Senate strips gun bill of controversial language

The Second Amendment Preservation Act bill has been passed by the Wyoming Senate – but not in the form that caused heartburn for all 23 of this state’s sheriffs when it first appeared. A substantial amendment from Senator Larry Hicks last week aimed to fix the anti-law enforcement implications of Senate File 81.

The intent of the Second Amendment Preservation Act is to prevent firearms from being confiscated by federal entities due to federal laws that may be passed in the future. In its original form, it focused on holding state law enforcement officers accountable for enforcing those federal laws.

One section that was of concern to Wyoming’s sheriffs stated that no person shall have the authority to enforce a federal law or ordinance that infringes on Second Amendment rights, while another said that anyone who does so shall be “permanently ineligible to serve as a law enforcement officer.”

Hicks’ amendment replaced these sections entirely and was borrowed, he said on Wednesday, from a bill moving through the Arizona Legislature as well as similar legislation in West Virginia, Texas and Montana. Hicks said it also borrowed heavily from James Madison’s words in the Federalist Papers, in which he outlined the doctrines of resistance to a federal government that trampled on the rights and freedoms of the people.

Hicks’ version of the bill states that no person representing the state shall enforce – or assist a federal agency in enforcing – a federal action that infringes upon a person’s right to bear arms. A group of 25 Wyoming residents may file a petition requesting a review by the Wyoming Attorney General of any federal action enacted or issued after July 1, 2021 that threatens that right.

The Wyoming Attorney General would review the action and issue a determination of whether or not it is unconstitutional. If the Governor of Wyoming independently agrees the action appears to infringe on Second Amendment rights and that prohibiting enforcement is in the best interests of the state, he or she may issue an executive order directing officers and employees of the state not to enforce it.

Hicks’ amendment also allows the Wyoming Attorney General to intervene in any lawsuit against a Wyoming citizen or firm to protect that entity’s right to bear arms, or to defend a citizen who is prosecuted by the United States government for violating a federal action about which the governor has issued an executive order. The bill appropriates $250,000 from the general fund to the Attorney General’s Office to implement the act.

Senator Dave Kinskey explained how the two versions of the bill differ, commenting that the amendment, “preserves the heart and soul and spirit of what we hope to do in this legislation and it also resolves the dilemmas and the quandaries that we’ve had as we’ve considered it.”

The question posed by the bill, he said, is by what mechanism Wyoming can bring to the attention of the authorities an unconstitutional infringement of Second Amendment rights. The original wording, he said, “awaits for the officer to stumble.”

“In other words…an officer on the scene does something ‘wrong,’ he makes a mistake and he takes a gun when he shouldn’t have taken a gun, and that violates a federal law that the state hasn’t recognized. Now he’s not in court but his city or his county is in court liable for up to $50,000 plus attorneys’ fees plus the expense of a trial and then after all that we find out whether that particular action of the officer infringed on somebody’s Second Amendment rights pursuant to something the federal government did on or after the date of the enactment of the bill,” he said.

“That’s no way to legislate. It places the officers constantly in jeopardy.”

Kinskey presented a scenario in which an officer is called out at 1 a.m. to find a wife with a bloody nose, screaming children and a drunk and yelling husband, with firearms present at the scene.

“What is the right thing to do? Well, they know the right thing to do,” he said, stating that it is not right to put cities and counties in a position where that “right thing” must later be determined in court.

With the amendment in place, however, the mechanism is wholly different.

“If there’s some pronouncement from the federal government, you go to the attorney general and get a clear determination and then the chief executive of the state issues an order. Now we have a chance for the officers to clearly understand the laws they are or are not to enforce,” Kinskey said.

“It’s a much clearer mechanism and it’s consistent with our constitutional right as a state to refuse to participate in enforcement of laws that we believe unconstitutional.”

Hicks commented during the debate that his amendment puts the full weight and force of all three branches of government behind the rights of the people. Not all senators present for the debate were pleased with the changes, however.

Original sponsor Senator Anthony Bouchard, for example, called it “ridiculous” and said the changes “gut” the original bill. Questions were also raised about the apparent lack of punishment in the bill for a violation of such an executive order.

Hicks pointed out that Wyoming’s Statutes already address this question in Title 6, Crimes and Offenses. The penalty for committing an act that an officer of the state does not have the authority to undertake is up to $5000.

Senator Chris Rothfuss, though expressing support for the overall concept of the bill, felt that the Senate would not pass it at this time if it didn’t have the title of “Second Amendment Preservation Act”. Preventing federal overreach from the new administration, he suggested, is perceived as so urgent that it is blinding legislators to the fact that the bill needs more work.

For example, he pointed out that it only requires 25 people to sign a petition in order to burden the Wyoming Attorney General with a substantial amount of work. “I struggle with that,” he said.

Senator Troy McKeown meanwhile expressed doubts that the bill in its new form does anything more than the statutes protecting Second Amendment rights that are already in existence in this state.

Hicks’ amendment, which was split into two parts to address the appropriation separately, passed with a wide margin: 23 ayes to seven nays for the wording portion and 22 ayes to eight nays for the appropriation. Senator Ogden Driskill voted aye on both counts, and also for the overall passage of the bill, which passed with a vote of 24-6.

The bill now moves on to the House, where it had not yet been heard at time of going to press.