Understanding HB 300, Idaho’s 2nd Amendment Protection Act Expansion Bill

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A movement across the country is introducing Second Amendment Protection Act (SAPA for short) bills. 

Idaho, as many of you may know, already has a SAPA law that was passed in 2014. However, due to some recent court rulings/opinions over the last couple of years, some modifications to how we do SAPA law was needed.

That’s why the attorney for the Idaho Second Amendment Alliance, Alexandria Kincaid, and a number of other attorneys who litigate 2nd Amendment issues, came together with another bill for Idahoans that will give us better court arguments when the Biden administration passes gun control.

What we came up with is HB 300 which is linked here.

Be sure to contact your legislators using the link here to ask them to vote “Yes” on HB 300!

The following memorandum was given to the Idaho Second Amendment Alliance and the HB 300’s sponsor, Rep. Christy Zito (R-23) to help citizens and legislators better understand the reasoning behind the bill. The bill text itself is “quoted.”

Section 1, (2)(a) Legislative authority and intent. 

Legislative authority and intent. The provisions of this section are authorized pursuant to the authority of the United States Constitution and the Constitution of the State of Idaho, including but not limited to the Second, Fifth, Ninth, Tenth, and Fourteenth Amendments to the United States Constitution; and Section 11, Article I, of the Constitution of the State of Idaho; and the following cases from the United State Supreme Court: United States v. Lopez, 514 U.S. 549 (1995); and Printz v. United States, 521 U.S. 898 (1997).

The entire Section (2) and all subsections are designed to set forth, as clearly and concisely as possible, the underlying legal premises upon which this law is based.  These provisions are intended to assist the courts (and any lawyer defending the law in federal or state court) in the proper interpretation of our law without room for deviation or inference of the meaning. 

In the first paragraph of Section 1, (2)(a), we recite those US Constitutional amendments, the Idaho constitution, and certain case law to provide a roadmap for the courts.

The following are referenced as a basis for Idaho Code section 18-3315C:

Second Amendment: 

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

This amendment established a pre-existing fundamental right of an individual person to keep and bear arms for self-defense, which is protected, but not granted, by the US Constitution. This is the interpretation given by the U.S. Supreme Court in District of Columbia v. Heller.

Fifth Amendment:

 No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

This amendment is included because it sets forth a redundant “due process” right – against the federal government – before the federal government can deprive people of their firearms.  [Note: The “due process” clause of the 14^th Amendment operates against state governments.]  This amendment also contains a prohibition against either the state or federal government “taking” peoples’ private property for public use without just compensation.  Just compensation can, in some circumstances, be submitted to a jury for determination.  The Seventh Amendment to the U.S. Constitution, mandates a civil jury in all matters where the amount in controversy exceeds $20.00 USD.  If locally empaneled juries set the price of the tools of self-defense at an appropriate price, federal “buy-back” programs (assuming they aren’t unconstitutional under other theories) might be more expensive than the gun-grabbers had anticipated.  [Note: This is a safety-net theory for protecting our rights.  It is NOT the first, or even primary theory for why proposed federal laws mandating citizens turn in guns is unconstitutional.]

Ninth Amendment

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Simply because a right is not listed in the US Constitution, does not mean that it does not exist and should not be afforded constitutional protection.  The Ninth Amendment, while it mentions no substantive rights, is an important statement of principle that government is NOT the source of rights, but the instrument for protecting rights – even unenumerated rights.

One argument that may be made to support the expanded protection provided by the Idaho constitution of the right to keep and bear arms is that this right is fundamental and predates the U.S. Constitution (indeed predates humankind’s need of government, in fact, the first principle of government is the protection rights necessary for human existence: the right of conscience, the right of self-defense, the right to make and acquire property) and is covered by the Constitution’s Ninth Amendment; according to this viewpoint, the Second Amendment merely enumerates a pre-existing right to keep and bear arms.

 Tenth Amendment

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

States and local governments have occasionally attempted to assert exemption from various federal regulations, especially in the areas of labor and environmental controls, using the Tenth Amendment as a basis for their claim. An often-repeated quote, from United States v. Darby Lumber Co., reads as follows:

“The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.”

