Tuesday, March 28, 2023

Kentucky Legislature Passes Second Amendment Protection Act

Kentucky Capitol from wikipedia

On March 15, 2023, House Bill 153 was sent to Democrat Kentucky Governor Beshear for his signature or veto. The Governor may ignore the bill as well. House Bill 153 orders state and Kentucky government employees not to cooperate with federal officers in the enforcement of federal firearms statutes, rules, or regulations passed after January 1, 2021.  Such rules are expected to include the new BATFE rules on pistol braces and the new rule on the definition of what is considered a firearm. The bill is only enforceable on Kentucky state employees. It also forbids the expenditure of public funds for the same purposes. From House Bill 153:

 A person commits an offense under this section when, while acting in his or her official capacity under color of law, he or she knowingly violates this section. An offense under this section is a Class B misdemeanor for the first offense and a Class A misdemeanor for each subsequent offense. 

 6) A person who knowingly commits an offense under this section shall be subject to from employment to the extent allowable under state law.

(a) Law enforcement activity related to a federal ban on firearm, ammunition, or firearm accessories; or 

(b)The investigation of a violation of a federal ban on firearm, ammunition, or firearm accessories.

7) Nothing in this section may be interpreted to prohibit or otherwise limit a law enforcement agency, law enforcement officer, employee of a law enforcement agency, public agency, public official, employee of a public agency, or employee of a local government from cooperating, communicating, or collaborating with a federal agency if the primary purpose is not:

(a) Law enforcement activity related to a federal ban on firearm, ammunition, or firearm accessories; or

(b) The investigation of a violation of a federal ban on firearm, ammunition, or firearm accessories.

        (8 )This section shall be retroactive to January 1, 2021.

House Bill 153 was very popular in the House, passing 78 to 19 on February 22. In the Senate, it passed 27 to 9 on March 15, 2023, then was enrolled by the Speaker of the House and the President of the Senate and sent to Governor Beshear on the same day. Three Republicans joined six Democrats to vote against the bill in the Senate.   The bill depends on the long-standing anti-commandeering doctrine of the United States Supreme Court. The federal government may not command states to perform tasks the federal government wants them to do, such as enforcing federal laws.

The Supreme Court ruled, to allow the federal government to do so would violate principle of federalism, where both the federal government and the state governments have sovreignity in their respective areas.  The Supremacy clause of the Constitution does not override this dual sovereignity. If it did, the federal system would collapse into a system where the states had no effective power separate from the federal government.

No determination of constitutionality is necessary to invoke the states' power under the anti-comandeering doctrine. The state has the power, under the Constitution, to use its resources as it sees fit.

The Kentucky law is similar to the Missouri Second Amendment Protection Act (SAPA) but differs in important details. The Missouri act was recently struck down by federal district court judge Brian Wimes. The decision is being appealed.

Democrat Governor Beshear has 10 days, excluding Sundays, to act on a bill once it is received. If the governor vetos the bill, the legislature may override the veto with a majority vote in both houses.  Governor Beshear won the governorship by a razor thin margin of 4,700 votes in 2019. Many believe the votes for Liberterian candidate, John Hicks, 28,433, made the difference which elected Beshear.

The legislative session may not extend beyond March 30 in 2023. Legiscan reports the bill was delivered to Governor Beshear on March 15. It appears action must be taken by the governor or the bill will become law without his signature on March 28, giving the legislature a short opportunity to override a veto, if the bill was vetoed on March 27, 2023.

An election for governor in Kentucky will be held on November 7, 2023, with primaries held on May 16, 2023.

©2022 by Dean Weingarten: Permission to share is granted when this notice and link are included.

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