At least two states are considering legislation that would allow lawmakers to ignore federal laws or judicial rulings they believe violate the Second Amendment right to bear arms.
Utah lawmakers are considering a similar move as early as next year.
A bill introduced by Republicans in Ohio would declare any federal law, executive order, or court ruling to be “null and void” if it infringes on gun rights.
A similar law in Texas declares the state a “Second Amendment sanctuary,” blocking state agencies and local governments from enforcing new federal gun rules.
Rep. Cory Maloy, R-Lehi, tried to pass a law similar to the Texas bill during the 2021 Utah Legislature. He was unsuccessful, but lawmakers will study the issue during summer legislative meetings this year, with an eye on the 2022 legislative session that starts in January.
“I want to see what we can do legally,” Maloy said, “to make it so some of these laws from the federal government are not enforced by the state.”
He explains Utah is already ignoring federal law with the legalization of medical marijuana, so why not federal firearms laws?
“Everything we’re doing with medical marijuana is technically against the law,” he said. “The feds turn a blind eye to that.”
There are 34 states that allow medical use of marijuana and 17 states have legalized recreational use. The U.S. House voted last year to decriminalize marijuana. It’s still illegal to sell and possess marijuana, and users still run the risk of being prosecuted federally.
“A state has no authority to override federal law,” said University of Utah law professor RonNell Andersen Jones. “The Supremacy Clause of the U.S Constitution makes clear that it cannot invalidate federal law with just the passage of its own state law. Federal law prevails when the two conflict.”
Only the courts can invalidate a federal law, but there may be wiggle room for states.
“The state may want to symbolically withhold its support or refuse to be actively helpful to the federal government in its efforts,” she said, “and these symbolic gestures might carry some heft, given the ways the federal government does often rely on local officials for boots-on-the-ground enforcement.”
Gun rights grow
Utah expanded gun rights dramatically during the 2021 session. Gone is the need for a permit to carry a concealed weapon in public. Gov. Spencer Cox signed the bill after it was stymied for nearly a decade by his predecessor. Republicans beat back several attempts at gun control, mostly from Democrats.
They could have gone further.
Maloy originally introduced HB76 to block local governments from enacting firearms regulations that were more restrictive than the state, effectively giving the GOP-dominated Legislature the final say on gun laws in the state. He added a provision that blocked the state from enforcing any new federal gun laws.
Maloy’s bill passed the House on a straight partisan vote but died quietly in the Senate as Republicans there did not bring the issue up for a committee hearing or vote. Privately, several senators felt eliminating permits for concealed weapons was as far as they dare go this year. If they had pushed harder with the attempt to block federal gun laws, the fear was it could lead to a ballot referendum or initiative to block the change.
A recent poll showed a majority of Utah voters support some sort of gun control measure.
Earlier this month, President Joe Biden issued a series of executive orders.
“This is a very urgent issue,” Maloy said. “I worry there’s a whole movement to restrict and control guns and move them from society.”