Texas lawmaker challenges "unconstitutional" federal gun regulations

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by MARK WIGGINS / KVUE News and photojournalist ROBERT MCMURREY

Bio | Email | Follow: @MarkW_KVUE

kvue.com

Posted on January 31, 2013 at 7:48 PM

Updated Thursday, Jan 31 at 8:01 PM

AUSTIN -- In response to mass shootings such as the tragic massacre at Sandy Hook Elementary in Connecticut, President Barack Obama in January announced 23 executive actions and a set of recommendations to legislators in an effort to help stem gun violence.

Among his suggestions was a call for Congress to reinstate the ban on "assault weapons" and high-capacity magazines, resulting in an all-out rush to purchase by gun enthusiasts.

Fueling the fire, Sen. Dianne Feinstein (D-CA) filed a bill to renew the ban last week.

A bill filed by Texas State Rep. John Otto (R-Dayton) and signed by 44 House Republicans declares the idea of any such ban "unconstitutional."

The "Second Amendment Preservation Act" (HB 553) aims to outlaw enforcement of any ban in Texas:

"All federal acts, laws, executive orders, agency orders, and rules or regulations of all kinds with the purpose, intent, or effect of confiscating any firearm, banning any firearm, limiting the size of a magazine for any firearm, imposing any limit on the ammunition that may be purchased for any firearm, taxing any firearm or ammunition therefore, or requiring the registration of any firearm or ammunition therefore, infringes upon Texan’s right to bear arms in direct violation of the Second Amendment to the Constitution of the United States, and therefore, any such law is not made in pursuance of the Constitution, is not authorized by the Constitution, and thus, is not the supreme law of the land, and consequently, is invalid in this State and shall be further considered null and void and of no effect in this State."

"The State of Texas cannot nullify federal laws," said former U.S. Attorney Johnny Sutton.

The top federal prosecutor in Western District of Texas under President George W. Bush, Sutton explains determining a law's constitutionality is the sole domain of the U.S. Supreme Court.

"I think what this bill does is it limits the power of certain officials to restrict guns," said Sutton, a gun owner himself. "Really what this bill will do is just push people into court very quickly to decide the constitutionality of these questions."

The bill would make enforcing any ban on certain guns or magazines a crime, and subject state and federal authorities who attempt enforcement to possible fines and jail time.

State authorities would face a maximum penalty of $5,000 in fines and 180 days in jail, while federal authorities would face up to a year in jail and $10,000 in fines.

"Of course we have concerns that any time you enhance some kind of statute or create some kind of rule that automatically makes a felon or a misdemeanor out of a police officer in the line of duty, we'll always be interested in watching it," said Charley Wilkison of the Combined Law Enforcement Associations of Texas (CLEAT). "We value the point he's [Otto] trying to make out there, but as it comes to it, it will be decided higher up the political chain in the United States Supreme Court."

Otto declined multiple requests to talk about the bill, but his office provided the following statement from a press release issued the day the bill was filed:

"My heart goes out to every victim of gun violence," Otto wrote, “but my head knows that banning or restricting guns, magazines, or ammunition won’t prevent criminals from getting guns and using them for evil purposes, and that good people need guns to protect and defend themselves. The Constitution was designed for times like these—when emotions run high and justice demands a response. But our Founders saw the wisdom in preserving our natural right of self-preservation and self-defense, and provided that our right to keep and bear arms shall not be infringed. My bill is designed to ensure that for Texans, at least, that will remain true."

Asked about the bill by sister station WFAA in Dallas, Governor Rick Perry suggested Washington should be sent a message.

"Everyone will have pieces of legislation," said Perry, describing himself as a longtime champion of both Second Amendment and Tenth Amendment rights. "I happen to think the federal government has done a really poor job of respecting the Tenth Amendment over the last few years, forcing things on the states that are not constitutional."

"It sounds like we've got a group up there that wants to take us back before the Civil War," said Rep. Lloyd Doggett (D-TX).

The Democratic Congressman from Central Texas argues current gun laws are worth another look and that potential reforms wouldn't bother the majority of gun-owning Texans.

"If there is someone who's deranged there, the weapons that they're using don't allow them to kill so many people so rapidly," said Doggett. "We can't eliminate the risk, but we can reduce the risk of harm to our families."

So what would happen if the state did jail federal agents enforcing the law?

The law includes a potential defense for federal authorities if "the person performed the act consistent with an explicit and applicable grant of federal statutory authority that is consistent with the United States Constitution," a phrase rendered questionable by the text's previous constitutional test.

"I don't see it going that far," said Sutton. "I think this is really just a statement by the State of Texas that they're going to protect their gun rights and they want to fight it out in court and they want to have that standing, and this bill may get them that."

"As that bill in D.C. moderates, changes and evolves, I think you're likely to see this bill moderate and change and evolve," said Wilkison, who notes lately emotions are running high on both sides of the gun debate. "It's a reaction going on."

Similar legislation has been filed in a handful of other states. For now, the debate is good for business, and it won't be over any time soon.

For bill details -- CLICK HERE.

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