AUSTIN, Tex., November 15, 2016 – Yesterday, a Texas state representative prefiled a bill to prohibit the state from using personnel or resources to enforce federal gun control measures, setting the foundation to block them in practice within the state.
House Bill 110 (HB110), filed by Representative Matthew Krause, (R-Ft. Worth), would deny state material support and enforcement of many federal gun control measures, past, present or future. Experts have noted that the federal government lacks the resources to enforce such measures without participation on the state level and passage would help eliminate enforcement in practice. 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.
“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,” said Krause in response to a similar bill introduced last legislative session.
As even the Huffington Post has recently acknowledged, “resources of the federal government are stretched thin,” and such bills would “have effects beyond a simple symbolic statement. ”
Fox News senior judicial analyst Judge Andrew Napolitano affirmed the strategy. In a discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
This mirrors the advice of James Madison, the “father of the Constitution,” who wrote in Federalist #46 that an effective strategy for individuals and states to stop federal acts included a “refusal to cooperate with officers of the Union.”
LEGAL AND CONSTITUTIONAL
Refusing to participate with federal enforcement is not just an effective method, it has also been sanctioned by the Supreme Court in a number of major cases, dating from 1842. The 1997 case, Printz v. US serves as the cornerstone. In it, the late Justice Scalia held:
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.
As noted Georgetown Law Constitutional Scholar Randy Barnett has said, “This line of cases is now considered well settled.”
While many gun rights advocates are not expecting any new federal gun control measures from a Trump administration backed by a Republican House and Senate, there are many federal gun control measures already on the books, dating as far back as 1934.
“This bill draws a line in the sand on federal gun control” said Scott Landreth of ShallNot.org. “Passage sets the foundation for rejecting every federal gun control measure – past, present, or future.”
Texas has no “assault weapon” law, no registration requirement, no state permit to purchase requirement, no owner license requirement, and no magazine capacity restriction.
The way this could play out is that if the federal government were to enforce any such federal laws in Texas, they would have to try to do it without any help from Texas law enforcement. This would mean Texas agents or employees wouldn’t knock on a door to serve a warrant, they wouldn’t help with traffic control when the federal agents were trying to conduct an operation, they wouldn’t share information, wouldn’t allow Texas prisons to temporarily hold or detain people arrested, and the like.
If a local cop pulled someone over for a traffic violation and saw a federally-banned firearm in the car that didn’t have a concurrent Texas ban, the cop could simply give the guy a ticket for the traffic violation and send him on his way.
Something that could be particularly notable is the federal Undetectable Firearms Act of 1988 (18 U.S.C. § 922(p)). The law is in effect until 2023 and “makes it illegal to manufacture, import, sell, ship, deliver, possess, transfer, or receive any firearm that is not as detectable by walk-through metal detection as a security exemplar containing 3.7 oz of steel, or any firearm with major components that do not generate an accurate image before standard airport imaging technology.”
No concurrent prohibition exists in Texas.
NEXT UP/TAKE ACTION IN SUPPORT
HB110 will first be assigned to a committee, where it will need to pass before the full state house can consider it.
In the Senate, a similar bill was also prefiled today by Sen. Bob Hall. Senate Bill 93 (SB93) will be assigned to a committee where it will first need to pass before the full Senate can consider it.
Even though the legislative session doesn’t officially begin for nearly 2 months, activists in support of this bill are encouraged to take the following actions:
1. Find your state representative and senator at this link: http://www.fyi.legis.state.tx.us/Home.aspx
2. Call him or her – a phone call has far more impact than an email. Strongly, but politely ask your representative to co-sponsor and support HB110. Ask your senator to co-sponsor and support SB93
3. If they do not commit to a YES, ask them why and let us know.
4. If they’re undecided, let them know you’ll give them some time to review the legislation and that you will call back in a week to follow up.