Texas Bill Would Nullify Enforcement Of Federal Red Flag Laws
AUSTIN, Texas (Dec. 7, 2020) – A bill prefiled in the Texas House would bar state and local officials from enforcing federal “extreme risk” protective orders – sometimes referred to as red flag laws. Passage of the bill would not only protect liberty in Texas; it would also hinder federal efforts to restrict the right to keep and bear arms.
Extreme risk orders allow a court to forcibly seize a citizen’s guns and prohibit them from further possessing or owning firearms without being convicted of a crime. Rep. Briscoe Cain (R-Webster) prefiled House Bill 336 (HB336) for the 2021 legislative session on Nov. 11.
Titled the “Anti-Red Flag Act,” the legislation would prohibit any city, county, or state official from enforcing any federal statute “purporting to implement or enforce” an extreme risk protective order. The state would also be prohibited from accepting federal grants to enforce any such measures.
Anyone attempting to enforce such laws would be guilty of a felony.
Extreme risk orders violate a person’s right to due process and their right to keep and bear arms by seizing their property without them being arrested and charged with a crime, let alone trial and conviction.
If Americans want to protect their gun rights, the answer isn’t in hiring the right lobbyists, or donating to the right political campaign, or joining the NRA. It’s taking action where you live and putting as many obstacles to unconstitutional laws in place as you can – right now, and before any new ones arise.
The threat of new and more intrusive violations of our right to keep and bear arms never goes away, regardless of election outcomes. Suffice to say, federal courts can’t be trusted to strike down illegal measures, either.
James Madison understood this well, which is why he advocated in Federalist #46 that “refusal to cooperate with officers of the union” would be an effective means of preventing the feds from stepping outside their constitutional bounds.
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.”
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 Missouri 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”
HB336 will be officially introduced when the 2021 session of the Texas General Assembly convenes on Jan. 8. It will be referred to a committee where it must pass by a majority vote before moving forward in the legislative process.
The post Texas Bill Would Nullify Enforcement Of Federal Red Flag Laws first appeared on Tenth Amendment Center Blog.
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