Nebraska Committee Holds Hearing on Bill to Ban State Enforcement of Most Federal Gun Control

LINCOLN, Neb. (Feb 3, 2023) – On Thursday, a Nebraska committee held a hearing on a bill that would take on federal gun control and end state and local enforcement of many federal acts that infringe on the right to keep and bear arms within the state. As usual, the most aggressive opposition came from police.

Sen. Steve Halloran (R) introduced Legislature Bill 188 (LB188). Titled the “Second Amendment Preservation Act,” the bill would prohibit state agencies and law enforcement officers from willfully enforcing a federal statute, order, rule, or regulation purporting to regulate a firearm, a firearm accessory, or firearm ammunition that “does not exist under the laws of this state,” expect to comply with an order of a court.

The proposed law would also bar any Nebraska government entity from utilizing assets, state funds, or funds allocated by the state to engage in any activity that aids a federal agency, federal agent, or corporation providing services to the federal government in the enforcement of the same.

State or local agents guilty of violating the act would be subject to civil penalties of up to $3,000 on the first offense and class I misdemeanor charges on a second offense. Local governments or agencies found guilty of violating the law would lose grant funds in the following fiscal year.

LB188 is similar to a law passed in Arizona during the 2021 legislative session.

On Feb. 2, the Government, Military and Veterans Affairs Committee held a public hearing for LB188.

Dave Kendele testified in favor of the bill, noting that 91 of Nebraska’s 93 counties adopted resolutions declaring themselves “Second Amendment sanctuaries” in 2021. This bill codifies the spirit of these efforts into a single state law,” he said.

Police lobbyists came out in opposition to the bill, saying it would threaten their partnerships with federal law enforcement. Lincoln Police Union spokesperson Matt Franken told the committee that drug and gang violence often involve guns and having federal prosecutors assist frees up local prosecutors for other cases.

A representative from the Omaha Police Department was more direct. Michael Todd Kozelichki said the bill could impact the department’s ability to get federal grant funding and partner with federal task forces.

“Essentially, LB194 handcuffs the cooperation between local law enforcement and federal law enforcement more than it handcuffs the criminals who are out there committing violent crimes,” Kozelichki said.

“These police lobbyists are pretty clear about what they want and what they want to do,” Tenth Amendment Center executive director Michael Boldin said. “They’re not interested in ending gun control enforcement, they just want the federal partnerships, federal gun grabbing and federal funding to keep flowing.”

STRATEGY

While passage into law wouldn’t end all gun control in Nebraska on day one, it would represent a  massive shift in strategy going forward.  Once in effect, the bill would immediately do the following:

1. Ban state and local enforcement of any federal gun control measures on the books that fall within the five specific categories that don’t have concurrent measures in law in the state of Nebraska.
2. Ban state and local enforcement of any new gun control measures that might come from Washington D.C. in the future that aren’t on the books in Nebraska.
3. Shift the focus and attention to any remaining gun control measures on the books in state law
4. Encourage gun rights activists to work in future legislative sessions to repeal those state-level gun control measures as a follow-up.

Each state-level gun control repeal would then represent a one-two punch, not only ending state enforcement but automatically ending support for any concurrent federal gun control measure as soon as the state law repeal went into effect.

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 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.”

LEGAL BASIS

Nebraska 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. (1997) serves as the cornerstone. For the majority, Justice Scalia wrote, in part:

“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 policymaking 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.

WHAT’S NEXT

LB188 needs to be brought up for a vote in Government, Military and Veterans Affairs Committee and pass by a majority vote before moving forward in the legislative process.

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