LINCOLN, Neb. (Jan. 9, 2022) – A bill introduced in the Nebraska Legislature would take on federal gun control and end state and local enforcement of many federal acts that infringe on the right to keep and bear arms within the state.
Sen. Steve Halloran (R) introduced Legislature Bill 188 (LB188). Titled the “Second Amendment Preservation Act,” the bill would prohibit state agencies and law enforcement officers from willfully enforcing a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition that “does not exist under the laws of this state,” expect to comply with an order of a court.
The proposed law would also bar any Nebraska government entity from utilizing assets, state funds, or funds allocated by the state to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement of the same.
State or local agents guilty of violating the act would be subject to civil penalties of up to $3,000 on the first offense and class I misdemeanor charges on a second offense. Local governments or agencies found guilty of violating the law would lose grant funds in the following fiscal year.
LB188 was introduced during the 2021 session and will carry over to 2022. It received a committee hearing during the last legislative session but was not brought up for a vote.
LB188 is similar to a law passed in Arizona during the 2021 legislative session.
While passage into law wouldn’t end all gun control in Nebraska 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 Nebraska.
- 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 Nebraska.
- 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.
According to NRA-ILA, under Nebraska law, there is no licensing requirement for ownership of rifles, shotguns, but the state does require a permit to purchase a handgun.
The ATF has a pdf document that lists and details all state-level gun control measures in Nebraska 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 I Sec. 1. “The right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof.”
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.”
Nebraska 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.
LB188 was referred to the Government, Military and Veterans Affairs Committee where it must pass by a majority vote before moving forward in the legislative process.
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