New Hampshire Bill Would Take on Federal Gun Control; Past, Present, and Future

CONCORD, N.H. (Jan. 15, 2023) – A bill introduced in the New Hampshire House would end state enforcement of a wide range of federal gun control measures; past, present and future. The passage of this bill would take an important step toward nullifying federal acts in practice and effect that infringe on the right to keep and bear arms within the state.

Rep. Tom Mannion (R) introduced House Bill 474 (HB474) on Jan. 11. Titled “Protection of Natural Right to Property and Self-defense,” the legislation would ban any entity or person, including any public officer or employee of the state and its political subdivisions, from enforcing any past, present or future federal acts, laws, executive orders, administrative orders, court orders, rules, regulations, statutes, or ordinances that infringe on the right to keep and bear arms.

The bill is similar to the Missouri Second Amendment Protection Act (SAPA) enacted in 2021.

Mannion said he was building on the momentum created by a bill passed last year that took a small step toward banning state and local enforcement of federal control. Mannion called that bill a “foot-in-the-door” and said he was “adding teeth to this law.”

DETAILS OF THE LEGISLATION

The bill includes a detailed definition of actions that qualify as “infringement,” including:

• Any tax, levy, fee, or stamp imposed on firearms, firearm accessories, or ammunition not common to all other goods and services.
• Any registering or tracking of firearms, firearm accessories, or ammunition.
• Any registration or tracking of the owners of firearms, firearm accessories, or ammunition.
• Any act forbidding the possession, ownership, 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 “a person 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 some provisions of the National Firearms Act of 1934, the Gun Control Act of 1968, President Trump’s bump-stock ban, 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.

Federal agents who knowingly try to enforce a law defined as an infringement would be permanently ineligible to serve as law enforcement officers or to supervise law enforcement officers for the state or any political subdivision of the state.

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 state of New Hampshire 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

HB474 was referred to the House Criminal Justice and Public Safety Committee. An ought-to-pass recommendation would greatly increase the bill’s chance of passage in the full House.