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Interview: CQ Weekly on State Actions against Federal Gun Control

Last week, I was interviewed by a reporter from CQ Weekly magazine. The topic? A report on spending by gun rights groups on a national level with a small segment on a state-level battle in Kansas, including the 2nd Amendment Protection Law being sued by the Brady Campaign.

The first thing I pointed out was that when it comes to spending, they’re focusing on Kansas, the wrong state.  If they want to include state-level efforts, they should consider Alaska, which passed HB69 into law in April 2013. It establishes the principle that no state or local agency is allowed to use any resources to “implement or aid in the implementation” of any federal acts that infringe on a “person’s right, under the Second Amendment to the Constitution of the United States, to keep and bear arms.”

I suggested that they also consider looking at Idaho. Earlier in 2014, S.1332 was signed into law prohibiting state cooperation with any future federal firearms acts.

Both of these states are saying that they won’t spend money or other physical resources to help in the enforcement of federal gun measures.

I also noted the structural difference in those laws and the part of the Kansas law that is the subject of the federal lawsuit.  In Kansas, the law includes potential criminal charges for federal agents who attempt to violate the state law. Because of the difficult nature of putting that into practice, Kansas has not seen anyone, well, put that into practice, and it’s nearly 1.5 years later. The suit is preemptive to ensure that the state will not do what it’s already not doing.

On the other hand, both Alaska and Idaho are taking what I told the reporter is “the marijuana approach.” In essence, they’re following the already effective state-level strategy of not participating in the enforcement of some federal laws. In the 20+ states doing this on marijuana, we see significant effect – the feds simply don’t have the resources to enforce their acts without state support. Alaska and Idaho, I mentioned, could be the first in a wave of states putting that same strategy into effect to protect the 2nd Amendment.

Finally, I noted the difference on the legal side of things. For Kansas, because the state law authorizes state agents to physically interfere with federal agents, the lawsuit should be expected. And because of this, as mentioned above, nothing has happened in support of the 2nd Amendment in practice.

In Alaska and Idaho, there are no lawsuits, because there’s nothing to sue over. The legal doctrine backing up the approach of a state-level stand-down has longstanding support from the Supreme Court. Known as the anti-commandeering doctrine, the court has held in major cases from 1842-2012 that states do not have to expend any resources or manpower helping the federal government carry out their acts or regulatory programs.

In response, the reporter said this (paraphrased): “Wow, that’s a really interesting sub-story, I had never even thought about those being similar.”

Using anti-commandeering is already effective on marijuana, and its effect is growing each year. The approach can have just as much impact, if not more, when it comes to the 2nd Amendment and the right to keep and bear arms.

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