Protection Against Federal Infringements

General Discussion

It’s no secret that the Federal government has been steadily eroding our ability to legally keep and bear arms through Congressional legislation, agency regulation, and executive overreach. Although Gun Owners of America fights back hard against these infringements and works to restore our liberties at the Federal level, GOA also supports states taking measures to push back against Federal infringement.

We acknowledge that many of these measures may face legal challenges, and we recognize that part of our battle for our rights must be fought in the courts. Our legal arm, Gun Owners Foundation, has supported litigation to protect our constitutional right to keep and bear arms for decades and will continue to do so.

Even with a favorable judicial decision, none of these laws can be counted on to fully protect our rights. Ultimately, no words on paper can give such protection. The Second Amendment itself states that “the right of the people to keep and bear arms shall not be infringed,” and yet that right still has been infringed throughout the history of our country.

Most Texas bills state that Texas will not participate in or enforce a particular category of Federal laws or rules, enacted within a certain timeframe and/or applying to a certain subject matter. Some legislation from other states allow state leadership to decide what constitutes an infringement. No bills give an individual gun owner executive power to declare that he is not legally obligated to follow a particular regulation.

So, it should be clear that the success of this type of legislation depends on application and enforcement. The battle for our rights does not end when we pass any of these bills. Still, we believe that these measures are a helpful and beneficial path to protecting our rights, and we strongly support passage of these bills.

How We Talk About This

• With the Federal government declaring war on gun owners, the time for Texas to stand and protect our rights is NOW.
• Even though these bills may be challenged in court, the Texas legislature, as a co-equal branch of government, must demonstrate its resolve to protect the constitutional rights of all Texans from federal infringement.
• The Interstate Commerce Clause of the Constitution– the clause that Congress uses to regulate virtually anything, including guns, on the basis that they affect interstate commerce – has been read too broadly for far too long. It’s time to turn the tide and push back on Congress’ attempts to regulate everything.
• In the 1997 case of Printz v. United States, the Supreme Court held that the Federal government could not compel states to enforce their laws for them. They could give a carrot or stick but couldn’t force states to enforce federal laws.

Second Amendment Sanctuary Legislation

These bills prohibit Texas from using its personnel or resources to enforce Federal gun-grab regulations.

SUPPORT: HB 112 by Rep. Toth & SB 513 by Sen. Hall would prohibit state & local government entities from enforcing or adopting a policy allowing the enforcement of any Federal statute, rule, order, or regulation enacted on or after January 1, 2021 that regulates a firearm, accessory, or ammunition and does not exist in Texas law.

• The bill would apply to any agency, department, commission, bureau, board, office, council, court, or other entity that is in any branch of state government and that is created by the Constitution or a statute of this state, including a university system or a system of higher education; the governing body of a municipality, county, or special district or authority; an officer, employee, or other body that is part of a municipality, county, or special district or authority, including a sheriff, municipal police department, municipal attorney, or county attorney; and a district attorneys or criminal district attorney.
• Any department or agency that violates this provision shall not receive state grant funds.
• Texans could petition the Attorney General to force the department or agency to stop.
• Individual officers or other personnel could face a Class A Misdemeanor for violation.

 

SUPPORT: HB 635 by Rep. Krause & SB 541 by Sen. Springer would prohibit state & local agencies and law enforcement from assisting Federal agencies or officials in enforcing any Federal statute, order, rule, or regulation on firearms, accessories, or ammunition that does not also exist in Texas law.

• Any department or agency that violates this provision shall not receive state grant funds.
• Texans could petition the Attorney General to force the department or agency to stop.
• If the Federal government sued any state or local agency because it complied with this law, the Attorney General would be required to defend that agency.
• SB 541 applies only to laws & regulations enacted on or after January 19, 2021.
• HB 635 applies to all laws & regulations, past and present, except state agreements to help Federal agents enforce border security laws or regulations that are in effect on August 31, 2021.

SUPPORT: HB 919 by Rep. Leman & SB 499 by Sen. Kolkhorst are nearly identical to HB 112 by Rep. Toth, above, except that they:

• Apply to statutes, rules, orders, or regulations enacted after September 1, 2021
• Do not include a Class A Misdemeanor penalty for personnel who violate the law

“Made in Texas” Legislation

SUPPORT: HB 915 by Rep. Krause & SB 542 by Sen. Springer would declare that firearms and ammunition manufactured in Texas from Texas parts, and sold in Texas, are not subject to Federal regulations. A person who wishes to manufacture “Made in Texas” items can let the Texas Attorney General know his or her intentions, and then the AG must seek a declaratory judgment on the Constitutionality of this law.

• Because we are in Texas, the Fifth Circuit Court of Appeals would hear an appeal on the declaratory judgment, and then the parties could ask the United States Supreme Court to hear a further appeal.
• The Fifth Circuit has not yet issued a ruling on a case like this. Other cases have come through the more liberal Ninth and Tenth circuit courts, which have repeatedly failed to uphold 2nd Amendment rights.
• The last time the Supreme Court had the opportunity to hear a similar case, it refused to hear the case – as it has with many Second Amendment cases. However, the Supreme Court makeup has changed since that time and now includes additional justices who are more likely to uphold gun rights and general liberties.
• This bill is distinct from laws in other states (g., Kansas, Montana) because it gives a way for someone to secure a court judgment that upholds this law before the person manufactures such items.

Anti-Red Flag Law Legislation

SUPPORT: HB 336 by Rep. Cain & SB 548 by Sen. Springer would keep Texas out of any Federal Red Flag scheme and would prohibit any entity in this state from enforcing a “Red Flag” gun confiscation law not enacted by our state legislature.

• It says that state and municipal agencies, commissions, and entities may not implement orders that prohibit possession of firearms based on something other than someone’s criminal conduct.
• It nullifies any Federal law or regulation to implement a red flag law that violates due process, right to keep and bear arms, or free speech.
• It prohibits Texas from accepting any Federal grant money intended to incentivize such implementation.
• Note that no legislature can prohibit a subsequent legislature from passing a piece of legislation. So, the Texas Legislature cannot pass a bill prohibiting the Texas Legislature from ever passing a “red flag” law. However, we can prohibit local entities from trying to implement it on their own, and we can keep Texas out of a “red flag” law passed by Congress.

See our updated bill list at txgoa.us/87r.