CHEYENNE, Wyo. (Feb. 16, 2022) – Bills filed in the Wyoming legislature would widely ban state enforcement of federal gun control;  past, present and future. Passage into law would represent a major step toward ending federal acts that infringe on the right to keep and bear arms within the state.

A second measure introduced in the Senate purporting to protect the Second Amendment has a giant loophole and would have virtually no impact on federal gun control, other than to keep full enforcement in place in most situations.

A coalition of 11 Republicans and a Libertarian introduced Senate Bill 87 (SF87) on Feb. 14. A companion bill (HF133) was introduced in the House. The legislation would ban any person, including any public officer or employee of the state and its political subdivisions, from enforcing any past, present or future federal “acts, laws, executive orders, administrative orders, court orders, rules, regulations, statutes or ordinances” that infringe on the right to keep and bear arms.

The bill includes a detailed definition of actions that qualify as “infringement,” including but not limited to:

  • taxes and fees on firearms, firearm accessories, or ammunition not common to all other goods and services that would have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
  • registration and tracking schemes applied to firearms, firearm accessories, or ammunition that would have a chilling effect;
  • any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens;
  • any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.

This directly confronts infringements on the right to keep and bear arms including the National Firearms Act of 1934, the Gun Control Act of 1968, Pres. Trump’s bump-stock ban, proposed federal “red-flag laws,” and two executive orders issued by Joe Biden to criminalize “pistol braces” and to require registration of popular “80 percent lowers”  — homemade firearms. It would also bar enforcement of any future gun control schemes implemented by the federal government.

The legislation includes a provision that would allow anybody who violates the law and knowingly deprives somebody of their right to keep and bear arms as defined by the law to be sued for damages in civil court.

SF87/HF133 is similar to a law passed in Missouri last year.

The bill does include some exceptions likely intended to appease intense law enforcement opposition to limiting their ability to enforce federal gun control.

The Republican-dominated Wyoming Senate gutted a similar bill during the 2021 legislative session. Wyoming law enforcement lobbyists opposed the bill and put significant pressure on legislators to amend it or vote it down. Wyoming Association of Sheriffs and Chiefs of Police lobbyist Byron Oedekoven testified against the bill in committee and every Wyoming sheriff signed a letter in opposition.  Republicans hid behind Oedekoven testimony and  the sheriffs’ opposition to claim voting to protect the Second Amendment would be “anti-cop.”

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,” 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.”

SECOND BILL WOULD PRESERVE NOTHING

Fifteen Republicans introduced Senate Bill 102 (SF102) on Feb. 15. Titled the Second Amendment Protection Act, this bill wouldn’t protect anything in practice.

Aaron Dorr of Wyoming Gun Owners said this bill was intentionally introduced by “RINOS” in the state legislature to divert attention from SF87/HF133.

“These people think that gun owners are idiots,” he said. “They believe that we’re not going to know what they’re doing, that we can’t read one bill from the next, and that we’re going to sit here and fall for this garbage. And their hope is they can use this trash as cover in the elections.”

The proposed law would prohibit the state or any political subdivision of the state from using personnel or funds appropriated by the legislature of the state of Wyoming or any other source of funds that originated within the state to enforce, administer or cooperate with any act, law, treaty, judicial or executive order, rule or regulation of the United States government that infringes on or impedes the free exercise of individual rights guaranteed under the Second Amendment to the Constitution.

There are two problems with this language.

  1. It doesn’t define any specific acts that infringe on or impede the exercise of individual rights. This would leave it to the discretion of state agents to determine whether or not to enforce a given federal act. In practice, state agents will almost never make that call and will defer to the courts to rule something unconstitutional before ending enforcement. Without specifically defining what types of federal actions the state can’t enforce, state agents will continue to enforce all of them.
  2. The language only prohibits the use of state appropriations to enforce federal gun control. This leaves the door open for the state of Wyoming to use federal funds to enforce federal gun control. With billions of dollars flowing into state and local law enforcement agencies from federal sources, this would almost certainly ensure Wyoming police would continue to assist the feds in enforcement even with the passage of this bill. In fact, the language was written to specifically allow state and local law enforcement to work on federal task forces to enforce federal gun control.

Dorr called this bill “a complete con job.”

The bill also lacks any provision for people to take agents to civil court for violations of the law. It would require a state prosecutor to enforce the law.

LEGAL BASIS

The state of Wyoming 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.

WHAT’S NEXT

At the time of this report, the bills had not been referred to a committee. Once they receive a committee assignment, the bills must receive a hearing and pass by a majority vote before moving forward in the legislative process.

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