Gun bills pending in state legislature
Published: Thursday, January 24th, 2013
The South Dakota legislature appears poised to fire a preemptive strike against expected federal gun control legislation with Republican District 4 Sen. Tim Begalka set to sponsor a bill in the legislature that would prohibit the government from confiscating firearms.
The bill is one of several gun control bills the legislature will take up during this year’s session. The bill is gaining support among state representatives, including those in District 30. District 30 Rep. Mike Verchio is among the supporters.
“I’m supporting four Second Amendment bills coming up,” he said. “Anything that gives us the right to bear arms.”
The bill comes on the heels of a controversial Wyoming legislative bill that would prohibit enforcement of gun control measures enacted by the U.S. government. State Rep. Kendell Kroeker (R-Evansville) has put forward a bill making it a felony to enforce in Wyoming any federal ban on assault weapons or high-capacity gun magazines. The bill, if passed, would enable Wyoming to put federal agents in prison for up to five years and be fined $50,000 for attempting to enforce such bans in Wyoming. It covers gun bans the federal government passes after Jan. 1.
“We want to get things ahead of the game,” Kroeker told the Huffington Post. “We take the Second Amendment seriously in Wyoming. I take an oath to uphold, support and defend the Constitution of the United States and the Constitution of Wyoming. I believe it is my duty to take that oath seriously. If the federal government is going to pass laws taking back our rights, it is our right as a state to defend those rights.”
District 30 Rep. Lance Russell said he has received many emails from District 30 asking him to submit similar proposals to the South Dakota legislature, and he has co-signed as a sponsor of a similar bill. He said the state already has a similar law in South Dakota that was passed by former state Rep. Kristi Noem. He said the new bill will add penalty provisions for violations.
“Our Second Amendment rights are under the most serious and sustained attack in years,” Russell said. “This is a very scary time and I believe the state has an obligation to defend the rights of our citizens.”
Whether or not such a piece of legislation would hold up in court is another story. Verchio said it is important to pass the legislation before the federal government takes too much action on gun control.
“Once that is in our law and a federal law is made after that, we stand a chance at beating them (in court),” he said. “If you do it after that, you stand about zero chance at beating them.”
In the Huffington Post article, Jeffrey Fisher, a Stanford University law professor and former Supreme Court clerk, said “it is elementary that a state cannot pass a statute that blocks enforcement of an otherwise enforceable federal law.”
Under the supremacy clause of the U.S. Constitution, federal laws take precedence over state laws. States can only opt out of federal mandates connected to accepting federal funds, as the Supreme Court recently reaffirmed in declaring the Affordable Care Act’s Medicaid expansion program to be voluntary for states.
District 30 Sen. Bruce Rampelberg said he has read Wyoming’s bill, and while he likes the idea of getting the federal government out of people’s personal lives, he doubts the state would prevail over the federal government when push comes to shove.
“I believe the feds interpret the commerce clause to give them the authority to enforce federal regulations,” he said.
Verchio said a possible showdown with the federal government won’t be enough to dissuade him from passing such proposed legislation.
“I’ll let (South Dakota Attorney General) Marty Jackley worry about that,” he said. “Our attorney general is pretty tough.”
Convicted felons are not allowed to be in possession of firearms and cannot receive a concealed carry permit. Custer County Sheriff Rick Wheeler said someone must have lived in the county for 30 days to apply for such a permit. Although most people who apply get a permit, each application is examined.
Wheeler said if an applicant has an "iffy" track record in terms of criminal history, they are interviewed before a permit is issued—especially if there are domestic violence issues in their past.
As far as the potential for a federal mandate handed down that would require his department to confiscate guns, Wheeler declined to comment, but did say it was a Second Amendment issue.
“It’s just something I hope never happens,” he said.
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