Kentucky Bill Would Ban Enforcement of Federal Gun Control; Past, Present and Future

FRANKFORT, Ky. (Feb. 12, 2023) – A bill filed in the Kentucky Senate would take on federal gun control; past, present and future. 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.

Sen. Lindsey Tichenor (R) introduced Senate Bill 98 (SB98) on Feb. 8. The legislation would ban the state, its political subdivisions and all of their agencies from enforcing any past, present, or future federal “acts, laws, executive orders, administrative orders, rules, and regulations,” that infringe on the right to keep and bear arms.

It would also prohibit the enforcement of any future “federal bans” on firearms, ammunition, or firearm accessories.

Many of the provisions in SB98 are similar to a bill that was passed in Missouri in 2021.

Rep. Josh Bray (R) and Rep. Derek Lewis (R) introduced House Bill 153 (HB153) on Feb. 7. The legislation is more limited in scope, prohibiting the enforcement of some future federal gun control.

DETAILS OF THE LEGISLATION

Under SB98, federal acts, “regardless of whether they were enacted before or after the effective date of this section and Section 2 of this Act, that infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the Constitution of the United States and Section 1 of the Constitution of Kentucky shall be invalid in the Commonwealth of Kentucky, shall not be recognized by the Commonwealth of Kentucky, shall be specifically rejected by the Commonwealth of Kentucky, and shall not be enforced by the Commonwealth of Kentucky or any of its agencies or political subdivisions.”

The bill includes a detailed definition of actions that qualify as “infringements,” including but not limited to:

• 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, or their owners, 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.

The proposed law defines a “law-abiding citizen” as “an individual who is not otherwise precluded under state law from possessing a firearm.”

Under the proposed law, infringement on the right to keep and bear arms would include provisions of the National Firearms Act of 1934, the Gun Control Act of 1968, President Trump’s bump-stock ban, two ATF regulations from executive orders issued by Joe Biden, proposed federal “red-flag laws,” and any future gun control schemes implemented by the federal government.

The legislation includes a provision that would allow anybody who 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.

“Sovereign, governmental, and qualified immunity are waived to the extent of liability created under this section.”

SB98 defines a “federal ban” as “s a federal law, executive order, rule, or regulation that is adopted, enacted, or becomes effective after the effective date of this Act, or a new and more restrictive interpretation of the law that existed prior to the effective date of this Act, that infringes upon, calls into question, prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, ammunition, or firearm accessory.

“A law enforcement agency, law enforcement officer, employee of a law enforcement agency, public agency, public official, employee of a public agency, or employee of a local government shall not enforce, assist in the enforcement of, or otherwise cooperate in the enforcement of a federal ban on firearms, ammunition, or firearm accessories, and shall not participate in any federal enforcement action implementing a federal ban on firearms, ammunition, or firearm accessories.”

SB98 also prohibits the expenditure of any public funds for enforcement of the same.

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

The Commonwealth of Kentucky 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.

WHAT’S NEXT

SB98 was referred to the Senate Committee on Committees, which will refer it to a standing committee for further consideration. Once it gets a committee assignment, it must get a hearing and pass by a majority vote before moving forward in the legislative process. HB153 was referred to the House Committee on Committees.

 

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