Now that the text of the bill is finally available, let’s go through this.
Claudia Tenney (R-NY-24) introduced HR.373 as part of the 119th Congress, called simply the SAGA Act, or “Second Amendment Guarantee Act”. It had previously been introduced in the 115th Congress by Chris Collins, also from New York. The meat of the bill seeks to amend 18 USC § 927. Currently that statute reads:
No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.
So that’s a bit of legalese, isn’t it?
In short, what this means is no part of Title 18, Chapter 44 – where you’ll find that section – shall be interpreted as precluding States from being able to have their own firearm laws except where Federal law and the laws of a State conflict in a “direct and positive” manner. “Direct or positive” basically means that a State is trying to impose looser restrictions than what Federal law requires. For example, if Federal law had a magazine limit set at 10 rounds, but a State had a magazine restriction of 20 rounds, the latter is not enforceable and the State would instead be required under Federal law to enforce the 10 round limit. This is known as preemption.
Claudia Tenney wants to change §927 to this:
(a) Except as provided in subsection (b), no provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together.
(b) (1) A State or a political subdivision of a State may not impose any regulation, prohibition, or registration or licensing requirement with respect to the design, manufacture, importation, sale, transfer, possession, or marking of a rifle or shotgun that has moved in, or any such conduct that affects, interstate or foreign commerce, that is more restrictive, or impose any penalty, tax, fee, or charge with respect to such a rifle or shotgun or such conduct, in an amount greater, than is provided under Federal law. To the extent that a law of a State or political subdivision of a State, whether enacted before, on, or after the date of the enactment of this subsection, violates the preceding sentence, the law shall have no force or effect. For purposes of this subsection, the term ‘rifle or shotgun’ includes any part of a rifle or shotgun, any detachable magazine or ammunition feeding device, and any type of pistol grip or stock design.
(2) In an action brought for damages or relief from a violation of paragraph (1), the court shall award the prevailing plaintiff a reasonable attorney’s fee in addition to any other damages or relief awarded.
This statute sounds somewhat similar to another that was overturned by the Supreme Court.
In 1992 at the tail end of GHWB’s sole term as President, Congress passed and Bush signed into law the Professional and Amateur Sports Protection Act (PASPA) of 1992, which created Title 28, Chapter 178 of the United States Code. Under that Chapter is §3702, which says:
It shall be unlawful for—
(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or
(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity, a lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.
The law not only was a nationwide ban on sports betting, it prohibited States from legalizing it. In 2011, New Jersey would implement the Bradley Act in direct conflict with PASPA. Other States joined in on the legal challenge. And the Supreme Court would rule in Murphy v. NCAA, 584 US 453 (2018), that PASPA is unconstitutional.
The PASPA provision at issue here—prohibiting state authorization of sports gambling—violates the anticommandeering rule. That provision unequivocally dictates what a state legislature may and may not do. And this is true under either our interpretation or that advocated by respondents and the United States. In either event, state legislatures are put under the direct control of Congress. It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.
Well, Claudia Tenney thought of one. She seeks to rewrite §927 and take it from preemption to commandeering.
In short, commandeering when talking about jurisprudence is when Congress enacts a law or the Executive Branch enacts a regulation requiring that States enact or refrain from enacting laws or regulations that include specified provisions. The case in which the anticommandeering doctrine was established is, rather ironically, New York v United States, 505 US 144 (1992). And in establishing the concept of commandeering a State government, the Supreme Court also established the distinction between an incentive and an attempt to commandeer.
The Federal government can provide incentives to States to enact certain laws – e.g., helmet laws and setting the drinking age to 21 – but cannot directly require they pass or refrain from passing legislation or regulation meeting specified requirements or including specified provisions.
In short, except where the Constitution directly allows it, Congress cannot tell the States what they can and cannot do.
Because the States are also sovereigns. And the Federal government is also sovereign, but only to the extent the States have allowed via the Constitution. This is known as the dual sovereignty doctrine, which is derived from Federalist 39. First,
Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.
And,
Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures. In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.
And that dual sovereignty means, again, that Congress largely cannot tell the States what they can and cannot do. Yet Tenney is explicitly doing that in the language for her bill by saying that State laws that run afoul of the language of her bill “shall have no force or effect”.
That is commandeering, since she is basically trying to tell the States what laws they can and cannot enforce. That absolutely runs afoul of the Constitution, and sets a very, very dangerous precedent as well.
