MADISON, Wisc. (June 21, 2021) – Last week, a Wisconsin Senate committee passed a bill that would prohibit local enforcement of some future federal gun control. Passage into law would represent a first step toward stopping federal acts that infringe on the right to keep and bear arms within the state.
A large coalition of Republicans introduced Senate Bill 314 (SB314) on April 21. The legislation would prohibit any person from enforcing a federal act, law, statute, rule, regulation, treaty, or order that takes effect on or after January 1, 2021, if it bans or restricts semi-automatic firearms, assault weapons, or magazines; requires registration of firearms, magazines, or other firearm accessories; regulates the capacity of magazines; regulates the quantity of ammunition or bullets an individual may possess; prohibits types of ammunition or bullets; or requires the confiscation of a firearm if the federal act isn’t identical to existing state law.
The proposed law would also bar any state agency or other body in state government and any local governmental unit from expending money or using other resources to confiscate a firearm, firearm accessory, or ammunition that is lawfully possessed under the laws of Wisconsin.
Anyone who violates the law would be subject to Class A misdemeanor charges.
Additionally, SB314 includes provisions to exempt a firearm, accessory, or ammunition that is owned or manufactured within the state and that does not leave the state from federal regulations under the commerce clause of the U.S. Constitution. It also includes potential misdemeanor charges for federal agents, although these two sections of the bill are unlikely to have an immediate impact without the approval of a federal court.
On June 17, the Senate Committee on Labor and Regulatory Reform passed AB293 with no amendments by a 3-2 vote. A companion bill, AB293, recently the House by a 61-36 vote. (report here)
The provisions relating to firearms manufactured within the state would likely have little practical effect, but the ban on state and local enforcement of future federal acts that don’t conform to state law would make them nearly impossible to enforce in Wisconsin.
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,” Tenth Amendment Center executive director Michael Boldin said. “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 can legally punish state officers for violating the law, but prosecuting federal agents would be problematic.
Under federal statutes, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to a federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.
Nevertheless, the threat of arrest would create problems for federal agents trying to enforce unconstitutional gun laws in Wisconsin and would certainly gum up the works even if they were never prosecuted. The question is whether or not local law enforcement will be willing to enforce the law on federal officials.
The state of Wisconsin 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.
SB314 will move to the full Senate for further consideration.