The 10th Amendment and Gun Laws

Amid national gun reform, Wyoming takes contrarian stance


The 10th Amendment and Gun LawsIn the midst of a national gun-control effort to curb firearm violence, Wyoming’s lawmakers have introduced a raft of measures aimed largely at protecting and expanding the right to bear arms.

The Wyoming Firearms Protection Act has drawn national media attention by proposing to ban enforcement of all federal gun regulations within the state.

Another bill responding to the Newtown, Conn., school massacre would allow carrying concealed weapons at schools and college campuses.

Monday (January 28) began gun and social issues week in the Wyoming House, with lawmakers hearing a variety of bills dealing with hot button issues such as guns, voter registration, abortion, and domestic partnerships.

Several legislators, including Rep. Kendell Kroeker (R-Evansville), allegedly received threatening emails early in the legislature’s winter session. That moved House Speaker Rep. Tom Lubnau (R-Gillette) to schedule social issues bills together to facilitate heightened security in the Capitol. (The Casper Star Tribune covered the added security here.)

On Monday, the House Judiciary Committee heard bills regarding the carrying of concealed weapons in government meetings and prohibition of weapons from courtrooms. Both measures passed.

Discussion of gun bills continues today (Tuesday, January 29). As this article is published, the Judiciary Committee will cast votes on state preemption of local gun laws. They will also consider a ban on enforcing federal firearms regulation, and permitting concealed carry in schools. Click here for a full schedule of committee meetings.

The bills that pass out of committee will hit the floor of the House on Wednesday (January 30) for three rounds of debate.

The bills don’t have universal approval on the part of Wyoming lawmakers, but their existence reflects attitudes embracing the Second Amendment and a vibrant gun culture. In a state where President Barack Obama earned only 28 percent of the vote, it may not be a surprise that some lawmakers stand determined that Wyoming approach firearms law in its own way.

More guns = less crime?

Why is Wyoming’s firearms legislation heading in the opposite direction from that of more urban parts of the country?

Simply put, many people here love guns. Generational traditions of hunting and target shooting mesh well with the abundance of wildlife and open spaces. Knowing how to shoot a gun puts wild game on the dinner table for many families.

But there’s also a sense that guns aren’t the root cause of violence, and that restricting firearms won’t help reduce gun violence.

“A well-armed society is a safe society,” said Rep. Allen Jaggi (R-Lyman), a retired biology teacher. “The more guns you take away, the more rights of people you take away, the more rights you’re giving to the bad guys, the criminals who don’t care about the law.”

Broadly speaking, Wyoming does have less crime than other states while also being well armed. In 2001, the state ranked No. 1 in the nation for the rate of gun ownership, with 59.7 percent of survey respondents saying they had guns in their household. Wyoming ranked 43rd in the nation for the rate of violent crime per 100,000 people, according to 2006 numbers from the U.S. Census Bureau.

While Wyoming does have a low overall crime rate, residents also face a higher risk of dying by guns than people in other states. According to the Center for Disease Control, in 2009 Wyoming had a firearms death rate of 18.1 per 100,000, tying with Louisiana for the highest rank among the 50 states and Washington D.C. This rate includes all gun deaths from violent crimes, accidents, and suicides.

So do Wyoming’s guns make us more or less safe?

A 2004 report from the National Research Council cited by Factcheck.org states, “Existing research studies and data include a wealth of descriptive information on homicide, suicide, and firearms, but, because of the limitations of existing data and methods, do not credibly demonstrate a causal relationship between the ownership of firearms and the causes or prevention of criminal violence or suicide.”

So, for many scientists, the jury is still out, even as advocates on both sides stand firm on their positions. That leaves gun issues to the realm of politics, where the best-sounding rhetoric may win the day.

The 2013 docket

Legislation currently under consideration follows on several steps taken to broaden gun rights in recent years.

