By: Michael Boldin
MONTGOMERY, Ala. (Feb. 5, 2020) – A bill filed in the Alabama House would prohibit state enforcement of any federal “red-flag” laws, setting the foundation to nullify any such measures in practice and effect.
Rep. Andrew Sorrell (R-Muscle Shoals) filed House Bill 123 (HB123) on Feb 4. The legislation declares that federal red-flag laws or “extreme risk protection orders” are “void and of no effect” in the state of Alabama.
Such a declaration would have little effect in practice, but the bill also includes provisions that would make federal red-flag laws nearly impossible to enforce in Alabama. The proposed law would prohibit any agency or any political subdivision of the state from accepting any federal grants to implement any federal statute, rule or executive order, federal or state judicial order or judicial findings that would have the effect of forcing an extreme risk protection order against or upon a citizen of Alabama.
It would also make it a Class D felony offense for any individual, including a law enforcement officer, to enforce a federal extreme risk protection order. In effect, this would bar state and local police from enforcing a federal red-flag law, rule, regulation or other measure.
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and other acts. By simply withdrawing this necessary cooperation, states and localities can nullify most federal programs in practice and 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.”
Partnerships don’t work too well when half the team quits. Enforcing a red-flag law would be no different.
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 refusing to cooperate with federal gun control would make federal gun laws “nearly impossible” to enforce.
By withdrawing all resources and participation in the implementation and enforcement of a federal red flag law, states and even local governments can help bring any such unconstitutional acts to their much-needed end.
The state of Alabama can legally bar state agents from enforcing federal gun control, including red flag laws. 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”
HB123 has been referred to the House Judiciary Committee, where it will need to pass by a majority vote before moving forward. Alabama residents who support the bill should contact ALL the members of the committee. Be courteous, but firm and professional. Let each of them know you support HB123 and would like to see them vote YES on the bill as well. Find their contact info at this link.