Ohio Lawmakers Take Second Shot at Second Amendment Preservation Act

Ohio lawmakers are once again considering a Second Amendment Preservation Act after a previous version failed to make it to Gov. Mike DeWine, but the latest iteration of the legislation has some issues of its own.

The centerpiece of the SAPA proposal is a prohibition on state and local law enforcement agencies cooperating with federal law enforcement to enforce federal gun laws. The legislation also allows civil lawsuits to be brought against any department or law enforcement agency that does help to enforce federal gun laws, though there are several exceptions and carveouts contained within the bill.  

Backers believe agencies like the Bureau of Alcohol, Tobacco, Firearms and Explosives have instituted regulations that violate Second Amendment rights, and that those restrictions are unconstitutional given the Tenth Amendment’s constraints on federal authority.

“This bill is a serious and necessary response to very real threats,” Ohio Gun Owners Executive Director Chris Dorr argued in a press release. He bragged that already 35 lawmakers have signed on to the proposal, “standing shoulder-to-shoulder with gun owners and making it clear: Ohio will not be a tool for federal tyranny.”

Although Dorr and other supporters reach for lofty arguments, the proposal’s inciting incident was relatively banal. The ATF under former President Joe Biden moved to restrict pistol braces.

The contention by the Ohio Capital Journal that the only thing the ATF did under Joe Biden was restricting pistol braces is downright absurd. Biden turned the ATF into a weaponized gun control group with law enforcement powers. He redefined firearms to include unfinished frames and receivers. He imposed a rule treating almost every gun owner who even offers to sell a firearm from their person collection as an unlicensed gun dealer. He enacted a “zero tolerance” policy for federally licensed firearm dealers that led to license revocations for minor paperwork errors. Biden’s war on gun owners and the firearms industry was anything but banal. 

Having said that, the fact that this bill is being pushed by the Dorr brothers is troubling, given their reputation among almost every other Second Amendment organization around. In fact, it seems to be substantially similar to the Second Amendment Preservation Act that was enacted in Missouri a few years ago and found to be unconstitutional by both a district court judge and the Eighth Circuit Court of Appeals. Missouri has petitioned the Supreme Court to hear their appeal, and it will be one of the cases taken up in conference when the justices return this fall. 

Missouri AG Andrew Bailey contends the courts invalidated the law “for a forbidden ‘reason’—the legislature’s belief that certain federal laws are unconstitutional.” The DOJ’s reply brief, which was submitted last month, argues that the state of Missouri violated the Supremacy Clause “by purporting to invalidate federal statutes.”

The court accepted that “Missouri may lawfully withhold its assistance from federal law enforcement.” But it determined that Missouri could not do so “by purporting to invalidate federal law.” Applying state-law severability principles, the court then concluded that the entire Act was invalid.

I suspect the Ohio bill is going to run into the same trouble if it’s approved by the legislature, because the measure seems to grant state lawmakers the authority to decide what federal gun laws are enforceable in Ohio. 

Although the several states have granted supremacy to laws and treaties made under the powers granted in the Constitution of the United States, such supremacy does not extend to various federal statutes, executive orders ,administrative orders, court orders, rules, regulations, or other actions that collect data or restrict or prohibit the manufacture, ownership, and use of firearms, firearm accessories, or ammunition exclusively within the borders of Ohio; such statutes, executive orders, administrative orders, court orders, rules, regulations, and other actions exceed the powers granted to the federal government except to the extent they are necessary and proper for governing and regulating the United States armed forces or for organizing, arming, and disciplining militia forces actively employed in the service of the United States armed forces.

The courts have previously rejected similar language, not just in Missouri’s SAPA but with similar laws in Montana and Kansas as well. The Supreme Court’s expansive view of the federal government’s authority to regulate commerce, even with products that never leave the state where it was manufactured, makes this measure highly unlike to survive a court challenge. 

If HB 382 merely stated that no state or local law enforcement agency is permitted to enforce federal gun laws and/or set conditions on enforcement it would be on firm legal footing. But attempting to nullify federal gun law or giving the legislature the authority to determine which federal laws are acceptable and constitutional is likely going to cause the Second Amendment Preservation Act to fail legal scrutiny. 

Of course, the Dorr brothers could always fundraise off that court loss, just like they can try to raise money to challenge any Republican lawmaker who doesn’t sign on to the deeply flawed bill by claiming they’re not true Second Amendment supporters. But if the sponsors of HB 382 really want to help Ohio gun owners, or even if they just want to pass something to prove their 2A bona fides, it would be far better to adopt a measure that has a reasonable chance of standing up in court than one that’s almost certain to be ruled unconstitutional.