SALT LAKE CITY, Utah (Jan. 19, 2023) – A bill introduced in the Utah House would take on federal gun control and end state and local enforcement of many federal acts that infringe on the right to keep and bear arms within the state. But the bill includes a loophole that could severely limit its effectiveness in practice.
Rep. Karianne Lisonbee (R) introduced House Bill 219 (HB219) on Jan. 17. Titled the Federal Firearm Enforcement Limitation Act, the legislation would prohibit a law enforcement officer, state employee, or employee of a political subdivision from implementing, enforcing, assisting, or cooperating in the enforcement of a “federal regulation” on firearms, firearm accessories, or ammunition.
HB219 defines a “federal regulation” as “a federal law, statute, executive order, rule, or regulation that infringes upon, prohibits, restricts, or requires individual licensure for, or registration of, the purchase, ownership, possession, transfer, or use of a firearm, ammunition” that are not incorporated into Utah law.
The bill would also ban the state or local governments from expending public funds or allocating public resources for the enforcement of a “federal regulation” on firearms, firearm accessories, or ammunition.
HB219 is similar to a law passed in Arizona during the 2021 legislative session.
However, despite the restrictions in the bill, HB219 includes an exception that would still allow state and local enforcement of federal gun control.
“This section does not prohibit or otherwise limit a law enforcement officer, state employee, or employee of a political subdivision from cooperating, communicating, or collaborating with a federal agency if the primary purpose of the cooperation is not the investigation or enforcement of a federal regulation on firearms, ammunition, or firearm accessories.”
State and local enforcement support for federal gun control is often in conjunction with some other operation with the feds — usually prosecution of the unconstitutional war on drugs. This exception creates a potentially massive loophole that would allow state and local law enforcement to continue enforcing federal regulations that don’t exist in state law. They would merely have to assert that the enforcement wasn’t “primarily” related to federal gun control – an extremely subjective standard.
While passage into law wouldn’t end all gun control in Utah on day one, it would represent a massive shift in strategy going forward. Once in effect, the bill would immediately do the following:
- Ban state and local enforcement of any federal gun control measures on the books that don’t have concurrent measures in law in the state of Utah.
- Ban state and local enforcement of any new gun control measures that might come from Washington D.C. in the future that aren’t on the books in Utah.
- Shift the focus and attention to any remaining gun control measures on the books in state law
- Encourage gun rights activists to work in future legislative sessions to repeal those state-level gun control measures as a follow-up.
Each state-level gun control repeal would then represent a one-two punch, not only ending state enforcement, but would also automatically ending support for any concurrent federal gun control measure as soon as the state law repeal went into effect.
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 Utah 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.
HB219 was referred to the House Rules Committee where it must get a hearing and be referred to a standing committee before moving forward in the legislative process.