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Tuesday, November 25, 2014

Law Prof: States Can Refuse to Enforce Federal Gun Laws

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(GunNews.com) — On Monday, the Texas House of Representatives passed a bill (H.B. 1076) that would bar state officials from enforcing any new federal gun laws. Predictably, the anti-gun left calls the bill “crazy” and says the measure, if passed, won’t withstand a legal challenge. But it will, says a law professor.

MaddowBlog’s Steve Benen says, “In this case, Texas’ nullification bill effectively hopes to freeze the status quo of federal gun laws in place indefinitely. The state is prepared to honor federal laws as they currently exist, but if policymakers in Washington expanded current laws in any way, Texas would ignore those changes — based on the “because I say so” theory of modern jurisprudence.

“It wouldn’t matter if new federal laws are entirely constitutional; it wouldn’t matter if the new laws saved lives; it wouldn’t matter if the new news enjoyed broad, bipartisan support. Under the proposal pending in Texas, current laws have reached a ceiling, and any effort to raise that ceiling must be ignored.

“This is, of course, crazy. Whether Texas likes it or not, states can’t pick and choose which federal laws they’ll honor and which they’ll ignore.

“I can’t say at this point whether the pending bill has a chance of passing, though it seems like the sort of thing Gov. Rick Perry (R) would like to sign. But I can say the bill, if it becomes state law, would not withstand a legal challenge.”

Writing on the Volokh Conspiracy, law professor Jonathan H. Adler rebutted and said, “I’ve got some news for Mr. Benen. States, in fact, can ‘pick and choose which federal laws’ state officials will enforce, and state refusals to enforce federal law would most definitely ‘withstand a legal challenge.’ In fact, they already have. See, e.g. Printz v. United States, in which the Supreme Court held that state officials could refuse to implement a federal background check requirement for the purchase of new firearms. Under Printz and New York v. United States, it is well established that the federal government cannot force state officials to implement federal laws.

Adler continues, “Whether or not this specific bill is a good idea, this is not a ‘nullification’ bill. It would not prevent federal officials from enforcing federal law within the state of Texas. As described by Benen’s source, it is simply a bill that says state officials will not enforce certain federal laws — and that is something states have every right to do.”

Jonathan H. Adler, is an American legal commentator and law professor at the Case Western Reserve University School of Law.

Read more.

Read the bill.

 

Comments
19 Responses to “Law Prof: States Can Refuse to Enforce Federal Gun Laws”
  1. Russ says:

    Why is it crazy ? The Federal Govt. continually refuses to enforce the Federal law on a selective basis. A prime example of selective enforcement is the refusal to enforce USC 8 concerning Illegal aliens, and ordering the States and other agencies to ignore the same law. I seriously doubt that the majority of this countries citizens have even looked at that section of Federal law, but they should take just a few moments of their time to do so. Many concerns and questions will be answered there.

  2. Jim London says:

    City,county and state officals that enforce laws,IE- police or deputies or highway patrol types never have, repeat never have enforced Fedreal Laws. What is enforced is city codes or municiple enacted laws, county ordinances, or state passed laws for criminal and some civil laws. If you are not a federal officer or agent you do NOT enforce the federal law. As such, federal agents of any agency do NOT enforce the state or city / county laws enacted by a particular state.
    Once a federal law is enacted then it is the individual states legislatures needs to make a state law that can be enforced by the NON federal law officers..
    I cannot think of any state that on it’s own enforces a federal law by federal statue when the said law is broken. What is enforced against the bad person is the state law passed to mirror the federal law.
    SO, If the state does not make a law to mirror the federal statute no enforcement action is taken to begin with. The only exception is the Federal Motor Carrier Laws that cover commerical vehicles and city,county and state law officer can be school trained to enforce these laws on commerical motor vehicles..

    • Frank Lategano says:

      Jim, As a former Federal Special Agent, well said.

    • Gary Dittrich says:

      Jim, as a current L.E.O. , I might have added, you can hardly get the Federal Officers to enforce their own laws or find a prosecutor (ADA) to take it to trial. Case in point: the federal law providing for punishment for possession of a firearm
      while committing a felony. These are often prosecuted but not on any kind of consistent basis. They are too overwhelmed with so many laws and politics. Just a thought, Others may have experienced a different response.

