 Arizona 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.
SB154 will now go back to the Senate for concurrence with the House amendments. If they don’t accept the House version, it will likely go to a conference committee to hammer out the differences.
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