PIERRE, S.D. (Feb. 14, 2022) – Today, a South Dakota House committee passed a bill that would ban the state and its political subdivisions from participating in the enforcement of a wide range of federal gun control measures; past, present and future. Passage into law would take an important step toward bringing those measures to an end within the state.

Rep. Aaron Aylward (R) and a large coalition of Republicans introduced the South Dakota “2nd Amendment Preservation Act” as House Bill 1052 (HB1052) on Jan. 11. As passed by the House Judiciary Committee today, the legislation would ban the state and all political subdivisions of the state from enforcing or participating in the enforcement of any of the following federal gun control measures:

(1) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition, not common to other goods and services, and which might reasonably be expected to create a chilling effect on the purchase or ownership of firearms, firearm accessories, or ammunition by law-abiding citizens;
(2) Any registration or tracking of firearms, firearm accessories, or ammunition, which might reasonably be expected to create a chilling effect on the purchase or ownership of firearms, firearm accessories, or ammunition by law-abiding citizens;
(3) Any registration or tracking of the owners of firearms, firearm accessories, or ammunition, which might reasonably be expected to create a chilling effect on the purchase or ownership of firearms, firearm accessories, or ammunition by law abiding citizens;
(4) Any action forbidding the possession, ownership, use, or transfer of firearms, firearm accessories, or ammunition by law-abiding citizens; and
(5) Any action ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

Under the proposal, any such federal gun control measures – past, present or future – would be considered invalid, may not be recognized, and must be specifically rejected by the state of South Dakota. They would also be considered of no effect by the state.

To help put that into practice, HB1052 also expressly bans enforcement of any such federal gun control measures:

No state agency, political subdivision, or any elected or appointed official or employee of this state or of a political subdivision, acting under governmental authority, may enforce or attempt to enforce any federal action described in section 1 of this Act.

Law enforcement agencies that employ agents who knowingly violate the act would be liable for any injury caused to a person due to the violation and subject to a civil penalty for each employee who knowingly violates the act.

Testifying in support of the bill, Iain Graeme of Gun Owners of America noted, “Liberty cannot exist unless we agree to respect and defend each other’s rights.” He continued, “If we wish to have a rebirth of liberty within this nation, we must zealously strive to reproduce a comparable communal effort [to that of the Old Revolutionaries] in our own time.  And that effort begins with the sovereign states adhering to their mandate to defend the liberties of their citizens from unconstitutional federal overreach.”

Today, the House Judiciary Committee passed HB1052 by a vote of 8-4.

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. 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. 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.

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.”

NEXT UP

HB1052 will now be available for debate and vote in the full House. Should it pass, it will move to the Senate for further consideration.

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