In 2011 the legislature passed the Wyoming Firearms Freedom Act, which states federal regulations on gun manufacture do not apply to guns made in Wyoming and used exclusively within the state. Then in 2012, Wyoming passed a law allowing residents to carry concealed weapons without a permit, so long as they possess the qualifications normally required for a permit.

With the exception of Senate File 132, a bill legalizing silencers, all of this year’s the firearms legislation is coming from the House.

House Bill 104 “Firearm Protection Act”

Wyoming lawmakers made national headlines earlier this month with a proposed bill that would ban the enforcement of any federal gun law passed after January 1, 2013. News outlets including the Huffington Post, Yahoo, Fox News, and others picked up the story after a news item from K2 Radio ran on the Drudge Report.

House Bill 104 builds on the framework set up by the Wyoming Firearms Freedom Act by extending exemption from federal regulation to all guns owned within the state of Wyoming. Any public servant who tries to enforce federal laws would face a fine of up to $5,000 and up to five years in jail. (Note: Last week several media outlets misstated the maximum fine as $50,0000.)

The bill’s sponsor is Rep. Kendell Kroeker (R), who owns a power sports retail store in Evansville. A similar bill is under consideration in Texas, according to the Huffington Post. Wyoming lawmakers join Mississippi, Utah, Tennessee, Kentucky, Oregon, and Texas in pushing back on gun control legislation.

“We’re saying that we’re not going to allow an unconstitutional law to be enforced in Wyoming,” Kroeker said.

Kroeker’s website points to an article from the New American as an explanation of HB 104. The New American is an advocacy site published by a subsidiary of the John Birch Society, a conservative group.

The article explains the bill’s strategy of “nullification” where states pass laws that directly conflict with federal policies. The strategy relies on the Tenth Amendment, which reserves all powers not delegated to the federal government and the states for the people.

A book review on the New American gives other examples of nullification. For example, Washington and Colorado recently took such action by legalizing marijuana in the face of federal drug laws. Many states passed laws in opposition to the Federal Real ID Act of 2005 (and Kroeker has introduced such a bill in this session).

Some see nullification as one of the best tools available for Tea Party politicians seeking to reduce federal overreach. But at least one legal scholar doubts that Wyoming’s Firearms Protection Act would stand up in court. Stanford University law professor Jeffrey Fisher told the Huffington Post, “It is elementary that a state cannot pass a statute that blocks enforcement of an otherwise enforceable federal law.”

That is backed up by the supremacy clause in Article VI of the Constitution, which requires judges in every state to look to the Constitution and the laws of the United States as the “supreme law of the land.”

Rep. Patrick Goggles (D-Ethete) questioned the approach of penalizing federal law enforcement, saying, “I do have questions about arresting federal officials. I don’t know how a state like us can enjoin a federal official from doing their job.”

Rep. Ruth Petroff (R-Jackson) said she believes HB 104 might work with a softer approach to federal disobedience, something more like Washington and Colorado’s approach to decriminalizing marijuana. “If we don’t like a federal law, we don’t let our state officials enforce it. But we don’t imprison federal officials who enforce the law,” she said.

If HB 104 passes as written, it may set the stage for yet another legal fight between Wyoming and the federal government.

Rep. Allen Jaggi (R-Lyman), one of the bill’s co-sponsors, said he thought HB 104 could help prevent federal officials acting under an executive order from taking away large-capacity magazines, assault rifles and semi-automatic pistols. But if gun control legislation passes Congress, Jaggi believes that Wyoming would need to revisit the issue.

“Realistically, I think it would get challenged and go to the Supreme Court before it would come to an armed showdown. I think it gives Wyoming good solid standing to be able to make those challenges,” Kroeker said.

Kroeker heard complaints that House Speaker Tom Lubnau (R-Gillette) held up the bill from being introduced to committee. “We didn’t get to vote on it right away. I think that’s helped us,” he said. “I think the longer it’s gone on the more support has built for it.”

