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Mississippi Bills Would Set Foundation to Stop any New Federal Gun Control in Practice

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JACKSON, Miss. (Feb. 10, 2016) – Two bills introduced in the Mississippi Senate would take the first step toward prohibiting state cooperation with the enforcement of future federal gun control measures, a move that would effectively block them in practice in the Magnolia State.

Sen. Michael Watson (R-Pascagoula) introduced Senate Bill 2234 (SB2234) and Sen. Angela Burks Hill (R-District 40) introduced Senate Bill 2110 (SB2110) on Feb. 1. The legislation titled the Federal Firearm, Magazine and Register Ban Enforcement Act would prohibit state cooperation with enforcement future federal gun laws that violate the Second Amendment or the Mississippi state constitution.

“An official, agent or employee of the state or a political subdivision of the state shall not knowingly and willfully order enforcement of a federal executive order, agency order, law, statute, rule or regulation that is issued, enacted or promulgated on or after the effective date of this act as to a personal firearm, a firearm accessory or ammunition if the federal executive order, agency order, law, statute, rule or regulation is contrary to the provisions of Article 3, Section 12, of the Mississippi Constitution of 1890 or the Second Amendment of the Constitution of the United States.”

State employees or agents willfully enforcing such federal gun control laws would face criminal penalties.

Both bills would set the stage to end cooperation with state enforcement of future federal gun laws, but it would require additional actions to effectuate. The withdrawal of state cooperation depends on a finding of constitutionality – the federal action must violate either the state or U.S. Constitution. The bill does not create any mechanism to make that determination. Before ending cooperation with a given federal act, some process must be put in place to evaluate its constitutionality.

The Mississippi legislature could make either bill immediately effective by removing the requirement for a determination of constitutionality. Instead, simply prohibit cooperation with all future (or current) federal laws, acts, rules or regulations relating to firearms. This approach removes the need for a determination of constitutionality and would have immediate effect on any new gun control coming from Washington D.C.

But even without such a bold move, the legislation sets a good foundation to build on, and could represent an important strategic step forward. As Thomas Jefferson wrote to James Madison about the passage of the Kentucky Resolutions of 1798, it’s important to be strategic:

I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.

EFFECTIVE

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 effectively method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from the states.

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.

The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun laws. As noted by the National Governor’s Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”

“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 schemes, the states can effectively bring them down.”

LEGAL BASIS

The legislation 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 four Supreme Court cases dating back to 1842. Printz v. US serves as the cornerstone.

“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 policy making 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.”

WHAT’S NEXT

SB2234 was referred to the Rules Committee where it will need to pass by a majority vote before moving on to the full Senate for consideration.SB2110 is in the Wildlife, Fisheries and Parks Committee. Having identical bills in two committees increases the chance of the legislation making it to the full Senate floor.

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