From Tenth Amendment Center
HARRISBURG, Pa. (Sept. 10, 2018) – A bill introduced in the Pennsylvania House would prohibit enforcement of some federal gun control laws. Passage of this bill would take a big step toward making Pennsylvania a sanctuary state for gun owners.
Rep. Daryl Metcalfe (R- Cranberry Township) introduced House Bill 357 (HB357) on Sept. 5, with 41 bipartisan cosponsors. Titled the “Right to Bear Arms Protection Act, the bill would declare any Federal law which attempts to register, restrict or ban a firearm, or to limit the size of a magazine of a firearm,
“unenforceable within the borders of this Commonwealth.” This restriction would apply to both federal and state agents.
Section 1, subsection B states:
Penalty.–An official, agent or employee of the Federal Government, the Commonwealth or a political subdivision who enforces or attempts to enforce a Federal law under subsection (a) commits a felony of the third degree and, upon conviction, shall be subject to imprisonment for not less than one year or more than seven years, a fine of not more than $15,000, or both.
The bill also stipulates that the state attorney general must defend any Pennsylvania resident prosecuted by the federal government for a violation of federal law that attempts to register, restrict or ban the ownership or purchase of a firearm, magazine of a firearm, firearm accessory or ammunition that is retained within the state of Pennsylvania.
With so many activists and organizations putting all their energy into how to protect gun rights in D.C., legislation such as HB357 serves as an excellent example of how to resist federal gun control at the state level. The spirit of its text is in keeping with a “refusal to cooperate with officers of the Union” as James Madison’s put in Federalist #46. It deprives the feds of critical state resources necessary to make enforcement of these laws viable. That alone is enough to make these laws DOA in the state.
If enough states followed suit, the collective action would moot any future proposals by even the most ardent gun grabbers in D.C.
EFFECTIVE
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify in effect many federal actions. 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.”
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 state and local governments.
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.
“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, states and even local governments can help bring these unconstitutional act to their much-needed end.”
Some gun rights supporters argue that such a measure is “unnecessary” because it addresses a nonexistent problem with a Republican Congress and an NRA-backed president. In fact, the Trump administration actually ramped up enforcement of federal gun laws in 2017.
However, HB357’s prohibition on federal enforcement also makes it clear that any federal laws restricting the right to keep and bear arms are in direct contravention of the Second Amendment (of course, even without the amendment the federal government would require the enumerated power to do so).
On a more practical level, it protects innocent Pennsylvanians from federal prosecution for victimless crimes. In 1982, the Senate Subcommittee on the Constitution found that 75 percent of ATF gun prosecutions were against citizens who had been lured by government agents into committing technical violations of federal gun control laws.
PRACTICAL IMPACT
The state of Pennsylvania can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement 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 five Supreme Court cases dating back to 1842. Printz v. U.S. 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 sovereign
As we’ve explained in the past, practically speaking, it would be extremely difficult for the state to prosecute federal agents for enforcing federal law. Under federal statutes, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.
Nevertheless, the threat of arrest would create problems for federal agents trying to enforce unconstitutional gun laws in Pennsylvania and would certainly gum up the works even if they were never prosecuted.
WHAT’S NEXT
HB357 was referred to the House Judiciary Committee where it must pass by a majority vote before moving forward in the legislative process.
TJ Martinell
September 10, 2018 at 12:49PM
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