States have tried, unsuccessfully, to stop the federal government from enforcing its gun control laws within their borders. Recently, Kansas enacted the Second Amendment Protection Act that made it a felony for federal agents to enforce any gun laws within Kansas. Unfortunately, that did not work and two Kansas residents were convicted of violating the National Firearms Act a few weeks ago. Texas is seeking to accomplish a federal enforcement ban, but is approaching it from a different angle—lack of cooperation. On November 14, 2016, the first day that legislators could pre-file bills for the upcoming legislative session that commences January 10, 2017, State Representative Matthew Krause, (R-Ft. Worth) pre-filed HB 110, which would prohibit Texas from using any government personnel or state resources to enforce federal gun control measures if they were more restrictive than state laws. If successful, it would, in effect, nullify federal gun control laws.
Many within the State recognize that the federal government lacks funding and resources to enforce its laws without the participation of local and state law enforcement agencies. In a recent interview on “Fox and Friends,” Judge Andrew Napolitano explained that state authorities could legally choose not to enforce a federal gun law that goes against state law, but that the feds need the help of state and local authorities to enforce laws.
“Our home state of New Jersey could not, for example,” he stated, “use the police to frustrate federal law enforcement. What it could say to state and local police (is) ‘you will not cooperate.’ That will make federal enforcement of tighter federal gun laws nearly impossible.” Last legislative session, a similar bill was introduced but failed, and Krause stated then, “If the federal government has a more onerous or restrictive firearm regulation than the state does, then the state is not going to use any time, personnel, or energy to enforce those laws.” It reads, in part:
An agency of this state or a political subdivision of this state, and a law enforcement officer or other person employed by an agency of this state or a political subdivision of this state, may not contract with or in any other manner provide assistance to a federal agency or official with respect to the enforcement of a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition if the statute, order, rule, or regulation imposes a prohibition, restriction, or other regulation, such as a capacity or size limitation or a registration requirement, that does not exist under the laws of this state.
HB 110 should also withstand constitutional scrutiny. In the United States Supreme Court case Printz v. United States, 521 U.S. 898 (1997), the Court held the federal government could not compel the states to enact or administer a federal regulatory program. Even if there is no policy-making involved, Congress cannot take away a state’s sovereignty. Federalism mandates states remain independent from the federal government.
If, for example, the federal government wanted to enforce federal laws on a banned weapon, state and local law enforcement could not assist in serving warrants or participate in raids, nor share information with federal agencies. Nor could the state or local governments house any federal prisoners or detainees, even temporarily.
This is a serious attempt by Texas to enforce States Rights under the Tenth Amendment to the U.S. Constitution and to protect the rights of Texans under the Second Amendment.
We will continue to follow and report on the progress of this bill.
— by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield Blog