Mississippi Legislation Takes on Federal Gun Control; Past, Present, And Future

JACKSON, Miss. (Feb 11, 2020) –  Two bills introduced in the Mississippi legislature would set the foundation to create a “gun rights sanctuary state” by banning state and local enforcement of many federal gun control laws. Passage into law would represent a major step toward ending federal acts that infringe on the right to keep and bear arms within the state in practice and effect.

Rep. Randall Patterson (D-Biloxi) introduced House Bill 269 (HB269) on Jan. 27. The legislation would prohibit any state or local official, agent or employee from enforcing “any federal executive order, agency order, law, statute, rule or regulation issued, enacted or promulgated that has the purpose, intent, or effect of confiscating or banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, or requiring the registration of any firearm or its ammunition.” Any state or local official violating the law would be subject to felony charges.

Sen. Joey Fillingane (R- Hattiesburg) introduced Senate Bill 2238 (SB2238) on Jan. 31. Titled the Second Amendment Preservation Act, the legislation would prohibit any public officer or employee of the state from enforcing or attempting to enforce any infringement on the right to keep and bear arms. The bill lists specific federal actions that would constitution an “infringement,” including:

• The provisions of the federal Gun Control Act of 1934.
• The provisions of the federal Gun Control Act of 1968.
• taxes and fees on firearms, firearm accessories or ammunition that would have a chilling effect on firearms ownership;
• 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.

Under the law, any Mississippi citizen subject to an effort to enforce any of the infringements on the right to keep and bear arms would have a private cause of action for declaratory judgment and for damages against any person or entity attempting such enforcement.

The proposed law would subject federal agents who violate the law to misdemeanor charges.

SB2238 would also prohibit local governments from enacting gun control measures more strict than state law.

Under the proposed law, infringement on the right to keep and bear arms would include Pres. Trump’s bump-stock ban, proposed federal “red-flag laws,” and any future gun control schemes implemented by the federal government.

In 2016, Gov. Phil Bryant signed legislation into law that removed conceal carry licensing requirements, allowing Mississippians to carry concealed firearms without a permit. The law also set the foundation to reject and end new federal gun control regulations and executive orders in the state.

No federal executive order, agency order, law not enrolled by the United States Congress and signed by the President of the United States, rule, regulation or administrative interpretation of a law or statute issued, enacted or promulgated after July 1, 2016, that violates the United States Constitution or the Mississippi Constitution of 1890 shall be enforced or ordered to be enforced by any official, agent or employee of this state or a political subdivision thereof.

The final passage of SB2238 or HB 269 would build on this foundation and prohibit specific state cooperation with enforcement of future federal gun control laws.

EFFECTIVE

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 can nullify in effect many federal actions. As noted by the National Governor’s 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 the states.

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 can help bring these unconstitutional act to their much-needed end.”

Some gun-rights supporters argue that such a measure is “unnecessary” because it addresses a nonexistent problem with a Republican Congress and an NRA-backed president. This ignores the fact that the current administration won’t remain in power forever. And as we saw in the wake of the Las Vegas shooting, Republicans suddenly become open to gun control when the political pressure heats up after a tragedy.

LEGAL BASIS

The state of Mississippi 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”

WHAT’S NEXT

SB2238 has been referred to the Senate Judiciary (Div. B), while HB269 has been referred to the Constitution Committee. They will need to pass by a majority vote before moving forward in the legislative process.