CHARLESTON, W.Va. (Jan. 16, 2018) – A bill introduced in the West Virginia House would prohibit enforcement of any current or future federal, state or local gun control laws. Passage of the bill would make West Virginia the freest gun state in the country and would effectively nullify all federal gun control.
Del. Pat McGeehan (R – Hancock) introduced House Bill 2138 (HB2138) on Jan. 10. The legislation would make all future federal, state and local statutes, ordinances, laws, orders and rules concerning firearms, firearm accessories, ammunition and their accouterments invalid and unenforceable in the state of West Virginia. The bill would make it a felony to attempt to enforce a federal or local statute, ordinance, law, order or rule concerning firearms, firearm accessories, ammunition and their accouterments that violate the state and federal Constitutions. HB2138 broadly defines what violates the state and federal constitutions.
All current and future federal, state, and local statutes, ordinances, laws, orders, rules, and any other actions which attempt to restrict, tax, or regulate the possession, use, discharge in lawful self-defense, transportation, purchase, acquisition, sale, transfer, ownership, carrying, manufacture, or repair of firearms, firearm accessories, ammunition and their accouterments contradict the true meaning and original intent of the Second Amendment to the Constitution of the United States and Section twenty-two, Article III of the Constitution of the State of West Virginia. Those statutes, ordinances, laws, orders and rules which violate the Constitution of the United States and the Constitution of the State of West Virginia are invalid, and therefore, are null and void.
The bill would effectively end enforcement of all gun regulations – both federal and state – and criminalize their enforcement.
HB2138 goes beyond anti-commandeering or “refusal to cooperate with officers of the Union,” as James Madison put it, by offering legal aid to citizens targeted by the feds enforcing unconstitutional gun laws. It would also subject federal agents, as well as state and local agents, attempting to enforce federal gun laws in the state to arrest and prosecution.
As we’ve explained in the past, practically speaking, it would be extremely difficult for the state to prosecute federal agents for enforcing federal law. Under federal statute, any case involving a federal agent acting within the scope of his or her official duties gets removed to federal court. In other words, the current structure of the legal system makes it virtually impossible to prosecute a federal agent in state court. Lawyers for the charged federal agent would immediately make a motion to remove the case to federal district court under 28 U.S.C. § 1442(a)(1). Unless the state judge refused to comply, the case would then be out of state hands.
But even without the threat of prosecuting federal agents, HB2138 would still make it difficult if not impossible for the federal government to enforce its any gun control laws in West Virginia.
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 can nullify in effect many federal actions. As noted by the National Governor’s 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 the states.
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 can help bring these unconstitutional act to their much-needed end.”
Boldin also noted how the same strategy is being used effectively elsewhere. “No one – and I mean no one – is arguing that immigration sanctuary cities aren’t having an effect on federal immigration law. This bill in West Virginia uses the same approach of withdrawing resources and enforcement support, but it takes on federal gun control,” he said. “More conservative states should do the exact same thing.”
Some gun rights supporters argue that such a measure is “unnecessary” because it addresses a nonexistent problem with a Republican Congress and an NRA-backed president.
“While we’re not expecting any new gun control to come from the federal government in the next few years, there’s still a lot of unconstitutional federal gun control measures on the books today,” Boldin said. “Whether it’s the National Firearms Act of 1934 or the Gun Control Act of 1968, plus many others – the states can build a sanctuary for the right to keep and bear arms against the unconstitutional ATF.”
HB2138 has been referred to the House Judiciary Committee, where it will have to pass by a majority before advancing to the full House for a vote.