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What is the second amendment preservation act?

Updated on February 6, 2015

The requirements and rights we have under the 2nd amendment to the Constitution are clear and reads as follows: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

The 2nd Amendment Preservation Act is a simple, yet powerful tool to nullify federal gun “laws,” rules and regulations by withdrawing state enforcement and support for these federal acts. The legislation is drafted so as to be introduced and passed as a step-by-step approach, with each step building on the last until all federal gun control is rendered unenforceable and effectively null and void in the state. This action being initiated by some states including Texas is an avenue open to each state to protect the rights of their citizens as defined in this amendment.

Gun violence more than likely will never go away and as a result the federal government is constantly bringing up the issue of gun control as a reaction to these incidents. The problem is not individuals having the right to bear arms but keeping individuals from acquiring arms who do not have the capacity to distinguish between right and wrong regarding firearms. Punishing or attempting to punish all of us by attempting to create a process so restrictive that it prevents or hampers law abiding citizens from executing their rights under the Constitution.

Gun control is a controversial issue which has been made into a political one as many issues have become and hinders cooperative efforts to resolve or address issues regarding gun violence. As stated earlier it is not about law abiding citizens and as such their rights as identified in the 2nd amendment should not be infringed. The definition of infringed from the Merriam-Webster dictionary is: “to encroach upon in a way that violates law or the rights of another” The rights of individuals to own firearms should not be questioned but the access of them by individuals who are unstable or a threat to our national security should. Regardless of whether laws are on the books criminals will have guns. Individuals need to have the capability of protecting themselves and their families and there should be no legislation that restricts that right if they are law abiding citizens.

The 2nd amendment preservation act as it is referenced is a tool needed by the states not only in this instance but others where government has encroached on the rights of citizens as defined in the Constitution. The goal of this act is basically to nullify federal gun “laws,” rules and regulations by withdrawing state enforcement and support for federal acts regarding gun laws. The aim through a step by step process with each step building on the last will render unenforceable and effectively null and void these laws within states which pass such legislation.

The state of Texas has basically set the bar as to the content needed by states to push back on attempts by the federal government in an overreach capacity in violation of citizen’s rights. A key case regarding the enforcement of federal regulatory programs was the 1997 case, Printz v US. In the decision Justice Scalia held: “The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. This statement can have far reaching impact when and if states take action to take themselves out of the enforcement activity for federal laws, regulations or programs.

With respect to a current proposed legislation in Texas HB176 four distinct conditions are noted regarding gun control legislation by the federal government. These four items are provided below:

If passed into law, all government agencies and employees within Texas would be banned from enforcing any federal law in violation of the act. The prohibition on enforcement includes any federal act that:

(1) imposes a tax, fee, or stamp on a firearm, firearm accessory, or firearm ammunition that is not common to all other goods and services and may be reasonably expected to create a chilling effect on the purchase or ownership of those items by a law-abiding citizen;

(2) requires the registration or tracking of a firearm, firearm accessory, or firearm ammunition or the owners of those items that may be reasonably expected to create a chilling effect on the purchase or ownership of those items by a law-abiding citizen;

(3) prohibits the possession, ownership, use, or transfer of a firearm, firearm accessory, or firearm ammunition by a law-abiding citizen;

(4) orders the confiscation of a firearm, firearm accessory, or firearm ammunition from a law-abiding citizen.

The principle that the federal government cannot require states to expend funds to administer or enforce a federal regulatory program if applied to other federal programs which the states now administer or enforce would have far reaching impact. If states made decisions they will not enforce federal laws as they choose the ability of the federal government to enforce them would be hampered. This is especially true if specific laws or regulations were deemed an overreach of the federal government and may in effect nullify the requirements without state help. Along with Texas states such as Idaho, Alaska and Kansas have some activity regarding this type of legislative effort. Other than Texas the details of the other states mentioned are being evaluated. We can only hope that with respect to the 2nd amendment that more states will take the necessary action to protect the rights of their citizens with respect to this amendment. The actions of states with respect to this amendment would make the enforcement of these laws nearly impossible within states executing such legislative action.



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