COLUMBUS, Ohio, (Feb. 20, 2023) – A bill filed in the Ohio 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 effectively ending federal acts that infringe on the right to keep and bear arms within the state.
Rep. Mike Loychik (R) and Rep. Jean Schmidt (R) introduced House Bill 51 (HB51) on Feb. 15. The “Second Amendment Preservation Act” would ban state and local law enforcement officers from enforcing any past, present, or future federal “acts, laws, executive orders, administrative orders, rules, regulations, statutes, or ordinances” that infringe on the right to keep and bear arms.
“All federal acts, laws, executive orders, administrative orders, rules, and regulations, regardless of whether they were enacted before or after the enactment of this section, that infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Section 4 of Article I, Ohio Constitution, 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.”
The legislative findings emphasize that the state respects “the proper role of the federal government but rejects the proposition that such respect requires unlimited submission.”
HB51 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
HB51 doesn’t leave the definition of an “infringement” on the right to keep and bear arms up to interpretation. Doing that would allow courts and individual government agents to decide whether or not a federal action violates the Constitution and leave the enforcement decision to their discretion. To avoid this problem, the bill includes a detailed definition of federal acts that “infringe on the people’s right to keep and bear arms.”
(1) Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services and that might reasonably be expected to create a chilling effect on the purchase or ownership of those items by law-abiding citizens;
(2) Any registration or tracking of firearms, firearm accessories, or ammunition;
(3) Any registration or tracking of the owners of firearms, firearm accessories, or ammunition;
(4) Any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens;
(5) Any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.
Law abiding citizen is defined as “a person who is not otherwise precluded under state law from possessing a firearm.”
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.
Provisions in the bill specifically address pistol braces by explicitly removing “any firearm with an affixed brace, stabilizing device, arm brace, or pistol brace” from the state definition of “dangerous ordinance” under state law.
HB51 also severs the ties between several state and federal gun laws by removing references to the federal code from state law.
PENALTIES
The proposed law creates a cause of action to sue any state or political subdivision that employs a law enforcement officer who knowingly assists in the enforcement of an infringement on the right to keep and bear arms. They would be “liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress, and subject to a fifty-thousand-dollar civil penalty per occurrence.”
Any state agency or political subdivision that knowingly employs an individual who acting under the color of federal law enforces or attempts to enforce any infringement of the right to keep and bear arms as defined by the law or gives “material aid or support” for such infringements would be subject to a $50,000 civil penalty for each employee.
EFFECTIVE
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.”
LEGAL BASIS
The state of Ohio 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.
WHAT’S NEXT
HB51 was referred to the House Committee on Government Insight where it is scheduled for its first hearing on Feb. 21
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