House Bill 105 — Citizens and Students Self-Defense Act

Another measure before Wyoming lawmakers aims to prevent tragedies like the Newtown, Conn., massacre. House Bill 105, Citizens and Students Self-Defense Act, would allow concealed weapons permit holders to carry guns in schools.

Current law prevents permit holders from carrying into schools and school zones. Second Amendment proponents argue that gun-free zones make students and faculty defenseless targets that attract people wanting to cause mayhem. The opposite view criticizes the idea of answering violence with violence.

Rep. Jaggi sponsored the bill, saying violence in schools is a real concern. “I just can’t imagine somebody walking into a school and just killing innocent little kids,” he said. “Had the principal been armed, had a custodian been armed, had a teacher been armed, I think we could have minimized lots of problems.”

House Bill 230, School Safety and Security, offers an alternative approach to make schools safer. The bill would provide for an appropriation to schools for school resource officers, presuming to enhance the safety of students and employees. It would also create a task force within the school facilities commission to assess building security needs.

Rep. Goggles said he would support enough funding so all schools have full-time school resource officers. “That’s a more pragmatic way of protecting our schools, rather than arming individuals,” he said.

The resource officer bill passed the House Education Committee last week (Friday, January 25). If the bill passes a re-referral to the House Appropriations Committee for fiscal review, it will then go to the floor of the House for debate.

House Bill 105 passed the Judiciary Committee on January 29 by a vote of eight to one, with Rep. Cathy Connolly (D-Laramie) voting no.

House Bill 103 — Regulation of firearms-state preemption

Just as federal firearms law trumps state law, so do Wyoming’s statutes trump the laws of county and city governments — to a point.

Current Wyoming statutes preempt local governments from making their own gun laws, with the broad exception under Wyoming Statute 15-1-103, which allows local governing bodies to “regulate, prevent or suppress riots, disturbances, disorderly assemblies or parades, or any other conduct which disturbs or jeopardizes the public health, safety, peace or morality, in any public or private place.”

Casper city officials acted in the spirit of that language when they banned carrying weapons in city meetings in December 2011. During debate over the action, Anthony Bouchard of the Wyoming Gun Owners Association appeared in a meeting with a holstered pistol on his belt.

A recent article in the Wyoming Tribune-Eagle stated that Cheyenne officials might also look at limiting where weapons may be carried in municipal buildings.

House Bill 103, from primary sponsor Rep. Allen Jaggi, would remove the broad power of local governments to prevent disturbances to public safety granted under W.S. 15-1-103. It would also award litigation expenses and court fees to a plaintiff adversely affected by local gun laws not permitted under state law.

If enacted, HB 103 would help ensure that state firearms law preempts local laws.

Furthermore, Rep. Jaggi said the bill could also help address a situation in Albany County, where District Judge Jeffery Donnell sought to ban guns not only in his courtroom, but also in the entire courthouse building.

The Casper Star-Tribune reported that House Speaker Rep. Lubnau  had plans to introduce a bill to allow local governments to regulate firearms more broadly. As of Monday, no bill sponsored by Lubnau on the Legislative Service Office website matches that description.

House Bill 103 passed the Judiciary Committee on January 29 by a vote of eight to one, with Rep. Cathy Connolly (D-Laramie) voting no.

House Bill 200 — Concealed weapons, government meetings

Current Wyoming law under W.S. 6-8-104(t) bans concealed weapons in courtrooms, prisons, schools, churches, and government meetings, among other places.

House Bill 200 would allow an exception to the ban in government meetings, where the executive head of the entity conducting a meeting could allow for concealed weapons permit holders to carry guns.

Rep. Kermit Brown (R-Laramie) sponsored the bill, along with Rep. Keith Gingery (R-Jackson), Jaggi, and Kroeker.

The bill could allow public audience members, or public officials, to carry concealed weapons. Rep. Jaggi said he originally wanted the concept of HB 200 to be included in HB 105.

