In the current political climate, it’s difficult to pass new federal gun control through Congress. But that hasn’t stopped the last two presidents from implementing new rules on firearms via executive fiat. Trump banned bump stocks with an executive order. Now, in response to an Executive Order by Joe Biden, two new ATF regulations set to go into effect this summer will impose even more unconstitutional federal gun control.
The first would require registration of “80 percent lowers.” These are basically unfinished firearm parts that you can use to build your own gun. Because 80 percent lowers fall outside of the FFL process, they effectively allow the private manufacture of unregistered rifles. Some people refer to them as “ghost guns.”
This new ATF regulation is expected to be finalized in June.
The second set to go into effect in August will place regulations on “pistol braces.” This device serves as a stabilizer that enables a shooter to fire with one hand. Pistol braces are popular with disabled people who can’t use both arms. But the feds claim they are a dangerous firearm accessory.
Under the regulation, pistol braces will fall under the National Firearms Act. This is the same law used to regulate machine guns, silencers, and barreled rifles. The EO won’t ban pistol braces, but it will require anybody that has one to register it with the feds. This will come with a $200 tax, and it can take up to one year to complete the registration. In effect, it registers the gun with the federal government.
According to an op-ed by attorney John Werden, upwards of 40 million Americans own pistol braces. There is no grandfather clause under the order. In other words, when the regulatilon goes into effect, all of those people will become felons if they don’t go through with the registration process.
The federal government lacks the constitutional authority to regulate pistol braces or 80 percent lowers. There is no delegated power for registering firearms accessories or parts, and the Second Amendment slams the door on such federal action completely.
Even if you could strain this kind of regulatory power out of the Constitution, it would have to come from Congress. The president was never intended to be a lawmaker. These executive orders are unconstitutional.
It is clear constitutional scruples won’t stop this federal gun control – or any federal gun control that might come down the pike in the future. But state action can stop it dead in its tracks.
States can nullify these federal rules in practice and effect simply by refusing to participate in their enforcement and implementation. A piece of legislation known as the Second Amendment Preservation Act does just that.
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.”
An Article by The Trace has already questioned the ATF’s ability to enforce the pistol brace order. According to the report, “Biden’s pistol brace rule would put pressure on an already strained ATF division.”
“The plan put forward by the administration this summer will hinge on the efficiency of an obscure division at the Bureau of Alcohol, Tobacco, Firearms and Explosives that routinely misses its own performance benchmarks. And now, with millions of stabilizing braces estimated to be in circulation, some outside observers are warning the efforts to restrict them could flounder if federal regulators are unable to handle the workload.”
The feds are going to need state and local cooperation.
It should be denied.
States can legally bar their 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.
The battle against federal gun control won’t be won by begging your Congressman to protect the Second Amendment. It won’t be won suing in federal court. It can be won by following Madison’s blueprint – refuse to cooperate with federal gun control.