FRANKFORT, Ky. (March 16, 2023) – Yesterday, the Kentucky Senate gave final approval to a bill that would ban state and local enforcement of any federal gun control enacted or implemented after Jan. 1, 2021. This includes the new ATF rule on pistol braces. Passage into law would take a step toward ending some federal acts that infringe on the right to keep and bear arms within the state.
Rep. Josh Bray (R) and Rep. Derek Lewis (R) introduced House Bill 153 (HB153) on Feb. 7. The legislation would prohibit Kentucky law enforcement agencies, local governments, and public agencies from adopting a rule, order, ordinance, or policy under which the entity enforces, assists in the enforcement of, or otherwise cooperates in a “federal ban” on firearms, ammunition, or firearm accessory. It would also prohibit the expenditure of public funds for the same.
HB153 defines a “federal ban” as “a federal law, executive order, rule, or regulation that is enacted, adopted, or becomes effective on or after January 1, 2021, or a new and more restrictive interpretation of a law that existed on January 21, 2021, that infringes upon, calls into question, prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, ammunition, or firearm accessories.”
The legislation is modeled after a law passed by Montana in 2021 and already taking effect against two ATF regulations from executive orders issued by Joe Biden – including the most recent pistol brace rule.
On Feb. 22, the House passed HB153 by a vote of 78-19. On March 15, the Senate approved the measure by a 27-9 vote.
HB153 now goes to Gov. Beshear’s desk for his consideration. Although he is expected to veto HB153, the legislature can override the governor with a simple constitutional majority.
State or local government agents who violate the law would be subject to termination and misdemeanor criminal charges.
A person commits an offense under this section when, while acting in his or her official capacity under color of law, he or she knowingly violates this section. An offense under this section is a Class B misdemeanor for the first offense and a Class A misdemeanor for each subsequent offense.
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.”
HB153 is fundamentally different than the Missouri Second Amendment Protection Act (SAPA) – the law recently deemed unconstitutional by federal district court judge Brian Wimes, and currently still in effect while the appeals process plays out.
Missouri SAPA prohibits enforcement of federal laws declared to “infringe” on the right to keep and bear arms. Judge Wimes argued that making such a constitutional declaration goes beyond a legally-acceptable refusal to participate and crossed into active “interference” with federal activities. He wrote:
“While Missouri cannot be compelled to assist in the enforcement of federal regulations within the state, it may not regulate federal law enforcement or otherwise interfere with its operations.” [emphasis added]
HB153 bans enforcement of some future federal gun control as defined by the statute with no determination of constitutionality, and thus, no potential for such a claim of “interference.”
The Commonwealth of Kentucky 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”
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.
Gov. Beshear will have until March 27 to sign or veto HB153 or it becomes law without his signature. As noted above, although he is expected to veto HB153, the legislature can override the governor with a simple constitutional majority.