FRANKFORT, Ky. (Dec. 15, 2021) – A bill prefiled in the Kentucky House for the 2022 legislative session would ban state and local enforcement of most federal gun control; past, present and future. The enactment of this law represents an important first step toward bringing those measures to an end within the state.
Rep. Samantha Maddox (R-Dry Ridge) filed Bill Request 259 (BR259). The proposed law would prohibit the state and its political subdivisions, along with employees of any state or local government agency from providing assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation that imposes a prohibition, restriction, or other regulation relating to firearms that do not exist under state law.
The legislation includes a specific of federal acts that would be included in the prohibition from state or local enforcement.
- A registry requirement for a firearm, a firearm accessory, or ammunition;
- A requirement that an owner of a firearm, a firearm accessory, or ammunition possess a license as a condition of owning, possessing, or carrying the firearm, firearm accessory, or ammunition;
- A requirement that a background check be conducted for the private sale or transfer of a firearm, a firearm accessory, or ammunition;
- A program for confiscating a firearm, a firearm accessory, or ammunition from a person who is not otherwise prohibited by the laws of this state from possessing the firearm, firearm accessory, or ammunition; or
- A program that requires an owner of a firearm, a firearm accessory or ammunition to sell the firearm, firearm accessory, or ammunition.
A state or local employee who knowingly violates the law would be subject to misdemeanor charges and a political subdivision in violation of the law would forfeit state funding.
BR259 is similar to a law passed in Arizona during the 2021 legislative session.
STRATEGY
While passage into law wouldn’t end all gun control in Kentucky on day one, it would represent a massive shift in strategy going forward. Once in effect, the bill would immediately do the following:
- Ban state and local enforcement of any federal gun control measures on the books that fall within the five specific categories that don’t have concurrent measures in law in the state of Kentucky.
- 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 Kentucky.
- 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.
KENTUCKY LAWS
According to NRA-ILA, under Kentucky 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.
The ATF has a pdf document that lists and details all state-level gun control measures in Kentucky 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 Article 1, Section 1, Paragraph 7
“All men are by nature, free and equal, and have certain inherent and inalienable rights, among which may be reckoned: … 7) the right to bear arms in defense of themselves and of the state, subject to the power of the general assembly to enact laws to prevent persons from carrying concealed weapons.”
EFFECTIVE
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.”
LEGAL BASIS
The commonwealth of Kentucky 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.
WHAT’S NEXT
BR259 will be officially introduced when the legislature convenes on Jan. 4. At that time, it will receive a committee assignment. It will need to receive a hearing and pass by a majority vote before moving forward in the legislative process.
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