Now that Joe Biden’s officially been sworn in as president, it’s the Right that gets to #resist over the next four years, and several states are already taking steps to do exactly that in response to Biden’s call for a ban on modern sporting rifles, commonly-owned magazines, and a host of other restrictions on the right to keep and bear arms.
On today’s Bearing Arms’ Cam & Co we take a look at how that resistance is shaping up, starting with the growing number of state lawmakers who are embracing federalism and pushing for a statewide Second Amendment Sanctuary status.
Oklahoma State Senator Nathan Dahm offered his proposal last November, but the movement has really started to pick up steam since Texas Gov. Greg Abbott declared that making the state a Second Amendment Sanctuary would be a top legislative priority this session.
There are already some 60 counties across the Lone Star State that have adopted Second Amendment Sanctuary resolutions of their own. I don’t know how much that influenced Abbott’s decision, but in this case it’s both smart politics and policy.
“I want to make sure that Texas becomes a Second Amendment sanctuary state so that no government official at any level can come and take your gun away from you, despite those people who said, ‘Heck yes, we’re going to take your gun,’” said Abbott during the Texas Public Policy Foundation’s 2021 Policy Orientation.
“We’re gonna say, ‘Heck no, you cannot take people’s guns away in Texas,’” said Abbott in a self-censored reference to Beto O’Rourke’s quip during his presidential campaign.
Besides the bills in Texas and Oklahoma, we’ve also seen Republicans in Arizona introduce similar legislation, and lawmakers in Missouri have already held the first hearing for what’s being called the Second Amendment Preservation Act.
As we discuss on the the show, however, there are some differences between these various pieces of legislation. Missouri’s proposal isn’t really a “Sanctuary” measure at all. Those typically use the language and idea of cities that declared themselves sanctuaries for illegal immigrants by refusing to cooperate with federal law enforcement or enforce federal immigration law, but the Missouri bill is based more on a Tenth Amendment argument.
[Sen. Eric] Burlison’s bill declares as invalid all federal laws that infringe on the right to bear arms under the Second Amendment. The sheriff of northeast Missouri’s Lewis County, David Parrish, has concern with some of the bill’s language. He testified for informational purposes only, emphasizing the importance of protecting the rights of law-abiding citizens.
Former State Rep. Chris Kelly, D-Columbia, a former judge, has read the bill and says it’s “unconstitutional on its face.”
As for Senator Burlison, he says all Missouri gun laws would remain in effect, under his bill. Burlison sponsored a similar bill in 2013, which was vetoed by then-Governor Jay Nixon (D). An override attempt that fall failed by one vote.
Burlison claims that under SB 39, the federal government wouldn’t be prevented from enforcing their laws, but the language of the bill itself reads a little differently to me.
Any entity or person who acts knowingly, as defined under section 562.016, to violate the provisions of section 1.450 or otherwise knowingly deprives a citizen of Missouri of the rights or privileges ensured by Amendment II of the Constitution of the United States or Article I, Section 23 of the Constitution of Missouri while acting under the color of any state or federal law shall be liable to the injured party in an action at law, suit in equity, or other proper proceeding for redress.
2. In such actions, the court may award the prevailing party, other than the state of Missouri or any political subdivision of the state, reasonable attorney’s fees and costs.
3. Sovereign, official, or qualified immunity shall not be an affirmative defense in such actions.
4. Any person acting as an official, agent, employee, or deputy of the government of the United States, or otherwise acting under the color of federal law within the borders of this state, who knowingly, as defined under section 562.016: (1) Enforces or attempts to enforce any of the infringements identified in section 1.420; or (2) Gives material aid and support to the efforts of another who enforces or attempts to enforce any of the infringements identified in section 1.420 SB 39 7 shall be permanently ineligible to serve as a law enforcement officer or to supervise law enforcement officers for the state or any political subdivision of the state.
So, federal law enforcement could still enforce federal law without the stand standing in their way, but individual officers and federal agencies could be sued in state court for doing so, and any federal law enforcement officer who enforced a federal law within the state borders of Missouri would be subject to “punishment” by being ineligible to be hired by any law enforcement agency in the state.
I don’t think that’s going to fly in federal court, which is where this bill would be challenged if it were to become law and actually enforced. Similar measures, like Montana’s Firearms Freedom Act, have been overturned by federal courts, and while the Supreme Court hasn’t weighed in on the case, I don’t have much hope that SCOTUS is going to be convinced that the feds have no role to play in enforcing federal gun laws in the various states.
That’s why the stronger approach, legally speaking, is to borrow as much as possible from California’s “sanctuary state” law dealing with illegal immigration and cooperation with ICE. That law was designed to withstand constitutional scrutiny thanks to a decision called Printz vs. U.S., in which the Court ruled that while state courts had an obligation to help enforce federal law, state and local law enforcement agencies did not. If they chose to do so, that was fine too, but they could not be compelled to participate in actively enforcing federal statutes (in this particular case, certain interim provisions of the Brady background check bill).
That decision was one of the most important Tenth Amendment cases in U.S. history, and it’s a solid legal footing for states to declare that they’re going to decline to actively enforce any new federal gun control laws (or old ones too, for that matter). Declaring that the federal government doesn’t have the authority to enforce its own laws in the states, however, is a very different argument, and I just don’t see the Court going for it. If lawmakers are truly serious about providing Second Amendment Sanctuary protections from the Biden/Harris/Pelosi/Schumer attack on the right to keep and bear arms, they should start with a solid foundation in line with the Printz decision instead of trying to blaze a new path in Tenth Amendment jurisprudence.