ANNAPOLIS, Md. (March 10, 2022) – On Wednesday, a Maryland House committee held a hearing on a bill that would take on some federal gun control enforcement in the state, and take a step toward ending federal acts that infringe on the right to keep and bear arms.
Del. Dan Cox introduced House Bill 859 (HB859) on Feb. 7. The legislation declares that any “federal action relating to a firearm, firearm magazine, firearm accessory, or firearm ammunition that is intended to restrict the possession, transfer, or use of a firearm, firearm magazine, firearm accessory, or firearm ammunition is unenforceable by a state actor in the state.”
The bill also declares any federal action taken on or after Dec. 31, 2020, including the attempt to register or create a gun registry, “unenforcible in the state.”
The legislation includes a specific definition of “federal action,” but the enforcement language is vague. It declares a federal action “unenforcible” but doesn’t specifically prohibit state actors from enforcing such federal actions. This may be splitting hairs, but a direct prohibition of state enforcement would strengthen the bill. For instance, a state actor “is prohibited from enforcing…”
The state attorney general is required under the bill to defend a state resident prosecuted by the feds for violating federal gun control laws specified. This would probably not afford much protection to a state resident in practice.
The proposed law creates a cause of action for an individual to sue a state or federal officer who either enforces or aids in the enforcement of those regulations. Lawsuits against state actors could serve as a powerful deterrent, but suing federal officers acting within the scope of their duties probably wouldn’t succeed.
On March 9, the House Judiciary held a hearing on HB859, an important first step in the legislative 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.
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.”
The state of Maryland 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.
HB859 was referred to the House Judiciary Committee where it received a public hearing on Feb. 14. It will require a majority vote by the committee to advance.