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With President Joe Biden issuing a flurry of executive actions last week to strengthen federal gun laws, state representatives across the country are working in the opposite direction, taking a page from the playbook of immigration activists by advancing legislation that would make their enforcement illegal. On April 6, Arizona Governor Doug Ducey, a Republican, signed the first gun control nullification bill into law.
"Nullifying unconstitutional, federal laws is both legal & it's also the right thing to do," says Anthony Sabatini, a Republican lawmaker & member of the Florida House of Representatives. "It's silly to sit around & wait for something you know is unconstitutional," he tells Reason. "It's time to stand up & fight back. And the methods that we need to use are the ones already being used by the left."
In 1987, Oregon passed a law prohibiting state & local law enforcement from using public resources to arrest or detain people whose only crime was being in the country illegally. Since then, hundreds of other jurisdictions have passed similar laws, becoming so-called sanctuary cities.
Conservative activists are employing the same strategy. While Arizona is the only state where such a bill has become law, elected officials have introduced similar bills in more than a dozen statehouses. Montana's legislature has approved a bill that is now awaiting signature or veto from the governor; the Arkansas Senate & the Missouri, South Carolina, & West Virginia houses have each passed such bills; committees in Texas, Alabama, & New Hampshire have bills that are moving forward in their state legislatures; & similar bills have been introduced in Florida, North Carolina, Georgia, Minnesota, Ohio, Nebraska, Iowa, & Louisiana.
"We know this stuff has been working & the right can continue to complain about the things that the left is successful at, or they can look at it, learn from it, & replicate it," Michael Boldin, the founder & executive director of the Tenth Amendment Center, tells Reason.
Sabatini is cosponsoring a bill in Florida called the "Second Amendment Preservation Act" that would prohibit any employee of the state of Florida from enforcing, or attempting to enforce "any federal act, law, executive order, administrative order, court order, rule, regulation, statute, or ordinance infringing on the right to keep & bear arms ensured by the Second Amendment." The bill says that any state employee who assists in enforcing federal gun control laws would be terminated & never again be allowed to work for the state of Florida.
Defying federal law is something that a majority of states already do in one way or another, by becoming immigration sanctuaries or through the legalization & decriminalization of marijuana & other drugs that federal law still deems illegal.
"In terms of the method it's identical," says Sabatini. In sanctuary cities, "they stopped reporting to or dealing with I.C.E., & that's basically what we're doing."
Boldin says that if states refuse to cooperate with the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), then federal gun control becomes difficult to enforce.
"The ATF only has about 5,500 employees for the whole country. About a third of them are in administration, & that means they don't have the manpower or resources to enforce federal gun control on their own," he says. "Their maximum capacity, year in & year out, is between 8,000 to 10,000 closed cases. So if you get a combination of more than 10,000 people violating a federal act, & then on top of it, you have states & local communities refusing to participate in enforcement. You've then opened the door to actually nullify that federal act in practice & effect."
Boldin says that the legal case for nullification doesn't depend on the constitutionality of the law a state wants to nullify thanks to a legal doctrine known as anti-commandeering, which has been upheld in five Supreme Court cases from 1842 to 2018. It holds that the federal government can't require states & localities to participate in the enforcement of federal laws.
"Talking about constitutionality actually does kind of get in the way of anti-commandeering," Boldin notes. "A lot of people like that as a line in the sand. And I think that's a good approach, but I don't think they should be helping enforce federal gun control. Even if a federal court says this federal gun measure is 'constitutional.'"
In March 2018, when the Trump administration was fighting with local officials over the enforcement of federal immigration laws, John Bolton, who would be appointed by then–President Donald Trump as national security adviser the following month, challenged the concept of nullification in an interview with Breitbart News Daily................
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