PIERRE, S.D. (Jan. 28. 2022) – A bill introduced in the South Dakota House would take on federal gun control; past, present and future. Passage into law would take an important first step toward bringing those measures to an end within the state.

Rep. Aaron Aylward (R) and a large coalition of Republicans introduced House Bill 1052 (HB1052) on Jan. 11. The legislation would ban the state and all political subdivisions of the state from “contracting with or in any manner providing assistance to” a federal agency in enforcing a federal statute, regulation, or executive order that imposes a prohibition, restriction, or requirement on the possession, ownership or transfer of a firearm that does not exist under state law.

The bill includes criminal penalties for state agents who violate the law.

HB1052 does have an exception that could create a loophole and allow state and local police to enforce federal gun control.

“This Act does not apply to any contract requiring the provision of assistance in the 22 enforcement of a federal statute, regulation, or executive order, if the contract was 23 entered into before July 1, 2022.”

In other states, we’ve seen this kind of language used as a technique to authorize never-ending state and local law enforcement support for federal gun control. Since most state and local agencies already have agreements to participate in various joint task forces, it could then turn a prohibition into a potential green light for enforcement of gun control otherwise prohibited by the law.

HB1052 was scheduled for a committee hearing on Jan. 26. The bill was deferred until Feb. 14 to discuss possible amendments.

STRATEGY

While passage into law would not end all gun control in South Dakota immediately, it would represent a massive shift in strategy going forward.  Once in effect, HB1052 would immediately do the following:

  1. Ban state and local enforcement of any federal gun control measures on the books that don’t have concurrent measures in law in the state of South Dakota.
  2. 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 South Dakota.
  3. Shift the focus and attention to any remaining gun control measures on the books in state law
  4. 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.

SOUTH DAKOTA LAWS

According to NRA-ILA, under South Dakota law, there is no licensing requirement for ownership of rifles, shotguns, or handguns.

The ATF has a pdf document that lists and details all state-level gun control measures in South Dakota 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 4, Section 24.

“The right of the citizens to bear arms in defense of themselves and the state shall not be denied.”

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.

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.”

LEGAL BASIS

The state of South Dakota 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

HB1052 was referred to the House Judiciary Committee. A hearing is scheduled for Feb. 14. It must pass the committee by a majority vote before moving forward in the legislative process.

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