Alabama Senate Passes Bill to Ban State Enforcement of Biden Gun Control Executive Orders

MONTGOMERY, Ala. (April 1, 2022) – Yesterday, the Alabama Senate passed a bill that would prohibit state and local enforcement of federal gun control by executive order implemented while Pres. Joe Biden is in office. The enactment of this legislation would take a small step toward ending some federal acts that infringe on the right to keep and bear arms within the state.

Sen. Gerald Allen introduced Senate Bill 2 (SB2) on Jan. 11. As introduced and passed by the Senate Judiciary Committee, the legislation would have broadly banned state and local agents from enforcing federal gun control past, present, and future. As amended and passed by the Senate, the bill would prohibit a state actor from “knowingly and willingly” participating in the administration or enforcement of any presidential executive order effective between January 20, 2021, and January 19, 2025, that limits or restricts the ownership, use, or possession of firearms, ammunition, or firearm accessories by law-abiding residents of the state. It also bans the allocation of state funds for the enforcement of the same.

In effect, it would ban state enforcement of executive orders issued during President Joe Biden’s first term.

SB2 creates an exception to the prohibition allowing state enforcement of presidential gun control orders if “the Finance Director certifies in writing that the allocation or participation is required as a condition for receipt of federal funding necessary for the welfare of Alabamians.”

The proposed law would ban enforcement of two ATF regulations from executive orders issued by Joe Biden to criminalize “pistol braces” and to require registration of popular “80 percent lowers”  — homemade firearms. It would also bar state and local enforcement of any other future gun control schemes implemented by executive order during Biden’s first term.

The Senate passed SB2 by a 24-5 vote.

A DANGEROUS ASSUMPTION

Limiting the bill to executive orders issued by Joe Biden makes a dangerous assumption — that future presidents won’t implement unconstitutional gun control. In fact, any gun control order issued by any president is unconstitutional and should not be enforced by the state. The Second Amendment notwithstanding, presidents don’t have any constitutional power to legislate by executive fiat.

There also seems to be an assumption that a future Republican won’t implement gun control by EO. This is demonstrably false given Donald Trump’s executive order banning bump stocks.

It’s hard to understand why the Alabama Senate passed such a limited prohibition on enforcement if it is really concerned about protecting the right to keep and bear arms.

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.

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 Montgomery Advisor reported that Democrats oppose the measure saying supporters have “no conception of the supremacy clause in the U.S. Constitution, making federal laws superior to state laws.”

“You all know what the Supremacy Clause says, you learned it in law school,” Sen. Rodger Smitherman, D-Birmingham said. “You and I know there is nothing we can say or do in this state that’s going to supersede whatever the federal government does.”

Smitherman’s convoluted understanding of the supremacy clause notwithstanding, SB2 doesn’t even call it into play.

The state of Alabama 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

SB2 will move to the House for further consideration. At the time of this report, it had not been referred to a House committee. Once it receives a committee assignment, it must pass by a majority vote before moving forward in the legislative process.

The post Alabama Senate Passes Bill to Ban State Enforcement of Biden Gun Control Executive Orders first appeared on Tenth Amendment Center.