Why The Sponsor Of Wyoming's 2A Preservation Act Voted Against His Bill

(AP Photo/Marina Riker, File)

About a dozen states around the country are considering various forms of state-level protections for the right to keep and bear arms, from Second Amendment Sanctuary bills in Oklahoma and Texas to Second Amendment Preservation Acts in states like Missouri and Wyoming. Each bill is a little different, but the focus is largely the same: to serve as a check against unconstitutional federal gun control laws.

In Wyoming, State Sen. Anthony Bouchard introduced Senate File 81 early in the session, but when the state Senate voted last Wednesday to approve the measure, Bouchard was one of just six senators who ended voting against the proposal. Why? Bouchard claims that the bill was so heavily amended that it’s now worthless, though the 24 senators who sent the legislation on to the state House say they’ve improved the bill by making sure that it can withstand a legal challenge.

As originally written, the bill said the state could declare as invalid any federal law that infringed on Second Amendment rights, including taxes on firearms and ammunition, registration of firearms and laws forbidding the ownership, use or possession of firearms by law-abiding citizens.

The bill would also have forbidden law enforcement officers from seizing weapons in response to federal laws and would have allowed officers and their local governments to be sued over such seizures.

But senators agreed with arguments by Sen. Larry Hicks, R-Baggs, that the state needed to establish some kind of process before simply declaring a federal law invalid.

Hicks’ amendment would allow groups of 25 or more to petition the attorney general with allegations a federal gun law was an unconstitutional infringement on the Second Amendment. If the attorney general and governor agreed, the governor would issue an executive order blocking local law enforcement officers from enforcing the federal law in question.

Senators agreed the process would be a better way to handle a difference over a federal law than simply declaring the law invalid, something several said states are not allowed to do under the Constitution.

“The amendment makes the bill palatable, it makes the bill constitutional,” said Sen. Tara Nethercott, R-Cheyenne.

Not so, argues Bouchard, who says that the bill has been “gutted,” particularly with the removal of a section of the bill that allowed individual law enforcement officers to be sued if they attempted to enforce any new federal gun control measures.

Bouchard also criticized his fellow Republicans for bringing the amendment.

“In other states, it was members of the other party bringing this stuff,” he said. “It wasn’t members of my own caucus.”

But Nethercott said the way the bill was written, supporters were asking legislators to back an unconstitutional measure.

“The eye is not on the prize of preserving our Second Amendment rights, rather, it’s been distracted to devolving in on each other,” she said. “That is not acceptable. I did take an oath in this chamber to only advance constitutional legislation. Being pushed to question my oath regarding the constitutionality of legislation before this body is a request that goes too far.”

Unfortunately, as Nethercott referenced, much of the debate over the bill has devolved into pointing fingers at the lawmakers who believed the bill, as written, could not survive a legal challenge. There’s not much point in passing a piece of legislation if it’s only going to be tossed out by the courts, unless of course the intent isn’t really to pass a truly meaningful law. Bouchard’s bill, as originally written, simply declared that all federal gun laws should be considered null and void in the state of Wyoming.

All federal acts, laws, executive orders, administrative orders, court orders, rules and regulations,  regardless if enacted before or after this section, that infringe on the people’s right to keep and bear arms as guaranteed by the second amendment of the constitution of  the United States and article 1, section 24 of the Wyoming constitution shall be invalid in this state, shall not be recognized by this state, shall be specifically rejected by this state and shall be considered null, void and of no effect in this state.

That’s going to be a bridge too far for the court system. Under current Supreme Court precedent, states and localities don’t have to cooperate with the federal government in enforcing any federal statute, but they can’t simply a federal law null and void within their boundaries.

The biggest change to the bill was the removal of the section that allowed for lawsuits against individual law enforcement officers who might enforce a federal gun control law. The vast majority of county sheriffs in the state opposed that language, arguing that while the bill had good intentions, it would also lead to unintended consequences.

“It’s not intended to be anti-law enforcement, but it is,” Crook County Sheriff Jeff Hodge said. “The intention was good, but they need to talk to peace officers and prosecutors.”

 

Were the bill to pass, Hodge said, it could turn an ordinary arrest into a career-ending decision for a peace officer.

 

… [An] example of how problematic the proposed legislation could become involves self-defense, Hodge said. If one person shoots another in self-defense, an officer will seize the firearm used as evidence until the investigation is complete.

 

“If the investigation is completed and it turns out to be self-defense, you have just taken a firearm from a law-abiding citizen,” he said. “You are law abiding until you have been convicted.

 

“If it ends up going to court and he’s found not guilty, he’s still a law-abiding citizen so [the officer who seized the firearm] has violated the statute.”

 

It’s not difficult to imagine a scenario in which an officer feels reluctant to seize a firearm, even in a potential murder case, as doing so could end their career.

 

“Even though we have probable cause to arrest, it can still get to court and be dismissed,” Hodge said.

 

A letter signed by all 23 sheriffs to the Wyoming Legislature describes this as an “impossible dilemma.”

 

“For example,” the letter states, “we could normally seize a firearm as part of a local case and turn the firearm over to federal entities for prosecution. These cases run the gamut of aggravated robbery, child pornography and various dangerous drug investigations.”

 

The letter also expresses concern over the stripping of qualified immunity, which protects police from unintentional violations of rights.

 

The effects of the legislation would be immense, Hodge said, from huge increases in insurance costs to impacts on recruitment.

Bouchard is right that the amendments to the bill mean the legislation doesn’t go as far as it would have originally, but those state senators who voted for the measure in its amended form are also correct when they say that it’s now on more solid legal ground. I don’t think the legislators or sheriffs who opposed the bill in its original form are Second Amendment sellouts.

In fact, I think it’s kind of silly to call folks who backed Constitutional Carry and who are opposed to any new federal gun control laws squishes on the issue, but given that Democrats hold virtually no sway in the legislature, gun owners in Wyoming can take some comfort that the fights over the Second Amendment involve intra-party squabbles over just how far to go with pro-2A legislation and not floor fights trying to block gun control bills from becoming gun control laws.

 

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Jul 31, 2021 8:30 AM ET