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Jean Schmidt, Republican from Loveland in the Ohio House of Representatives
A new bill in the Ohio House would strike out all references to federal firearm policy from state law in an attempt to render state and local law enforcement in Ohio no longer responsible for enforcing federal gun laws.
This furthers a trend in recent years where, for instance, lack of movement on federal immigration legislation has prompted conservative states to adopt laws for more stringent enforcement. Meanwhile, more liberal jurisdictions have declared themselves immigration “sanctuary cities” and refuse to assist federal authorities.
On March 7 at the Ohio Statehouse, backers of what sponsors are calling the Second Amendment Preservation Act spoke in an Ohio House committee. One of them is a former lawmaker from Missouri who got a similar bill passed there in 2021.
Ohio state Reps. Mike Loychick, R-Bazetta, and Jean Schmidt, R-Loveland, describe their measure as a “straightforward” response to their perceived “overreach” of the Bureau of Alcohol Tobacco Firearms and Explosives.
The bill would excise all reference to federal firearm policy from Ohio statutes. The effect, Loychick argued, is that state and local law enforcement agencies don’t have to “become Joe Biden’s enforcement brigade against Ohioans.”
Defending his bill, Loychick claimed the proposal does not challenge the Supremacy Clause of the U.S. Constitution.
“The Supremacy Clause states that the federal constitution/laws usually take precedent over state constitutions/laws,” his sponsor testimony states. “House Bill 51 does not challenge that. It simply states that the state of Ohio will not help federal government enforce their gun-control agenda.”
However, a nonpartisan Legislative Service Commission analysis warns provisions in the measure that attempt to “nullify” federal actions or eliminate federal immunities “may be vulnerable to challenge.”
Even should the legislation survive challenge, a state ignoring federal law doesn’t make it disappear. Local governments can approve ordinances that reflect federal law where state law is silent. For instance, that’s how Columbus can prohibit people with misdemeanor domestic violence convictions from having a firearm. Under state law, only felony domestic violence triggers that prohibition.
To discourage locals from enforcing the provisions they’re eliminating, Loychick and Schmidt have proposed a private cause of action. This would allow Ohioans who believe an agency has infringed on their Second Amendment rights to sue in common pleas court.
The star witness
Former Missouri Republican state Rep. Jered Taylor said the legislation finds its roots in anti-commandeering doctrine. Invoking Pennsylvania’s refusal to enforce the Fugitive Slave Act, he noted “the Supreme Court ruled that the feds can’t force states to enforce federal law.”
His legislation and the bill in Ohio apply the same logic, he argued, to the enforcement of firearms offenses.
“It simply tells Ohio law enforcement that they’re going to enforce Ohio laws,” Taylor said. “That they’re not going to be commandeered, that they’re not going to be used by the federal government as an extension of the federal government.”
Committee Democrats pressed him, however, on provisions that restrict local agencies’ participation in joint efforts with federal agencies. The bill allows locals to accept federal funding and resources to enforce state law, but not federal ones. Rep. Dani Isaacsohn, D-Cincinnati, argued that goes well beyond blocking commandeering.
“It punishes local law enforcement who willingly cooperate with federal law,” he said.
Isaachson cited a complicated provision dealing with when local agencies can assist federal authorities in a pursuit. Taylor argued back that the language ensures people can’t break the law in another state and flee to Ohio.
State Rep. Richard Brown, D-Canal Winchester, criticized a portion that would ignore effectively any federal action related to firearms. Reading from the bill he noted anything that would “infringe” on the Second Amendment, “shall be invalid in this state, shall not be recognized by the state, shall be specifically rejected by the state and shall not be enforced by the state.”
“So, the question I have is, who makes this determination that a particular law infringes on the people’s right to keep your arms under the Second Amendment?” Brown asked. “Is it a cop on the street that’s trying to decide whether or not to arrest somebody?”
In their sponsor testimony, Loychick and Schmidt singled out a recent rule change on pistol braces
as particularly onerous. Other proponents were quick to echo their anger.
The accessories convert a handgun so that it can be fired from the shoulder. The ATF’s rule says that conversion means it falls under the definition of a short-barreled rifle.
“A pistol brace no more makes the pistol a rifle than attaching a pony to a Budweiser wagon makes it a Clydesdale,” Tammy Weaver quipped.
Owners must get rid of the braces or register their gun with the ATF by the end of May.
Next week the committee plans to hear testimony in opposition to the bill. It’s likely opponents will be pointing to Missouri’s legislation as well. Coincidentally, a federal judge in Kansas City struck down the measure
shortly before Tuesday’s committee hearing.
Taylor said he and other Missouri lawmakers saw it coming, and he insisted they’re looking forward to appealing the ruling.
This story originally was published in the Ohio Capital Journal and is republished here with permission.
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