This article originally appeared in the National Review Online on 1/14/2013
Later this week, President Obama is going to unveil a gun-control package that will almost certainly include expanded background checks for gun purchases. The federal government will almost certainly have to deputize state officers to make that work. That could give state governments a key role in the coming debate. We know that federal law cannot require state agencies to participate in a federal program. We know that because the Supreme Court’s most important federalism case of the last 30 years – Printz. v. United States (1997) – tells us that the federal government can’t command the states to do anything.
In fact, Printz struck down a part of the Brady Act that required state officials to process background checks on prospective gun purchasers. The Court ruled that this offended “the structural framework of dual sovereignty.” In a classic opinion by Justice Antonin Scalia, the Court observed, “The power of the Federal Government would be augmented immeasurably if it were able to impress into its service-and at no cost to itself – the police officers of the 50 States.”
Alas, Congress had already discovered ways to augment its power immeasurably, without violating the clear prohibition on commandeering – namely by manipulating “cooperative federalism.” The disastrous intermingling of state and federal functions gives Congress enormous power to shape state policies through coercion – and thereby impress the officers of the states into its service just as effectively as if it were commanding them.
So watch out. If the Obama administration proposes money for states to conduct background checks, according to federal instructions, or “permission” for states to do background checks, according to federal instructions, the governments of the several states should answer with one voice: Absolutely not. Washington should pay for, implement, and be accountable for its own policies. Let the president see how much money he can get out of Congress to implement a background-check program. Meantime, states should make it clear that they will refuse to comply with any cooperative federal-state gun-control program. Quite apart from violating the Second Amendment, such programs – whether the subject matter is gun control or health insurance – are deeply corrosive to the Constitution’s federal structure. And conservatives need to start focusing much more systematically on the dangers of “cooperative federalism.”
– Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation. His article “The Federal-State Crack-Up” appears in the January-February issue of The American Interest.