    • William says:

      This is exactly correct. State & local officers do not enforce federal drug laws now. They enforce their own, often parallel, drug laws. There is precedent for states ignoring federal law. Leading up to the Civil War, northern states refused to enforce the federal Fugitive Slave Act, which required escaped slaves to be returned to their owners in the state from which they escaped.

  3. David Kramer says:

    fedral law is prohibited from being enforced by states, Wittness the recent dustup with Arizona over the state enforcing Fedral Immigration law. fedral law is in the purvue of the fedral goverment exclusivley. Arizona had authority to enforce fedral law had been granted by the feds that was stripped by the fedral goverment.

  4. Mitchell says:

    Municipal law enforcement officer here. I concur. Well said, Jim.

  5. Rich says:

    Is this different from the way CA treats Federal marijuana laws? I recall a story of a pot grower that was operating within CA law being arrested by Fed’s for being outside of Fed law.

    Congrats TX! I’m looking for a job in your fine state (Goodby CA)!

  6. howell clark says:

    i plead ignorance on the legality ,but i do appreciate the efforts of texans like perry and cruz on our behalf. Two more obama appointees to the court and alot of this could be rendered moot.

  7. Ron CROCKER says:

    To re-enforce the primary argument here, note that when Arizona attempted to ‘enforce federal law’ with respect to illegals, the federal government said they couldn’t do that.

    How could they now say the states must enforce new gun laws? Of course they first said the penalties for not having health insurance wasn’t a tax but as soon as they needed to, they argued in court that it was a tax.

    Under this administration, we have become a nation governed by the rule of man, rather than the rule of law.

  8. If you changed this to “not enforcing drug laws,” the left would fall over themselves to bow before you and call you a “Hero.”

  9. Charlie says:

    All that being said, and true, a federal/district judge will be found somewhere to rule against the legality, and tie things up in court, with no/slim chance of winning. That’s how the left operates. We’ve heard the terms “unlawful”, “unconstitutional”, “not legal”, etc., pertaining to this administration…….what happens….? Nothing.

  10. Keith says:

    In regards Jims post, “The only exception is the Federal Motor Carrier Laws that cover commerical vehicles and city,county and state law officer can be school trained to enforce these laws on commerical motor vehicles”.

    I work enforcing those “regulations”. For my State to enforce these regs, the state HAD to pass a State Law that adopted the Federal Regulations. If my State had not adopted the Fed. Regs. by Law, the State would not be able to enforce them. So what makes States enforcing gun ban laws any different ?

  11. M.A. Gentis says:

    I can see it all so clearly now…time to leave California. I like my firearms more than any ties I have in this state. Snow skiing, and the ocean, are the only two things California has going for it. Everything else is far left material, such as our Governor Brown (sucks), Barbara Boxer (sucks), Diane Feinstein (sucks), abortion, gay rights, and of course…political correctness. Hey Texas, I hope you have room for one more. “God Bless America”.

  12. JD Bartlett says:

    The fed’s will enforce the new gun laws, if any, against the licensed firearm dealers in Texas. Maybe, just maybe, Texas will pass their own gun dealer laws strictly concerning in-state sales and deliveries.

  13. Monica says:

    Can anyone tell me what the tenth amendment is? Anybody? Anyone at all?

    Is it the reason we amended the constitution and then repealed said amendment? Maybe?!

  14. R. Wise says:

    Texas one of the 17th States so far has refused to turn control of the military to Obama. With the National debt and our greedy Government its nice to see States that take a stand. Our Federal Government has Strpped Social Security, Medicare ,and other things in their control to bear bones. They can’t even effectively run the Postal Service. THe gun control was a hoax to get control over the people respectively law abideing citizens, Because we all know drug dealers gang bangers and felons could care less of gun laws. Also one should consider why Fema has set up so many Concentration Camps through out The U.S And bought so much Ammo. A lot of these are active camps being manned and supplied even though not in use as of yet. Control the guns and control the people I’m afraid is their goal.The U.S is a Great Country But somewhere and sometime they forgot they work for us and we should control them not them control us.

  15. K. Lee, Mesa, AZ says:

    Our government ignores its on laws. They refuse to acknowledge their mistake in nominating a person that wasn’t qualified to run for president. Our government ignored the law of protecting ambassadors and allowing perjury of the highest order from department heads like Clinton. The IRS, CIA, NSA all ignore federal law. So, what if states ignore federal law.

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