Texas State Capitol

AUSTIN, November 14, 2014– A Texas legislator has introduced a new bill to derail the enforcement of virtually all federal gun control measures within the state’s borders.

“With this bill, Texas could help lead the country forward,” said Scott Landreth, campaign lead for ShallNot.org, a project of the Tenth Amendment Center that advocates for states to protect their citizens from federal overreach. “Passage would have serious impact on the federal government’s ability to carry out its unconstitutional gun control measures already on the books.”

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Landreth  has suggested that this could create a domino effect.

Introduced by newly re-elected State Representative Tim Kleinschmidt (R-Lexington), House Bill 176 (HB176) declares all federal restrictions on the right to keep and bear arms to be “invalid” and “not enforceable” within the state of Texas. It bill reads, in part:

A federal law, including a statute, an executive, administrative, or court order, or a rule, that infringes on a law-abiding citizen’s right to keep and bear arms under the Second Amendment to the United States Constitution or Section 23, Article I, Texas Constitution, is invalid and not enforceable in this state.

If passed into law, all government agencies and employees within Texas would be banned from enforcing any federal law in violation of the act.  The prohibition on enforcement includes any federal legislation that:

(1) imposes a tax, fee, or stamp on a firearm, firearm accessory, or firearm ammunition that is not common to all other goods and services and may be reasonably expected to create a chilling effect on the purchase or ownership of those items by a law-abiding citizen;

(2) requires the registration or tracking of a firearm, firearm accessory, or firearm ammunition or the owners of those items that may be reasonably expected to create a chilling effect on the purchase or ownership of those items by a law-abiding citizen;

(3) prohibits the possession, ownership, use, or transfer of a firearm, firearm accessory, or firearm ammunition by a law-abiding citizen;

(4) orders the confiscation of a firearm, firearm accessory, or firearm ammunition from a law-abiding citizen.

State employees who knowingly violate the act would risk a suit for damages for assisting the federal government violate an individual’s right to keep and bear arms in Texas. A defense of sovereign immunity would also be prohibited in such a suit.

Kleinschmidt, starting his 4th term in January, has developed a reputation as a strong defender of the Second Amendment. In the 2013 session, he worked to pass legislation that “prohibits public and private colleges and universities from adopting administrative rules banning the possession, transportation and storage of lawfully-owned firearms and ammunition in private motor vehicles by students and visitors with Concealed Handgun Licenses (CHLs).”  He was also heralded by the NRA-ILA for his 2011 employee/parking lot protection bill that was signed into law that year.

Recognizing that the federal government would always require cooperation on a state and local level, James Madison, writing in Federalist #46, advised state “legislative devices” and a “refusal to cooperate with officers of the Union” as a strategy to push back against unconstitutional or merely unpopular federal acts.

Last year, Judge Andrew Napolitano said that if a single state stop participating in the enforcement of federal gun laws, it would make those laws “nearly impossible” to enforce within the state.

“If a few other states follow Kleinschmidt’s lead, it’ll also give Washington D.C. pause before even trying to pass new restrictions on our right to keep and bear arms,” he said.

The approach is on sound legal footing, with notable Supreme Court opinions backing the view that the federal government cannot require a state to expend manpower or resources in the enforcement of a federal act. The 1997 case, Printz v. US serves as the cornerstone.  In it, Justice Scalia held:

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. 

As noted Georgetown Law Constitutional Scholar Randy Barnett has said, “This line of cases is now 20 years old and considered well settled.”

In 2013, similar legislation was passed in Idaho, although not as far-reaching as the bill from Kleinschmidt. Another bill was signed into law in Alaska, but lacked the specifics of which federal acts the law addressed.  And another law was signed in Kansas, but is currently not being enforced due to a court challenge from the Brady Campaign over provisions that include criminal charges for federal agents.

HB176 will first be assigned to a committee, where it will need to pass before a full assembly of the State House can consider it.

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