To the Governor: Arkansas Passes Bill to End State Enforcement of Federal Gun Control
LITTLE ROCK, Ark. (April 15, 2021) – Today, the Arkansas House gave final approval to a bill that would take on federal gun control, past, present and future, banning the state from participating in the enforcement of a wide range of acts dating back to 1934. It now moves to the Governor’s desk.
Sen. Gary Stubblefield (R) and Sen. Brandt Smith (R) introduced Senate Bill 298 (SB298) on Feb. 8. The legislation would ban any person, including any public officer or employee of the state and its political subdivisions, from enforcing any past, present or future “federal statute, executive order, or federal agency directive that conflicts with Arkansas Constitution, Article 2, § 5, or any Arkansas law” relating to the right to keep and bear arms.
On April 15, the House passed SB298 by a 76-18 vote. The Senate previously approved the bill by a 28-7 vote. It now goes to Gov. Asa Hutchinson’s desk for his consideration.
DETAILS OF THE LEGISLATION
The bill includes a detailed definition of actions that conflict with the right to keep and bear arms under the Arkansas constitution and that would not be enforced by state officers, including but not limited to:
- The National Firearms Act, 26 U.S.C. § 5801 et seq.
- The Gun Control Act of 1968, 18 U.S.C. § 921 et seq.
- taxes and fees on firearms, firearm accessories, or ammunition not common to all other goods and services that would have a chilling effect on the purchase or ownership of those items by law-abiding citizens;
- registration and tracking schemes applied to firearms, firearm accessories, or ammunition that would have a chilling effect;
- any act forbidding the possession, ownership, or use or transfer of a firearm, firearm accessory, or ammunition by law-abiding citizens;
- any act ordering the confiscation of firearms, firearm accessories, or ammunition from law-abiding citizens.
State and local officials found in violation of the law would be subject to a $500 fine for each offense.
The legislation includes a provision that would allow any person or entity that violates the law and knowingly deprives somebody of their right to keep and bear arms as defined by the law to be sued for damages in civil court.
SB298 also includes a second section that would prohibit state and local agencies and their employees from enforcing federal laws that infringe on other “enumerated rights” in the Arkansas State Constitution. This section would likely have no practical effect because unlike the section on firearms, it does not define specific federal actions that would count as infringements. Somebody would have to make that determination before any prohibition on enforcement could go into practical effect.
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 Arkansas 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.
Gov. Hutchinson will have five days from the date SB298 is transmitted to his office to sign or veto the bill. If he takes no action, it will become law without his signature.