Texas’ Firearm Protection Act: Fact and Fiction

The Texas House recently passed multiple gun measures designed to protect Texans from undesired, if not unconstitutional, federal gun laws. Two bills related to federal gun laws, HB 1076 and HB 928, are proceeding and at the time of this writing HB 1076 has passed the final vote in the Texas House, 100-47 and HB 928 has passed as well, 102-31. The bills seek to deny state and local resources for enforcement of federal gun laws and in support of this deny funding to state and local officials that do enforce federal gun laws.

Unfortunately, there is a wealth of misinformation published that obscures the legitimacy of this legislation. For instance, the  Dallas Morning News makes numerous claims inconsistent with facts.

Key statements made in this article are incorrect and mislead the reader regarding the content and legitimacy of the bill’s language. Starting in the third paragraph, Ms. Hoppe begins her summary of a “proposal to nullify new federal gun control laws.”. This is in regards to Steve Toth’s HB 1076.

Ms. Hoppe states: “Those gun laws not already on the books in Texas couldn’t be enforced here under the sweeping and unadjudicated argument that they wouldn’t be constitutional under the Second Amendment.”

It is true that the legislation would reject local enforcement of federal laws. That is the point of the legislation in general. In contrast to the implication, it is very workable in practice as state laws would be put in place as needed. This allows the Texas legislature to draft gun laws that are consistent with the Texas Constitution.

However, Ms. Hoppe’s claim that the legislation challenges the constitutionality of any federal law is false. No such argument is being made regarding the Second Amendment. In HB 1076, Texas is merely refusing to participate in the local enforcement of federal gun laws. In fact, the constitutionality of the gun laws is neither challenged nor validated. They simply deny resources and manpower to enforcement. The Constitutionality of this bill from the federal perspective is clear.  In Printz v. U.S., a 1997 Supreme Court case, Scalia rejected federal comandeering of state and local officers regardless of the constitutionality of the federal law. In other words, the federal government cannot, in any case, force states to uphold federal laws.

Ms. Hoppe states: “And for those cities or counties that tried to enforce a new federal gun law, their entities would lose any state grant money.”

True.

Next, Ms. Hoppe states: “Supporters of the bill said they worked with the attorney general’s office in shaping the so-called Firearms Protection Act. But other lawmakers — all of them Democrats — said the bill ignored the constitution, especially the supremacy clause that establishes federal laws override state ones.”

The supremacy clause is irrelevant in this case since there is no challenge to any specific federal gun laws. It’s just not part of the bill. However, it is worth pointing out the the suggestion made here, that federal law always trumps state law, is false as well. The supremacy clause is a not a blank check on power, it only applies to laws made in pursuance of the enumerated powers of the Constitution.  Texas State Representative James White posted this to Facebook regarding the general misinterpretation of the Supremacy Clause:

“The supremacy clause grants the national government supremacy in all actions as it relates to powers granted to the national government in the Constitution. The Constitution does not, and never has meant to provide the national government a sort of trump card on all actions. Otherwise, there would be no reason for a Constitution, the 10th Amendment or state governments, in particular.”

Ms. Hoppe writes: “Rep. Chris Turner, D-Arlington, said Toth and others were going to make taxpayers foot the bill for a rant – a political statement against Washington.”

This is a claim that the passage of the bill would have no real effect in practice. There are a number of positive effects that this bill could offer to protect gun rights in Texas. A few to consider:

1. This legislation sends a clear message that the Texas government will not participate in the infringement on individual gun rights regardless of federal positioning
2. Encourages Texans to say “no” to egregious federal gun laws through state-level non-enforcement
3. The elimination of state support for federal laws creates a significant manpower problem since it is impractical for federal agents to enforce in practice
4. It protects state and local law enforcement officers. Bad federal gun laws place LEOs in an unenviable position where they must choose between enforcing unconstitutional gun laws and upholding their oath to the constitution by refusing to enforce such laws. A state laws eliminates this dilemma.
5. It protects Texas citizens from future gun laws that might challenge the foundation of the second amendment itself. The daily demonization of firearms by the mainstream press and political posturing of the current administration introduces a high level of uncertainty when it comes to possible new federal mandates may be presented as law. Through legislation such as HB 1076 and HB 928, Texas provides a buffer between federal law and local enforcement that could provide a first tier rejection of heinous gun control measures such as registration (disguised as universal background checks) or confiscation.

The proposal discussed in this article is identified as Steve Toth’s HB 1076.  HB 1076 applies to federal gun laws enacted after January 1, 2013. Matthew Krause’s HB 928 another bill of the same concept but it applies to all federal gun laws. Due to the broader application, HB 928 is preferred.

HB 1076: http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/HB01076I.htm

HB 928: http://www.capitol.state.tx.us/tlodocs/83R/billtext/html/HB00928I.htm