HARRISBURG, Pa. (July 15, 2021) – A bill introduced in the Pennsylvania House would end state and local enforcement of a wide range of federal gun control measures; past, present and future.
A large coalition of Republicans introduced House Bill 1696 (HB1696) on June 24. Under the proposed law, officers and employees of the Commonwealth of Pennsylvania would be prohibited from enforcing or attempting to enforce any infringements on the right to keep and bear arms enumerated in the bill. The legislation also includes misdemeanor charges punishable by a fine of up to $10,000 and five years in prison for any U.S. government agent who enforces or attempts to enforce any of the defined infringements.
The bill includes a detailed definition of actions that qualify as “infringement,” including but not limited to:
- The National Firearms Acts of 1934 and 1968.
- taxes and fees on firearms, firearm accessories, or ammunition not common to all other goods and services that would have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
- registration and tracking schemes applied to firearms, firearm accessories, or ammunition;
- any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens;
- any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.
HB1696 creates a cause of action in state court for any individual subjected to an effort to enforce any of the infringements on the right to keep and bear arms covered by the law.
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 can legally punish state officers for violating the law, but prosecuting federal agents would be problematic, at best.
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 Commonwealth of Pennsylvania 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.
HB1696 was referred to the House Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process. It’s likely the bill will only have a chance to pass out of this committee if the sponsors are willing to remove provisions of the bill with criminal sanctions for federal agents.
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