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To the Governor: Mississippi Constitutional Carry Bill Also Sets Stage to Reject Some Federal Gun Control

JACKSON, Miss. (Apr. 6, 2016) – Yesterday, the Mississippi House gave final approval to a bill that not only allows unlicensed, “constitutional carry,” but also sets the foundation to reject and end new federal gun control regulations and executive orders. 

Originally introduced as a church security bill to allow those with a concealed carry permit to have a firearm in church, House Bill 786 (HB786) was passed in the House by a vote of 85-33. However, when it was sent to the Senate, the scope of the bill was greatly expanded in the Judiciary A Committee. As noted by a report from Guns.com:

House Judiciary B Committee Chairman Andy Gipson, R-Braxton, himself a lawyer and minister of a small church, was able to add an amendment to allow unlicensed carry of a concealed gun elsewhere in the state so long as it is in a holster or scabbard on the belt or shoulder.

This builds on laws adopted in 2013 legalizing open carry  and one last year to allow for carry in a purse or bag without a permit. 

Additionally, Gipson’s amendment included language from House Bill 782 (HB782), introduced by Rep. Mark Formby (R-Picayune), along with 30 cosponsors. That bill passed the House last month by a vote of 75-46. The language included in HB786 would take on federal gun control measures issued by rule, regulation, agency order, or executive order.  It reads:

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 bill passed the Senate last week with a 36-14 vote. It was sent back to the House for approval of the expanded Senate language, and today the full House gave final approval by concurring in the Senate amendments.

IN PRACTICE

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 regarding federal gun control. 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.

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 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. By withdrawing all resources and participation in federal gun control schemes, the states can effectively bring them down.

LEGAL BASIS

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.”

WHAT’S NEXT

Speaking in favor of the bill on the Senate floor, Sen. Sean Tindell noted that the legislation would not only protect the 2nd Amendment from further violations, but that the right to keep and bear arms is a natural, “God-given right that our forefathers recognized.”

In recent weeks, gun control groups like “Everytown for Gun Safety” and “Moms Demand Action” blitzed the state with ads against the bill, according to Guns.com.

“We beat Bloomberg!” said Elaine Vechorik, Vice-President of Mississippi for Liberty.

HB786 will now move to Gov. Phil Bryant’s desk. He must sign or veto the bill within 5 days after transmittal (excluding Sunday), or it becomes law without his signature.

Additional Reporting by Michael Maharrey

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