HARRISBURG, Pa. (May 3, 2023) – A bill introduced in the Pennsylvania Senate would ban state and local enforcement of some federal gun control. This would take a big step toward bringing such federal acts to an end within the state.
Sen. Doug Mastriano introduced Senate Bill 551 (SB551) on April 19. The legislation declares that a “federal action” relating to a firearm, magazine of a firearm, accessory, and ammunition, intended to restrict possession, transfer, or use of the same “shall be unenforcible” by an official, agent, or employee of Pennsylvania or a political subdivision of the state.
A “federal action” is defined as any of the following issued or enacted by the Federal government:
(1) An executive order.
(2) An agency order.
(3) A statute.
(4) A law.
(5) A rule.
(6) A regulation.
(7) An arbitrary clarification or classification, including any of the following:
(i) A classification of weapons based on attributes that do not go to primary combustion function of the firearm, such as natural unmodified rate of fire.
(ii) A classification designed to prohibit possession for nonmechanically necessary attributes, such as bayonet lugs, telescoping stocks, muzzle breaks or other fixtures, pistol grips and pistol braces.
(iii) A clarification issued through executive or legislative agencies designed to prohibit ownership or possession of firearms based on attributes that are nonmechanically necessary or in common use.
SB551 would specifically prohibit enforcement of a “federal action” created or taking effect after December 31, 2020, if it “attempts to register, restrict or ban the ownership or purchase of a firearm, magazine of a firearm, firearm accessory or ammunition, or to reclassify the firearm, accessory or magazine ex post facto where the result is to prohibit or restrict continued ownership or common use.”
Under SB551, “An attempt by the Federal government to create within this Commonwealth a registry regarding a firearm, component or accessory, ammunition or magazine shall be prohibited.”
SB551 includes a process to sue state actors who violate the law. It would also bar political subdivisions of the state from receiving grant funds from the state if they adopt a policy in violation of the law.
LEGAL BASIS
SB551 is fundamentally different than the Missouri Second Amendment Protection Act — the law recently deemed unconstitutional by federal district court judge Brian Wimes, and currently still in effect while on appeal. 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. SB551 would ban certain federal actions with no determination of constitutionality.
The Commonwealth of Pennsylvania 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.
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.”
WHAT’S NEXT
SB551 was referred to the Senate Judiciary Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.
