The Feds Can't Compel States to Enforce Restrictions on Guns or Immigrants

The anti-commandeering principle serves causes favored by both the right and the left.


When state and local officials decline to help enforce federal firearm rules they view as unconstitutional, The New York Times says, they are adopting "a legally shaky but politically potent strategy" with racist roots. But when state and local officials decline to help enforce federal immigration rules they view as "unjust, self-defeating and harmful to public safety," the Times says, they should be "proud" of "choos[ing] not to participate in deportation crackdowns."

That blatant double standard illustrates how policy preferences and partisan allegiances color people's views of federalism, which they tend to endorse when it serves their purposes and reject when it doesn't. But as Missouri Gov. Mike Parson and Attorney General Eric Schmitt recently observed while defending that state's Second Amendment Preservation Act, "you cannot have it both ways."

Missouri's law, which Parson signed last week, is part of a broader movement to resist federal gun control. It declares that some federal firearm policies—including bans, registration requirements, and taxes that have "a chilling effect" on purchases—"shall be considered infringements on the people's right to keep and bear arms," which is guaranteed by the Second Amendment and the state constitution.

The law says such rules "shall be invalid to this state, shall not be recognized by this state, shall be specifically rejected by this state, and shall not be enforced by this state." It authorizes injunctions against law enforcement agencies that violate this new policy, along with civil penalties of $50,000 "per occurrence."

In response to anxious questions from the U.S. Justice Department, Parson and Schmitt said the law's restrictions and remedies apply only to state and local officials. That means they do not interfere with federal enforcement of federal laws—the same point the Times made in defense of "sanctuary" cities and states.

The immediate impact of this law—which is similar in spirit to laws passed by 11 other states this year, although their details and practical significance vary widely—is likely to be minor. The restrictions do not apply to federal firearm offenses that are also crimes under Missouri law, and currently there is not much difference between those categories.

The main point of the law, according to its sponsors, is proactive. Should Congress pass the gun controls that President Joe Biden favors, such as a ban on the manufacture and unregistered possession of "assault weapons," Missouri officials will be prohibited from assisting in their enforcement.

Contrary to what the Times reported, that policy is not "legally shaky." It relies on the well-established anti-commandeering doctrine, which says the federal government cannot compel state and local officials to enforce its criminal laws or regulatory schemes.

That doctrine is rooted in the basic design of our government, which limits Congress to a short list of specifically enumerated powers and leaves the rest to the states or the people, as the 10th Amendment makes clear. That division of powers gives states wide discretion to experiment with different policies, some of which are bound to offend the Times.

The paper suggests that defending state autonomy is disreputable, because that argument was "deployed in the past in the South to resist antislavery and civil rights laws." But federalism does not give states a license to violate rights guaranteed by the Constitution or to flout laws authorized by it.

Although the Times tries to tar the anti-commandeering principle as racist, the same basic idea was a crucial weapon for Northern states that refused to help the federal government enforce the Fugitive Slave Act. Today that principle likewise means that state and local officials have no obligation to participate in the "deportation crackdowns" that the Times decries.

Similarly, the ongoing collapse of marijuana prohibition—a development the Times welcomes—would be impossible if states were obligated to participate in the federal war on weed. While both progressives and conservatives might wish that federalism could be limited to achieving results they like, that is not how constitutional principles work.

© Copyright 2021 by Creators Syndicate Inc.