CONCORD, N.H. (June 27, 2022) – Last Friday, New Hampshire Gov. Chris Sununu signed a bill into law that purports to ban state and local enforcement of federal gun control, but with a loophole that, at best, significantly narrows its scope.
A coalition of Republicans introduced House Bill 1178 (HB1178) on Jan. 5. The new law bans the state and its political subdivisions, or any person acting under the color of state, county, or municipal law from using any personnel or financial resources to enforce, administer, or cooperate with any law, act, rule, order, or regulation of the United States Government or Executive Order of the President of the United States that is inconsistent with any New Hampshire law regarding the regulation of firearms, ammunition, magazines or the ammunition feeding devices, firearm components, firearms supplies, or knives.
The legislation further stipulates that “silence in the New Hampshire Revised Statutes Annotated pertaining to a matter regulated by federal law shall be construed as an inconsistency for the purposes of this chapter.”
This language would have created a strong prohibition against state or local enforcement of federal gun control. But an amendment created a loophole that will, in its best reading, significantly narrow the practical effect of the law.
“In light of the long-standing practice of cooperation between federal, state, and local law enforcement agencies, nothing in this chapter shall prevent a state, county, or local official from cooperating with or rendering aid or assistance to federal officials in any circumstance where there is reasonable suspicion to believe that a person who is the subject of an investigation for violation of federal firearms law covered by [this law] also has committed, is committing, or is about to commit a violation of New Hampshire law or a violation of a federal law, regulation, order, or practice not covered by [this law.]”
As amended and passed into law, HB1178 only bans state and local enforcement of federal gun control when the enforcement actions are related to federal gun control alone. But in practice, that almost never happens.
State and local enforcement support is almost always part of some other operation in conjunction with the feds — usually prosecution of the unconstitutional war on drugs. The amendment will allow this to continue unabated. In effect, the amendment says if local police are working with the fed to enforce anything else along with federal gun control, they can do it as they have been all along.
This new law could stop a narrow range of state and local enforcement of federal gun control, representing a small first step for the state. But with the amendment, it will mostly maintain the status quo.
Absent loopholes, a ban on state and local federal gun control is an effective way to stop it 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.
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 New Hampshire 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. (1997) serves as the cornerstone. For the majority, Justice Scalia wrote, in part:
“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 policymaking 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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