Thankfully, under our system of federalism, state legislatures can ward off such executive overreach.
It comes as no surprise former Vice President Joe Biden and Senator Kamala Harris are campaigning on promises “to end our gun-violence epidemic.” The leftward drift of the Democratic Party on most policy questions, including lawful firearm ownership, has been made explicit in its 2020 party platform. The presidential nominee’s campaign “issues page” takes it several steps further, promising to pass or incentivize all manner of gun restrictions.
In addition to the lack of evidence supporting these initiatives and their dubious constitutionality they all share one principal problem: The federal government — the helm of which Joe Biden seeks to occupy — has very little authority in this domain. In order to accomplish these policy aims, state and local law-enforcement agencies would need to be pressed into service.
Biden has already had his wrist slapped in this regard. His website touts his “shepherding” of the Brady Handgun Violence Prevention Act, a bill most known for the again-promised “assault-weapons ban.” The ban later expired in 2004, with rates of firearm violence actually trending lower after its expiration than during its effect.
Among other provisions, the bill also required that local chief law enforcement officers (CLEOs) perform background checks on prospective firearm purchasers. Jay Printz, sheriff of Ravalli County, Mont., brought suit against the United States, stating that the federal government had no authority to compel state and local officials to execute federal law. In Printz v. United States, the U.S. Supreme Court agreed, holding that despite the increasingly expansive interpretation of the “necessary and proper” clause, Congress cannot enjoin state officials to do its bidding. As a result, the mandate was subsequently ejected from the Brady Bill.
Harris’s understanding of the Second Amendment within our system of federalism is even more stunted. As the attorney general of California, she signed on to an amicus brief claiming that governments have complete authority to wholly ban handguns — an assertion that has been repeatedly rejected by courts and historians alike. During her presidential run in 2019, she promised to enact her preferred elements of gun control via executive orders, none of which were within the realm of executive control. Paradoxically, she is seeking to leave the one body that could enact substantive reform without so much as ceremonially filing legislation to do what she is promising.
However, post-Printz, a largely weak Congress and an expansive executive branch have found another way to force their will on individuals in areas traditionally regulated by state law: via debt-financed federal purse. “Simply do X,” the federal government promises, “and make yourself eligible for Y amount of dollars through the new Z grant program! You are leaving money on the table by not doing so!” Of course, the messaging always fails to mention that it is your money as a taxpayer being left upon the proverbial table.
The word “incentive” or “incentivize” appears no fewer than five times in Biden’s gun-control agenda, seeking to “nudge” state policymaking in firearm and policing policy. State and local governments, none of which have their own money-printing press or central bank, must balance their needs with their limited resources and might be tempted to abdicate their responsibilities for quick cash.
This puts police officers in a bind. Having sworn an oath to uphold state and federal constitutions and local, state, and federal laws, what is their proper course of action if a supine Congress — under the prodding of an overreaching executive — incentivizes demonstrably unconstitutional behavior from state and local governments?
Law enforcement today is under attack from radical criminals. It is unconscionable to set the police against law-abiding citizens as well in pursuit of progressive orthodoxy.
Luckily, states do have recourse. State legislatures can prohibit local entities from participating in direct federal-grant programs that usurp their traditional prerogative. Governors can refuse to participate in programs that similarly transfer decision-making authority. Of course, both require the relevant actor to prize the long-term health of our federalist republican government over the short-term infusion of lucre.
Derek Cohen, Ph.D. (@CohenAtTPPF) is the policy director of Right on Crime at the nonprofit Texas Public Policy Foundation.
Randy Petersen is a senior researcher for the policing initiative at the Texas Public Policy Foundation. He spent 21 years as a police officer working in the patrol, investigations, training, and administrative divisions before retiring in 2014 and becoming a director of a police academy in Texas.