LITTLE ROCK, Ark. (July 29, 2021) – Yesterday, a law banning state officials from enforcing future federal firearms laws on guns manufactured and kept within the state of Arkansas. How the law plays out in practice will largely depend on human action.
Sen. Bob Ballinger (R) introduced Senate Bill 59 (SB59) back in January. Unlike more common Second Amendment Protection Acts, this law rests primarily on the commerce clause. Titled the “Intrastate Firearms Protection Act, SB 59 declares firearms manufactured in Arkansas are not subject to some federal laws and regulations.
“A personal firearm, a firearms accessory, or ammunition that is manufactured commercially or privately in Arkansas and that remains within the borders of Arkansas is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce, as those items have not traveled in interstate commerce.”
The law also bans state and federal agents from enforcing future gun laws “relating to a personal firearm, firearm accessory, or ammunition that is owned or manufactured commercially or privately in Arkansas so long as the personal firearm, firearm accessory, or ammunition is within the borders of Arkansas.”
By including “owned OR manufactured” in Arkansas in the language, the law technically bars the enforcement of any future federal gun control within the borders of the state since all firearms owned within Arkansas fall under the law.
Any person, including a federal agent, who violates the law is subject to Class A Misdemeanor charges.
SB59 will work together with a second bill signed by Hutchinson that could prohibit enforcement of some future federal gun control,
The state can legally punish state officers for violating the law, but prosecuting federal agents will 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 Arkansas 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.
More broadly speaking, the impact this new law will have in practice will largely depend on how Arkansas residents and law enforcement officers treat the law. If large numbers of Arkansans take advantage of the law and manufacture firearms within the borders of the state for sale within the state, the federal government would have a hard time enforcing future laws on Arkansas gun owners.
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.”
But if only a handful of Arkansas take action under the law and the state refuses to stand behind its own law, it could prove disastrous. This was the case in Kansas.
SB59 is similar to a law passed in Kansas in 2013. Two men took action under that state law and paid a high price. Shane Cox manufactured and sold a silencer without paying applicable federal licensing fees and taxes thinking he was protected by the state law. Jeremy Kettler bought and used the silencer. The feds came down hard on them and the state refused to act.
When Cox and Kettler were arrested by federal agents, Attorney Derek General Schmidt refused to take action against the federal agents and refused to intervene in the federal court case despite the urging of Kansas Secretary of State Kris Kobach and many others. Cox and Kettler were found guilty in a jury trial on Nov. 14, 2016.
Ultimately, if things play out like they did in Kansas where only one or two people take action…and law enforcement helps the feds…it’ll be problematic.
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