ATLANTA, Ga. (Feb. 14, 2023) – A bill filed in the Georgia House would ban state and local enforcement of a wide range 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.
Rep. Charlice Byrd (R) and a coalition of five Republicans introduced House Bill 293 (HB293) on Feb. 9. The bill is a companion to Senate Bill 67 (SB67) filed earlier this month. The legislation would ban 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, rules and regulations” that infringe on the right to keep and bear arms.
“All federal acts, laws, executive orders, administrative orders, rules, and regulations, regardless of whether enacted or issued before or after the effective date of this Act, that infringe on the people’s right to keep and bear arms, as guaranteed by the Second Amendment to the Constitution of the United States and Article I, Section I, Paragraph 8 of the Constitution of Georgia, shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state.”
HB293 is similar to a law that was passed in Missouri in 2021, which is already having a significant impact on ATF enforcement capabilities in that state.
DETAILS OF THE LEGISLATION
The bill includes a detailed definition of federal acts that “infringe on the people’s right to keep and bear arms,”
- taxes, fees and stamps 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, or their owners, 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.
The proposed law defines a “law-abiding citizen” as “an individual who is not otherwise precluded under state law from possessing a firearm.”
All government employees in Georgia would be prohibited from enforcing or assisting in the enforcement of any such federal acts:
No person or entity, including any public officer or employee of this state or any political subdivision thereof, shall have the authority to enforce or attempt to enforce any federal acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances infringing on the right to keep and bear arms set forth in Code Section 16-11-183.
Under the proposed law, such infringement on the right to keep and bear arms would include provisions of the National Firearms Act of 1934, the Gun Control Act of 1968, the 2018 bump-stock ban, two ATF regulations from executive orders issued by Joe Biden – including the most recent pistol brace rule – proposed federal “red-flag laws,” and any future gun control schemes implemented by the federal government.
Law enforcement agencies and political subdivisions in Georgia that knowingly employ a person who knowingly enforces or attempts to enforce any of the infringements outlined by the law or for giving material aid and support to such enforcement efforts would be subject to a civil penalty up to $50,000 for each such instance.
Agencies and political subdivisions would also “be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress.” Any person whose rights are violated by a government agent defying the enforcement ban would have standing to pursue injunctive relief in state court, including “reasonable attorney fees and costs.”
“Sovereign, official, or qualified immunity shall not be an affirmative defense in such actions.”
The state of Georgia 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”
However, it’s important to note that 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 for any reason they choose.
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.”
HB293 was referred to the House Judiciary – Non-Civil Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
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