Wyoming Ban On Federal Gun Bans Proposed By State Lawmaker

01/10/2013 07:51 pm ET | Updated Jan 11, 2013

A Republican state lawmaker in Wyoming has introduced legislation to prohibit enforcement of federal gun control measures that Vice President Joe Biden is likely to recommend next week.

State Rep. Kendell Kroeker (R-Evansville) has put forward a bill making it a felony to enforce in Wyoming any federal ban on assault weapons or high-capacity gun magazines, two proposals that Biden's gun control task force is likely to present to President Barack Obama on Tuesday. The task force's recommendations, of course, would have to be passed by Congress and signed by Obama in order to become law.

Kroeker said his bill, which would hit federal agents with up to five years in prison and a $50,000 fine for attempting to enforce such bans in Wyoming, is designed to be proactive in preserving gun rights.

"We want to get things ahead of the game," Kroeker said, pointing to opponents of the Bill of Rights two centuries ago who argued that the amendments were not necessary because there was no issue over those rights. "We take the Second Amendment seriously in Wyoming."

Kroeker's bill covers gun bans that the federal government passes after Jan. 1, 2013.

"I take an oath to uphold, support and defend the Constitution of the United States and the constitution of Wyoming," said Kroeker, who had previously sponsored legislation to return Wyoming to the gold standard. "I believe it is my duty to take that oath seriously. If the federal government is going to pass laws taking back our rights, it is our right as a state to defend those rights."

Underlying this legislation, Kroeker is making a controversial argument about the power of states to nullify federal law. He told HuffPost that Thomas Jefferson helped lead Kentucky and Virginia lawmakers in resisting state enforcement of the Alien and Sedition Acts in the late 18th century.

Jeffrey Fisher, a Stanford University law professor and former Supreme Court clerk, was not persuaded. "It is elementary that a state cannot pass a statute that blocks enforcement of an otherwise enforceable federal law," he said.

Under the supremacy clause of the U.S. Constitution, federal laws take precedence over state laws. States can only opt out of federal mandates connected to accepting federal funds, as the Supreme Court recently reaffirmed in declaring the Affordable Care Act's Medicaid expansion program to be voluntary for the states.

Fisher said if Wyoming passed Kroeker's legislation, the federal government could ignore it and enforce any new gun restrictions in the state or the government could take Wyoming to court to overturn the state law.

As for the Kentucky and Virginia efforts that Kroeker cited, these were simply resolutions passed by the two state legislatures in 1798 and 1799 opposing the Alien and Sedition Acts and seeking to make the case that states had the power to nullify federal laws they considered unconstitutional.

Kroeker has been joined by several other GOP legislators in backing the bill, which could pass Wyoming's strongly pro-Second Amendment, Republican-controlled Legislature. He said he has not talked to Gov. Matt Mead (R) about the bill. Mead, a gun rights supporter, is prohibited by state law from publicly threatening to veto legislation.

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