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Anti-commandeering to Protect the 2nd Amendment

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While within the current legal climate a state can’t stop the federal government from passing gun control bills or regulations, they can certainly thwart their implementation and enforcement.  They can do this by refusing to participate.
Simply put, nothing requires a state to help the federal government violate your rights.

Last year, Idaho passed a bill that prohibits state agents from assisting or participating in enforcement of any future federal gun laws, and several states considered bills that would bar the state from enforcing existing federal firearms legislation. These bills share a common goal: direct state agents and employees to stop participating in the enforcement of unconstitutional federal acts, thus depriving the federal government of necessary resources and personnel.

As Fox News Senior Judicial Analyst Judge Andrew Napolitano pointed out, the federal government simply does not have the manpower to carry these measures out on their own. He said that if a state refuses to cooperate it would make “federal gun laws nearly impossible to enforce.”

Of course, the knee-jerk reaction of many “experts” is to declare these measures invalid. They rest their argument on the claim that “federal laws trump state laws when they conflict.”

But the truth is, many experts don’t have a clue what they’re talking about.

The bills in question do not “conflict” with federal laws at all; they seek to direct state agents and employees to stop participating in the enforcement of various federal acts.

THE LEGAL DOCTRINE

Is this legal?

In short, absolutely, these state laws do not come into conflict with federal laws in any legal sense.

All of these proposals are based on the widely-accepted legal principle known as the “anti-commandeering doctrine.” This means the federal government cannot require a state to carry out federal acts. The federal government can pass a law and try to enforce it, but your state isn’t required to help them.

The Supreme Court has repeatedly affirmed anti-commandeering, relevant court cases being:

  • 1842 Prigg:  The Court held that states weren’t required to enforce federal slavery laws.
  • 1992 New York:  The Court held that Congress couldn’t require states to enact specified waste disposal regulations.
  • 1997 Printz: The Court held that “the Federal Government may not compel the States to enact or administer a federal regulatory program.”
  • 2012 Sebelius: The Court held that the federal government could not require the States to expand Medicaid, even under the threat of losing federal funding.

Writing in the Printz case, Justice Scalia summed up the anti-commandeering doctrine.

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.

As constitutional scholar Randy Barnett told National Journal recently, “State governments are free to refrain from cooperating with federal authorities if they so choose. In general, states cannot attack federal operations, but that’s not the same as refusing to help.”

These noncompliance bills do not run afoul of the Supremacy Clause, even if one were to claim that all federal laws are supreme, instead of just those made “in pursuance” of the delegated powers in the Constitution. They simply exercise the state’s right to direct its personnel and resources as it sees fit.

CAN IT WORK?

In short, yes!

Anti-commandeering can have a significant impact on any prospective federal legislation undermining our right to keep and bear arms. The feds can pass their laws, but if the states refuse to cooperate, they will be left to try to enforce them on their own.

They can’t.

Even the National Governors Association admitted the same recently when they sent out a press release noting that “States are partners with the federal government in implementing most federal programs.”

That means states can create impediments to enforcing and implementing “most federal programs.”

James Madison, the “Father of the Constitution,” advised this very tactic.  Madison supplied the blueprint for resisting federal power in Federalist 46.

He outlined several steps that states can take to effective stop “an unwarrantable measure,” or “even a warrantable measure” of the federal government. Anticipating the anti-commandeering doctrine, Madison called for “refusal to cooperate with officers of the Union” as a method of resistance.

This same process was used effectively by Northern Abolitionists in resistance to the Fugitive Slave Act of 1850.

That is exactly what the 2nd Amendment Preservation Act is designed to do. It bans all state and local employees from providing material support and resources to the enforcement of federal acts on firearms, accessories and ammunition.

The question isn’t whether it will work. It’s whether or not Americans are finally going to take the initiative and resist government encroachment on their right to bear arms. A proven way to do this is through anti-commandeering.

It’s time for Americans to stop giving in to violations of their natural right to keep and bear arms. Call your state representative and senator today and encourage them to introduce and pass a SAPA bill for your state.

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