TOPEKA, Kan. (Feb. 28, 2023) – A bill filed in the Kansas House would bar state and local officials from enforcing federal “extreme risk” protective orders – sometimes referred to as red flag laws. The passage of the bill would not only protect liberty in Kansas; it could also hinder federal efforts to restrict the right to keep and bear arms.
The House Federal and State Affairs Committee filed House Bill 2441 (HB2441) on Feb. 22. The legislation would prohibit any city, county, or state official from enforcing any federal act “purporting to implement or enforce” an extreme risk protective order.
Extreme risk orders violate a person’s right to due process and their right to keep and bear arms by seizing their property without them being arrested and charged with a crime, let alone trial and conviction.
The state would also be prohibited from accepting federal grants to enforce any such measures and be subject to a civil penalty of $50,000 for each individual violation. State and local law enforcement agencies would also be prohibited from hiring employees who previously enforced a red flag law following the adoption of the bill. Violating agencies would be subject to a civil penalty of $50,000.
If Americans want to protect their gun rights, the answer isn’t in hiring the right lobbyists, or donating to the right political campaign, or joining the NRA. It’s taking action where you live and putting as many obstacles to unconstitutional laws in place as you can – right now, and before any new ones arise.
The threat of new and more intrusive violations of our right to keep and bear arms never goes away, regardless of election outcomes. Suffice it to say, federal courts can’t be trusted to strike down illegal measures, either.
James Madison understood this well, which is why he advocated in Federalist #46 that “refusal to cooperate with officers of the union” would be an effective means of preventing the feds from stepping outside their constitutional bounds.
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 can nullify in effect many federal actions. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
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 Kansas 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 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.
HB2441 must receive a public hearing in the Committee on Federal and State Affairs and then pass by a majority vote before moving forward in the legislative process.
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