Bill Description: Senate Bill 1205 prohibits Idaho government entities from enforcing certain unconstitutional federal gun laws.

Rating: +1

Analyst Note: Senate Bill 1205 is the watered down replacement for House Bill 300, a superior and more comprehensive bill known as the "Small Arms Protection Act" that was sponsored by Sen. Christy Zito.

Does it violate the principles of federalism by increasing federal authority, yielding to federal blandishments, or incorporating changeable federal laws into Idaho statutes or rules? Examples include citing federal code without noting as it is written on a certain date, using state resources to enforce federal law, and refusing to support and uphold the Tenth Amendment. Conversely, does it restore or uphold the principles of federalism?

Senate Bill 1205 amends Section 18-3315B, Idaho Code, by adding five new subsections, numbered 4-8. 

The meat of the additions is found in subsection 4, which says, "All Idaho government entities are prohibited from using any personnel, funds, or other resources to enforce, administer, or support the enforcement of any executive order, agency order, treaty, law, rule, or regulation of the United States government enacted or promulgated on or after the effective date of this act upon a firearm, firearm component, firearm accessory, or ammunition if contrary to the provisions of section 11, article I of the constitution of the state of Idaho."

This is a fairly strong provision, although it does not clarify who will determine if "any executive order, agency order, treaty, law, rule, or regulation" violates the Idaho Constitution, nor does it specify how such a determination will be made. 

For reference, Section 11, Article I of the Constitution of the State of Idaho reads as follows:

The people have the right to keep and bear arms, which right shall not be abridged; but this provision shall not prevent the passage of laws to govern the carrying of weapons concealed on the person nor prevent passage of legislation providing minimum sentences for crimes committed while in possession of a firearm, nor prevent the passage of legislation providing penalties for the possession of firearms by a convicted felon, nor prevent the passage of any legislation punishing the use of a firearm. No law shall impose licensure, registration or special taxation on the ownership or possession of firearms or ammunition. Nor shall any law permit the confiscation of firearms, except those actually used in the commission of a felony.

The rest of the bill lacks substance. Unlike House Bill 300, which required the Idaho attorney general to challenge any unconstitutional federal gun laws, Senate Bill 1205 merely says, "The provisions of this section may be enforced by the Idaho attorney general." Using the word "may" means the attorney general is not required to challenge the enforcement of unconstitutional federal gun laws.

The bill also says, "The legislature of the state of Idaho may bring legal action for declaratory or injunctive relief to ensure compliance with the provisions of this section." There is that word “may” again. 

Subsection 6 of the bill says, "With the exception of failure to comply with an order of the court, any official, agent, or employee of an Idaho government entity shall not be subject to civil liability for failure to enforce, support, or assist with the enforcement of any executive order, agency order, treaty, law, rule, or regulation of the United States government that is contrary to section 11, article I of the constitution of the state of Idaho or the second amendment to the United States constitution."

Compare the language from subsection 6 to the language that was contained in House Bill 300: "Any such official agent or employee of the state, or its political subdivisions, shall be immune from any liability, civil or criminal, for failure to assist with any such enforcement."

Senate Bill 1205 deletes the reference to criminal liability, and it adds the phrase, "with the exception of failure to comply with an order of the court. ..." Does this mean that if a court orders the unconstitutional seizure of firearms not "actually used in the commission of a felony," this immunity does not apply? It would certainly appear that way. 

Finally, Senate Bill 1205 contains a severability clause and an emergency clause retroactive to Jan. 20, 2021. 

While Senate Bill 1205 would improve upon existing Idaho law, it falls short of the more significant improvements offered by House Bill 300. 

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