Can Pro-Gun Legislators Make It a Crime to Enforce the Law?

By Andrew Cohen

Anticipating new federal rules, lawmakers in 16 states are finding ways to block their implementation.

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Nick Adams/Reuters

While White House officials and federal lawmakers have scrambled in the past month to introduce legislation designed to restrict certain kinds of weapons or ammunition, or to limit the broad immunity the gun industry was given during the Bush Administration, lawmakers in nearly a third of the states of the union have taken their own aggressive approach to the problem of gun violence. They have introduced proposed measures that seek either to nullify federal gun laws, or to criminalize the conduct of public officials -- including, in some cases, judges and jurors -- who would be required to enforce them.

William Raftery, who helps coordinate the Gavel to Gavel site at the National Center for State Courts, has compiled the list. Its breadth is truly astonishing. By my count, in just the past few weeks, elected officials in 16 states have introduced 24 measures that would create new conflicts between state and federal authority. We saw similar efforts in 2011 and 2012, when radical conservative lawmakers sought to try to nullify the Affordable Care Act before the Supreme Court had even ruled on its constitutionality. Now, many of the same lawmakers aren't even waiting for Congress to pass a law they pledge to disobey.

The new crop of unconstitutional, unenforceable legislation stretches from the Arctic Circle (Alaska) to the Gulfstream waters (Mississippi), from the Pacific (Washington) to the Atlantic (Virginia), and from the Rio Grande (Texas) to the Mississippi (Missouri). First on Raftery's list is Alaska. There, HB 69 has garnered 18 co-sponsors. It reads:="#actions">

An Act exempting certain firearms and firearm accessories in this state from federal regulation; providing criminal penalties for federal officials who enforce or attempt to enforce a federal law, regulation, rule, or order regulating certain firearms and firearm accessories in this state; and providing for an effective date.

A little further south, elected officials in Wyoming have quickly come up with what they call the Firearm Protection Act. Under its terms, if you are an FBI agent, and you try to enforce a federal gun law, Wyoming will consider you to have committed a felony for doing so, one punishable by no less than one year in prison. Presumably, the person who has violated the federal gun law, the person against whom the FBI agent was enforcing existing federal law, would receive no sanction. Here's subsection (b) (emphasis in original):

(b) Any official, agent or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule or regulation of the United States government upon a personal firearm, a firearm accessory or ammunition that is owned or manufactured commercially or privately in Wyoming and that remains exclusively within the borders of Wyoming shall be guilty of a misdemeanor felony and, upon conviction, shall be subject to imprisonment for not more less than one (1) year and one (1) day or more than five (5) years, a fine of not more than two thousand dollars ($2,000.00) five thousand dollars ($5,000.00), or both.

Washington state, a reliably blue state, saw Wyoming's penalties for federal officials who try to enforce a duly-enacted law of Congress -- and raised them. If HB 1371 were to pass in Olympia, not only would that same FBI agent be subject to a prison term and a $10,000 fine but the Washington resident who violated federal gun laws could have an unusual ally in court -- the attorney general of the state of Washington. Here's the text of the relevant subsections:

2) Any official, agent, or employee of the United States government who enforces or attempts to enforce any act, order, law, statute, rule, or regulation of the United States government upon a personal firearm, firearm accessory, or ammunition that is owned or manufactured commercially or privately in Washington and that remains exclusively within the borders of Washington shall be guilty of a felony and, upon conviction, shall be subject to imprisonment for not less than three hundred sixty-five days or more than five years, a fine of not more than ten thousand dollars, or both.

(3) The attorney general may defend a citizen of Washington who is prosecuted by the United States government for violation of a federal law relating to the manufacture, sale, transfer, or possession of a firearm, firearm accessory, or ammunition owned or manufactured and retained exclusively within the borders of Washington.

In Pennsylvania, Darryl Metcalfe, the same state representative who disgraced himself last year by calling elderly and infirm voters "lazy" because they could not easily get the state's new voter identification card, is back with a measure that puts both the Wyoming and Washington legislation to shame. If his HB 357 becomes law, the attorney general of Pennsylvania would be required both to defend a state resident charged with a violation of federal law and to prosecute federal law enforcement officials for charging him. Here's the text:

A Federal law, rule, regulation or order created or taking effect after December 31, 2012, shall be unenforceable within the borders of this Commonwealth if the law, rule, regulation or order attempts to register, restrict or ban the ownership or purchase of a firearm, magazine of a firearm, firearm accessory or ammunition.

(b) Federal agent. -- An official, agent or employee of the Federal Government, Commonwealth or political subdivision who enforces or attempts to enforce a Federal law under subsection (a) commits a felony of the third degree and, upon conviction, shall be subject to imprisonment for not less than one year or more than seven years, a fine of not more than $15,000, or both. The Attorney General shall prosecute violations of this section.

Section 4. Duty of Attorney General. The Attorney General shall defend a resident of this Commonwealth who is prosecuted by the Federal Government for a violation of Federal law under section 3(a) that attempts to register, restrict or ban the ownership or purchase of a firearm, magazine of a firearm, firearm accessory or ammunition that is retained in this Commonwealth.

In some instances, the new measures are designed to preempt a subsequent Commerce Clause argument by indicating that the gun trade is "intrastate" in nature. In some instances, both federal and state officials are implicated by the new prohibitions against enforcement. But the premise is all the same: these state laws would criminalize law enforcement activity while protecting criminal suspects from the enforcement of federal gun laws. 

Do a majority of Americans believe that this Quinella is going to save more of our children from gun violence? Of course not. But that's not the point. The point here is to show the gun lobby, and its most ardent supporters, that even if Congress may be a bit wobbly on gun rights there is still great fealty at the state level. 

For a guy like Representative Metcalfe, who ran unopposed in a gerrymandered district, there is no political downside to suggesting to his constituents that FBI agents should serve seven years in prison for taking a gun away from someone who by law shouldn't have one. No one punishes these legislators for their symbolic legislation, which wastes so much time and money. And when the courts throw out these laws as blatantly invalid, these politicians just blame "activist" judges.

These strange brews all come from the same ingredients. A dash of the 10th Amendment, with its nod to state sovereignty. A pinch of the 9th Amendment (notice the ad on the link), with its nod to the idea that people have inherent gun rights beyond the 2nd Amendment. A big pinch of the 2nd Amendment, of course -- and all of it sprinkled with the same disdain for the current president which kept the "birthers" in business for years. 

That none of these measures will ever become enforceable law is also beside the point. The point here is that the radicals in these state houses make the radicals in Congress look positively sane.

This article available online at:

http://www.theatlantic.com/national/archive/2013/01/can-pro-gun-legislators-make-it-a-crime-to-enforce-the-law/272606/