Currently, the open carry of weapons in government meetings is legal until banned by the presiding body, as demonstrated by Anthony Bouchard in Casper back in November 2011.

When the Judiciary Committee heard the bill on January 28, Rep. Kendell Kroeker amended the bill to delete the restriction on carrying a concealed weapon in a government meeting in W.S. 6-8-104(t) iv. The amendment passed 8-0 with Rep. Cathy Connolly (D-Laramie) excused.

Kroeker’s amendment effectively enables citizens to carry concealed weapons in government meetings without the permission of the head of the presiding entity. If the legislation passes the House and Senate, and is signed by the governor, it would put concealed carry on equal ground with open carry in government meetings.

House Bill 216 — Deadly weapons in a courtroom

There are already a few places in Wyoming where carrying a deadly weapon — concealed or openly — can result in armed citizens being charged with a felony. That list includes jails, prisons, the state schools for girls and boys, and the Wyoming State Hospital.

House Bill 216 would add courtrooms to that list. The bill contains an exception allowing judges to determine who may carry a weapon into court. Brown, Gingery, Kroeker, and Jaggi sponsored the bill.

In testimony before the Judiciary Committee on January 28th, Rep. Kermit Brown (R-Laramie) said he drafted the bill to clarify in statute that weapons are prohibited in courtrooms.

Rep. Brown said the bill would remove the need for judges to rely on “inherent judicial authority” to ban weapons in courtrooms.

That might resolve an issue in Albany County, where District Court Judge Jeffrey Donnell issued a court order banning guns from the entire courthouse building. He did so without the approval of the Albany County Commissioners, who may have the final say over building policy.

The Wyoming Gun Owners Association took a strong stance against Judge Donnell’s action.

Donnell justified the order by citing courthouse shootings across the country, and an incident of shots fired at a courthouse in Riverton last year. He relied on “inherent authority” to support the ban.

“There’s been an argument made by the courts that they have the authority to do this,” said Rep. Brown. “I wanted to put it to rest, so it doesn’t rely on the inherent authority of the judicial branch and just say statutorily it’s a felony (to bring a weapon into a courtroom).”

The committee passed HB 216 with a vote of five to three.

House Bill 73 — State Firearm

Like most states, Wyoming has a state flower, a state reptile, and a state tree. House Bill 73 would designate a revolver manufactured by Freedom Arms in Freedom, Wyoming, as the state pistol.

The bill states, “The Model 83, .454 Casull, first manufactured in Freedom, Wyoming in 1983, is the state firearm of Wyoming.”

The proposed state gun was the first revolver to use the .454 caliber Casull cartridge, which is one of the most powerful cartridges in production.

Among the bill’s sponsors is Rep. Marti Halverson (R) who comes from Etna, Wyo., a Star Valley community in the far western part of the state near the Freedom Arms factory.

Silencer Bills

House Bill 005, titled “Silencers, suppressors and automatic weapons while hunting,” would have allowed the use of silencers for hunting. But the bill died in the House Travel, Recreation, Wildlife and Cultural Resources Committee earlier in the session.

Lawmakers in the interim had approved the bill for introduction after attending a shooting demonstration hosted by Cheyenne silencer manufacturer Thunder Beast Arms.

However, freshman lawmakers replaced several members of the interim committee when the session began. When the bill came up, Game and Fish director Scott Talbott said his department had a neutral position on the issue. But then the Game Warden’s Association spoke against the bill, supposedly influencing the committee to vote the legislation down.

Rep. Jaggi and Bob Wharff of Sportsmen for Fish and Wildlife, took issue with the split message coming from the Game and Fish and the warden’s association. The association’s website notes that it is independent of the Game and Fish, though its members are G&F employees.

After the house silencer bill died, Sen. Ogden Driskill (R-Devil’s Tower) reintroduced a similar proposal as Senate File 132. “Half of the committee members in interim went away, so we had a new deck of cards. I felt like it didn’t get a fair shake,” he said.

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