On Feb. 8, Montana Governor Greg Gianforte sent a letter to U.S. Attorney General Merrick Garland informing him the state will not enforce the recent ATF rule on pistol braces based on a state law prohibiting enforcement of some federal gun control that was passed in 2021.
Pistol braces serve as stabilizers that enable a shooter to fire with one hand. On Jan 13, the ATF issued a rule authorized by an unconstitutional executive order requiring potentially any gun equipped with a pistol brace to be registered with the feds.
According to the ATF rule, guns with pistol braces are now subject to a new “factoring criteria” point system, which will be used to determine if the firearm and pistol brace combination are now categorized as “short-barreled rifles” under the National Firearms Act. This is the same law used to regulate machine guns and sound suppressors. The rule doesn’t ban pistol braces, but it requires anybody that has a gun equipped with one to register the firearm with the feds if it goes beyond a certain threshold in the point system. If they don’t register it, the must destroy it. The registration process will come with a tax, and if history provides any indication it could take up to a year to complete the registration process.
Additionally, the ATF still claims the authority to classify a firearm and accessory as a short-barreled rifle under the NFA even if it does not cross the threshold of their point system.
In 2021, Montana passed a law prohibiting police officers, state employees, and employees of any political subdivision of the state from enforcing, assisting in the enforcement of, or otherwise cooperating in the enforcement of any new “federal ban” on firearms, magazines, or ammunition. A “federal ban” is defined as any federal law, executive order, rule, or regulation that was enacted after Jan. 1, 2021, “that infringes upon, calls in question, or prohibits, restricts, or requires individual licensure for or registration of the purchase, ownership, possession, transfer, or use of any firearm, any magazine or other ammunition feeding device, or other firearm accessory.”
The pistol brace registration rule clearly falls under the law’s definition of a “federal ban.”
Gov. Gianforte’s letter informs the U.S. attorney general that, “As a matter of law, the State of Montana and its political subdivisions cannot enforce, or assist the ATF with enforcement, of this rule.”
Our right to keep and bear arms is integral to Montana’s and our nation’s rich heritage. That’s why we prohibited the enforcement of federal gun bans in Montana, like @ATFHQ‘s pistol brace rule. pic.twitter.com/Hq34yU16PZ
— Governor Greg Gianforte (@GovGianforte) February 9, 2023
Gianforte also writes that the pistol brace rule “further erodes the Second Amendment rights of law-abiding Montanans.”
“Our right to keep and bear arms is integral to Montana’s and our nation’s rich heritage, and this rule directly violates our long-held traditions. The rule also ignores the design and intent of stabilizing braces – to help disabled veterans fire large format pistols.”
Gary Marbut of the Montana Shooting Sports Association and many others worked tirelessly for years to get this first-step ban against federal gun control passed in 2021.
Three other states – Missouri, Arizona and Idaho – also have laws on the books that prohibit state or local enforcement of specific federal gun control, including this pistol brace registration scheme.
EFFECTIVE
The federal government relies heavily on state cooperation to implement and enforce almost all of its laws, regulations and acts – including gun control. By simply withdrawing this necessary cooperation, states and localities can nullify many federal actions in 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.”
With just a few thousand enforcement agents, the ATF doesn’t have the personnel or resources to enforce its gun control regulations without massive support from the states. That means every time a state refuses to cooperate with the enforcement of federal gun control – including this new rule – it sets the foundation for the people to nullify those acts in practice and effect.
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 taking this step would make federal gun laws “nearly impossible” to enforce.
“Partnerships don’t work too well when half the team quits,” said Michael Boldin of the Tenth Amendment Center. “By withdrawing all resources and participation in federal gun control, states and even local governments can help bring these unconstitutional acts to their much-needed end.”
LEGAL BASIS
States can legally bar their employees and agents from enforcing federal gun control. They can also prohibit the use of state resources for the same. 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”
No determination of constitutionality is necessary to invoke the anti-commandeering doctrine. State and local governments can refuse to enforce federal laws or implement federal programs whether they are constitutional or not.
Mike Maharrey | The Tenth Amendment Center
