Second Amendment Sanctuary Bill Passes North Dakota House

AP Photo/Rick Bowmer

A bill that promises to protect guns, magazines, and ammunition manufactured in the state of North Dakota from federal gun control laws passed out of the state House of Representatives by a wide margin this week, and is now on its way to the state Senate for consideration


As a practical matter, I have a few issues with HB 1272, but at the very least it’s a symbolic middle finger from America’s heartlnd to the Biden administration’s anti-gun agenda.

Introduced by North Dakota’s District 36 Rep. Luke Simons, of Dickinson, the bill applies to firearms, firearm accessories and ammunition manufactured in North Dakota that remain within the state’s borders — thusly allowing federally restricted access to bump stocks and high capacity magazines.

Proponents of the bill say that the need for protecting already enshrined rights under the second amendment are needed considering the current administration in Washington and a long history of attacks on the second amendment. Opponents of the bill stated that the bill could allow residents to legally manufacture unregulated guns or accessories using 3-D printers, including those which have been banned by federal mandates.

The biggest problem with the bill is the fact that courts haven’t looked kindly on similar measures in the past. In 2009, for instance, Montana’s Firearms Freedom Act, which was nearly identical to the bill currently being debate in North Dakota, was enacted into law. However, federal gun control laws continued to be enforced in the state, and a legal challenge that sought to force Montana to stop enforcing federal law as it applied to guns manufactured and maintained within the state’s borders was dismissed by a federal judge.


The Ninth Circuit Court of Appeals upheld the dismissal of the lawsuit, ruling that under Supreme Court precedent Congress has the authority to regulate the internal manufacture of firearms within any given state because the “creation and circulation of such firearms could reasonably be expected to impact the market for firearms nationally.” The case was appealed to the U.S. Supreme Court, but the Court chose not to accept it.

Now, North Dakota isn’t in the Ninth Circuit, so if this legislation passes and is signed into law the Montana experience and court rulings that came as a result wouldn’t be binding on the state. However, given the wide latitude that the Supreme Court has given to Congress through Commerce Clause jurisprudence, it’s highly unlikely that the Eighth Circuit is going to eventually rule in North Dakota’s favor in any legal challenge to the sanctuary law.

From a practical standpoint the North Dakota legislation is more sizzle than steak, which is a shame, because there is a way for states like North Dakota to at least tell the federal government that it won’t lift a finger or spend a dime on enforcing federal gun control laws. As I detailed last month:

A more meaningful way of approaching the issue would be to take a page from California, oddly enough. The sanctuary state bill limiting law enforcement cooperation with ICE that was signed by then-Gov. Jerry Brown has been upheld by the federal courts, and could easily be used as a blueprint for turning a state like Arizona into a Second Amendment Sanctuary.

Rather than trying to base enforcement (or lack thereof) on the constitutionality of any new gun control law, legislation could declare or specify that local or state law enforcement will not work or assist federal agencies in, say, investigating or prosecuting any non-violent, possessory federal firearm offenses involving legal gun owners.

Not only would the legislation have more teeth than the bill currently filed, by mirroring California’s sanctuary state language on illegal immigration it would have a much better chance of surviving court scrutiny. As law professor Robert Anthony McReynolds has explained, the Supreme Court has already weighed in on the issue of local enforcement of federal laws, and found room for states to decline to participate.


The Supreme Court has ruled that while states can’t interfere with the enforcement of federal statutes, the federal government cannot force or compel states to enforce those statutes on their own.

HB 1272 goes much further than Supreme Court precedent, however; declaring that “A personal firearm, firearm accessory, or ammunition manufactured commercially or privately in the state and which remains within the state is not subject to federal law or federal regulation, including registration as those items are not subject to regulations related to interstate commerce.”

That’s much stronger language than what you’d find in a bill that relying on the Printz decision, but if the North Dakota bill is going to be rejected by the federal courts, as is almost certainly the case, then it’s a moot point. Personally, I’d rather lawmakers work to put in place the strongest legal protections that will withstand a court challenge rather than attempt to convince the courts to overturn 90 years of Commerce Clause precedents, but since I don’t live or vote in North Dakota, I’m simply an interested party without any say in how lawmakers there choose to try to protect the Second Amendment rights of residents and companies operating within the firearms industry.


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