JACKSON, Miss. (Jan. 31, 2022) – Last week, a Mississippi House committee passed a bill that would ban state enforcement of some federal gun control. Passage into law would take an important first step toward bringing those measures to an end within the state.
Rep. Karl Oliver (R) introduced House Bill 1418 (HB1418) on Jan. 17 along with 19 fellow Republicans. Titled the Second Amendment Preservation Act, the legislation declares the following.
“All federal acts, laws, orders, rules and regulations, whether past, present or future, which infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Article I, Section 12 of the Mississippi Constitution of 1890 shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state and have no effect in this state.”
The legislation specifically defines “the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens” as infringements.
The law would prohibit any public officer or employee of the state from enforcing or attempting to enforce any of the specifically defined infringements on the right to keep and bear arms.
HB1418 also includes misdemeanor penalties for any federal agent who enforces or attempts to enforce any of the specifically defined infringements on the right to keep and bear arms.
People in Mississippi would have a private cause of action in state court for declaratory judgment and for damages against any person or entity attempting such enforcement.
On Jan. 27, the House Judiciary B Committee passed HB1418.
If passed, HB1481 would immediately ban state enforcement of any federal act involving the confiscation of firearms, firearm accessories, or ammunition.
While the clause declaring that all federal acts that “infringe on the people’s right to keep and bear arms” are unenforceable in the state sounds like a sweeping prohibition on enforcement of federal gun control – given all federal gun control is unconstitutional – in practice, any federal action that didn’t involve confiscation would require a state court ruling declaring a specifical federal act an “infringement” before enforcement would end.
The provision imposing criminal penalties on federal agents is problematic and should be amended out of the bill on the House floor.
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 Missisippi 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. This seems unlikely.
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.
Legal expert 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 Mississippi 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.
HB1418 will move to the full House for further consideration.
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