PIERRE, S.D. (Feb. 25, 2022) – On Tuesday, 32 Republicans joined Democrats in the South Dakota House to kill a bill that would have banned the state and its political subdivisions from participating in the enforcement of a wide range of federal gun control measures; past, present and future.

Rep. Aaron Aylward (R) and a 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, the legislation would have banned 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 proposed law, any such federal gun control measures – past, present or future – would have been considered invalid, could not be recognized, and would have been 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 banned 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 have been 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.

On Feb. 22, the Republican-dominated House voted down HB1052 by a 39-28 vote. Thirty-two Republicans joined the seven Democrat members of the House in opposition to the bill.

This prompted Tenth Amendment Center director Micheal Boldin to declare South Dakota a “fake free state.”

EFFECTIVE

Passage of bills such as HB1052 is an effective way to stop federal gun control in its tracks.

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.

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.

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