JACKSON, Miss. (Mar. 22, 2016) – A Mississippi bill that would set the foundation to reject and end new federal gun control regulations and executive orders passed an important Senate committee last week. The bill already passed the full House and will now move to the full Senate for further consideration.
Rep. Mark Formby (R-Picayune), along with 13 cosponsors, introduced House Bill 782 (HB782) last month. . As passed by the House Judiciary B committee last week and the full House today, the legislation would prohibit any state agency, political subdivision, and their employees from knowingly and willingly participating in any way in the enforcement of any future federal executive orders, or agency rules that were not passed by Congress and signed by the president, regarding a personal firearm, firearm accessory, or ammunition if the act would be contrary to Section 12, Article 3, Mississippi Constitution of 1890.
The bill would also bar the utilization of any state assets, state funds, or funds allocated by the state to local entities for enforcement of the same. State officers violating the law would be subject to criminal penalties.
“The federal government is out of control, and the states have a duty to reestablish the rule of law. We have checks and balances, and the Supreme Court has clearly ruled that the states can’t just be ordered around by the federal government,” said Elaine Vechorik, Vice-President of Mississippi for Liberty.
After passing the House by a vote of 75-46 last month, HB782 ran into some significant behind the scenes opposition. But work by supporters convinced members of the Senate Judiciary A committee to include some of the language of the original bill into another bill they were planning to pass.
The result is that much of the intent of HB782 is now incorporated into HB786, a bill to let church members carry guns in protection of the congregation. The amended version of HB786 passed by the committee on Mar. 17 includes the following language:
SECTION 5. No federal executive order, agency order, law not enrolled by the United States Congress and signed by the President of the United States, rule, regulation or administrative interpretation of a law or statute issued, enacted or promulgated after July 1, 2016, that violates the United States Constitution or the Mississippi Constitution of 1890 shall be enforced or ordered to be enforced by any official, agent or employee of this state or a political subdivision thereof.
The Mississippi state constitution reads, in part:
“The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.”
In his important study on the right to keep and bear arms in state constitutions, Constitutional Scholar Dave Kopel noted, “The concealed weapon restriction underscores that “the right to keep and bear arms” includes the right to carry non-concealed firearms for personal protection.”
As the NRA-ILA resource page for the state points out, Mississippi doesn’t require licensing, a permit to carry, or registration for rifles and shotguns, with handguns only needing a permit to carry, but no licensing or registration. It also has the Castle Doctrine enacted into law, right to carry in restaurants, and right to carry confidentiality, among other protections.
Any federal executive order, rule, regulation, or interpretation of existing law that attempts to enact such restrictions would ensure that state or local enforcement of the federal gun control would be prohibited as violating “Section 12, Article 3, Mississippi Constitution of 1890.”
Recently-proposed federal measures, such as an M855 ammo ban would fall under the new law and state resources could be prohibited from being used to help the federal government enforce such a ban. And any attempt to bring in more gun control through a presidential executive order, or “executive action” would also full under the scope of the bill.
FOUNDATIONAL FIRST STEP
If passed into law, HB786 would likely require further action to be put into practical effect. A lawsuit could be necessary to determine a violation of the state Constitution, or the legislature might need to create some mechanism to determine whether a federal action was contrary to the Mississippi constitution. The latter could be included in the bill this year with an amendment.
But even without such a bold move, the would set a good foundation to build on, and would 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.
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 effective 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.”
The bill 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.”
HB786 will now move on to the Senate floor for further consideration. If passed there, it will go back to the House, where that chamber will have an opportunity to approve the amended version that includes language from HB782, or reject it. Since the House already passed HB782 as well, inside sources suggest that grassroots pressure will help send the bill to the Governor.