December 2, 2015

Law Prof: States Can Refuse to Enforce Federal Gun Laws


( — 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.


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