By: Mike Maharrey
MONTGOMERY, Ala. (April 16, 2021) – Yesterday, the Alabama Senate passed a bill that would set the foundation to end enforcement of future federal gun control. Passage into law would represent a major step toward neutering future federal gun laws in Alabama.
Sen. Gerald Allen (R) introduced Senate Bill 358 (SB358) on March 30. The legislation would prohibit state and local enforcement of future federal gun control by banning the allocation of any state or local funds, and prohibiting the use of state property “for the implementation, regulation, or enforcement of any executive order, or directive issued by the President of the United States or an act of the United States Congress that becomes effective after January 1, 2021, that regulates the ownership, use, or possession of firearms, ammunition, or firearm accessories.” It would also prohibit any appointed or elected official, officer, employee, or agent of the state, or any political subdivision of the state from enforcing the same.
Any state or local agent who knowingly violates the law would face misdemeanor charges.
SB358 includes provisions to create a process for Alabama residents to file a complaint against any state or local agency in violation of the law with the attorney general. The process includes civil penalties against the violating agency.
On April 15, the Senate passed SB358 by a 22-5 vote.
A more sweeping bill that would take on gun control past, present and future (HB157) passed a House committee on March 10, but it has yet to be brought to the House floor for a vote.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in effect. As noted by the National Governors’ Association during the partial government shutdown of 2013, “states are partners with the federal government on most federal programs.”
Based on James Madison’s advice for states and individuals in Federalist #46, a “refusal to cooperate with officers of the Union” represents an extremely effective method to bring down federal gun control measures because most enforcement actions rely on help, support and leadership from state and local governments.
Fox News senior judicial analyst Judge Andrew Napolitano agreed. In a televised discussion on the issue, he noted that a single state taking this step would make federal gun laws “nearly impossible” to enforce.
“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”
The state of Alabama can legally bar state agents from enforcing federal gun control. Refusal to cooperate with federal enforcement rests on a well-established legal principle known as the anti-commandeering doctrine.
Simply put, the federal government cannot force states to help implement or enforce any federal act or program. The anti-commandeering doctrine is based primarily on five Supreme Court cases dating back to 1842. Printz v. U.S. serves as the cornerstone.
“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case by case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
SB358 will now move to the House for further consideration. Once it receives a House committee assignment, it must pass by a majority vote before moving forward in the legislative process.