PHOENIX, Ariz. (March 14, 2023) – Yesterday, a second Arizona Senate committee passed a bill to expand a current law banning state and local enforcement of federal gun control to specifically include certain federal taxes on firearms.
Rep. Austin Smith (R) and a coalition of 10 Republicans introduced House Bill 2394 (HB2394) on Jan. 19. A law passed in 2021 bans the state of Arizona and all political subdivisions of the state from “using any personnel or financial resources to enforce, administer or cooperate with any act, law, treaty, order, rule or regulation of the United States government that is inconsistent with any law” of the state of Arizona regarding the regulation of firearms.
HB2394 would add language to include “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” to that prohibition.
On March 13, the Senate Rules Committee passed HB2394 by a 4-3 vote.
The House previously passed HB2394 by a vote of 31-29.
The Arizona law is fundamentally different than the Missouri Second Amendment Protection Act — the law recently deemed unconstitutional by federal district court judge Brian Wimes. Missouri SAPA prohibits enforcement of federal laws declared to “infringe” on the right to keep and bear arms. Judge Wimes argued that this declaration of infringement “interferes” with federal activities. The Arizona law bans enforcement of any federal gun control that does not exist under state law with no determination of constitutionality.
The state of Arizona 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.
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.”
HB2394 now moves to the Senate floor for consideration.
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