FRANKFORT, Ky. (March 11, 2022) – Yesterday, the Kentucky House passed a bill that would ban the enforcement of some future federal gun control measures. This would take the first step toward bringing such federal acts to an end within the state.
Rep. Josh Bray (R-Mt. Vernon) and Rep. Russell Webber (R-Shepherdsville) introduced House Bill 29 (HB29) on Jan. 14 The legislation would prohibit police officers, state employees, and employees of any political subdivision of the state from enforcing, assisting in the enforcement of, or otherwise cooperating in the enforcement of any new “federal ban” on firearms, ammunition, or firearm accessories. It would also prohibit the expenditure or allocation of public funds or resources for such enforcement.
HB29 defines “federal ban” as “a federal law, executive order, rule, or regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, or a new and more restrictive interpretation of a law that existed on January 21, 2021, that infringes upon, calls into question, prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, ammunition, or firearm accessory.”
The legislation is similar to a law enacted in Montana last year.
On March 10, the House passed HB29 by a 75-20 vote.
A floor amendment introduced by Rep. Samantha Maddox (R) added criminal penalties that would apply to any state or local official who violates the law. State or local officials who enforce federal gun control in violation of the law would also be subject to termination.
This directly confronts upcoming infringements on the right to keep and bear arms including 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 state and local enforcement of any other future gun control schemes implemented by the federal government.
According to an op-ed by attorney John Werden, upwards of 40 million Americans own pistol braces. There is no grandfather clause under the order. In other words, when the EO goes into effect, all of those people will become felons if they don’t go through with the registration process.
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,” 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.”
The Commonwealth of Kentucky 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.
HB29 will now move to the Senate for further consideration. It will be referred to a Senate committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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