SALT LAKE CITY, Utah (April 10, 2023) – Last Month, Utah Governor Spencer Cox signed a “Federal Firearm Enforcement Limitation Act” that almost guarantees that federal gun control will continue being enforced by the state.
Rep. Karianne Lisonbee (R) introduced House Bill 219 (HB219) on Jan. 16. On the surface, the legislation prohibits state and local agencies from “implementing, enforcing, assisting, or cooperating in the enforcement of a federal regulation on firearms, firearm accessories, or ammunition” that isn’t duplicated in state law. It also prohibits the expenditure of public funds for the same.
HB219 defines a “federal regulation” as “a federal law, statute, executive order, rule, or regulation that infringes upon, prohibits, restricts, or requires individual licensure for, or registration of, the purchase, ownership, possession, transfer, or use of a firearm, ammunition, or firearm accessory.”
This might sound good, but in effect, the law won’t stop the enforcement of much of anything.
In the first place, the law explicitly allows the state to continue enforcing all federal gun control, past present, and future as long as it Congress passed it. This includes the National Firearms Act of 1934, the Gun Control Act of 1968, and any future “assault weapon” ban.
In the second place, the legislation includes so many exceptions and loopholes, it will do virtually nothing in practice or effect. In fact, language in the bill will likely give a green light for state and local law enforcement to keep working with the ATF to violate the Second Amendment.
With all of the exceptions, state and local police will be able to cooperate with the enforcement of federal gun control virtually any time they want to.
First, the law allows state and local police to enforce federal gun control if “the primary purpose of the cooperation is not the investigation or enforcement of a federal regulation on firearms, ammunition, or firearm accessories.” That means all state and local police have to do is claim they are working a drug case or some other investigation and then they can help enforce federal gun control to their hearts’ content. In fact, most federal firearms enforcement is in conjunction with other investigations.
Second, it allows state and local police to enforce federal gun laws if “they are serving on or participating in a federal, or federally funded, law enforcement task force or program if investigation and prosecution of state or federal firearms regulations are part of the duties of the task force or program,” or if “the law enforcement officer, state employee, or employee of the political subdivision is compensated by federal funds.” It also allows enforcement of federal gun control by a “state law enforcement task force or program that receives federal funding.”
That means all task force activity enforcing all federal gun control will continue. Most cooperation between federal and state law enforcement happens through these task forces. On top of that, the feds can simply send money to a state or local police department to enforce federal gun control. In effect, state and local police can continue enforcing unconstitutional gun control as long as the feds pay for it.
Finally, HB219 specifically authorizes state and local agencies to refer a case to the feds if they reasonably believe a federal law regarding firearms, ammunition, or firearm accessories has been violated. This will encourage state and local police to tattle to the feds.
In effect, with the exceptions, this law prohibits state and local police from cooperating with the enforcement of federal gun control unless they are partnering with the feds to enforce federal gun control.
Tenth Amendment Center executive director Michael Boldin pointed out that the bill bans state enforcement of federal gun control unless A) they’re mostly doing federal drug prohibition, B) they’re part of a gun control task force with the feds, or C) if they’re just narcing on people to the feds.
“Maybe the worst ever,” Boldin said.
Without a bunch of exceptions, prohibiting state and local cooperation with federal gun control would an effective way to move toward ending its enforcement in the state.
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.”
The state of Utah 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.
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