Since 1992, the Supreme Court has declared laws unconstitutional for violating the Tenth Amendment when the federal government compelled the states to enforce federal statutes.

In New York v. United States (1992), the Supreme Court invalidated part of the Low-Level Radioactive Waste Policy Amendments Act of 1985. The act provided three incentives for states to comply with statutory obligations to provide for the disposal of low-level radioactive waste. The first two incentives were monetary. The third, which was challenged in this case, obliged states to take title to any waste within their borders that was not disposed of prior to January 1, 1996, and made each state liable for all damages directly related to the waste. The Court ruled that imposing that obligation on a state violates the Tenth Amendment. Justice Sandra Day O’Connor wrote that the federal government can encourage the states to adopt certain regulations through the spending power (e.g. attach conditions to the receipt of federal funds, see South Dakota v. Dole,) or through the commerce power (directly pre-empt state law). However, Congress cannot directly compel states to enforce federal regulations.

In Murphy v. National Collegiate Athletic Association (2018), the Supreme Court ruled that the Professional and Amateur Sports Protection Act of 1992, which prohibited states that banned sports betting when the law was enacted from legalizing it, violated the anti-commandeering doctrine and invalidated the entire law. The Court ruled that the anti-commandeering doctrine applied to congressional attempts to prevent the states from taking a certain action as much as it applied in New York and Printz to Congress requiring states to enforce federal law.

See also United State v. Lopez, and Printz v. United States. [infra]

Congress’s Commerce Clause Power

In the 20th century, the Commerce Clause has become one of the most frequently used sources of Congress’s power, and thus its interpretation is very important in determining the allowable scope of the federal government. Complex economic challenges arising from the Great Depression triggered a reevaluation in both Congress and the Supreme Court of the use of Commerce Clause powers to maintain a strong national economy.

In Wickard v. Filburn (1942), in the context of World War II, the Court ruled that federal regulation of wheat production could constitutionally be applied to wheat grown for “home consumption” on a farm, i.e. fed to animals or otherwise consumed on the premises. The rationale was that a farmer’s growing “his own” can have a substantial cumulative effect on interstate commerce, because if all farmers were to exceed their production quotas, a significant amount of wheat would either not be sold on the market or would be bought from other producers. Hence, in the aggregate, if farmers were allowed to consume their own wheat, it would affect the interstate market.

In United States v. Lopez (1995), a federal law mandating a “gun-free zone” on and around public school campuses was struck down because, the Supreme Court ruled, there was no clause in the Constitution authorizing it. This was the first modern Supreme Court opinion to limit the government’s power under the Commerce Clause.

An interesting irony should not be overlooked when litigating the commerce clause issues if the Idaho Small Arms Act should come under review.  The 1968 Gun Control Act already makes it a crime to sell firearms across state lines, if the firearm would be illegal in the receiving state.  E.g., Although common and ordinary in Idaho, the AR-15 (in its most common configuration) is currently illegal to purchase in California.  The same with “off-roster” handguns that are legal for retail purchase in Idaho but are not on the “approved” list of handguns in California. 

The argument being this:  The AR-15 is not a source of evil in Idaho and has many benefits to our citizens.  Not the least of which is the full spectrum of self-defense rights protected by the Idaho Constitution.  If the federal government is speculating about the evil of AR-15s in other jurisdictions, their remedy is to enforce the laws already in the federal statute books, rather than impose new burdens on citizens and residents of Idaho.

Fourteenth Amendment

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The Fourteenth Amendment has a separate and distinct “due process” clause that requires states to comply with doctrines of fundamental fairness and comply with the limitations imposed by the Bill of Rights.

Idaho Constitution Section 11, Article 1

Section 11.  RIGHT TO KEEP AND BEAR ARMS. 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.

This is (or should be) self-explanatory.

United States v. Lopez, Jr., 514 U.S. 549 (1995), was a landmark case of the United States Supreme Court concerning the Commerce Clause. It was the first case since 1937 in which the Court held that Congress had exceeded its power to legislate under the Commerce Clause.

The case arose from a San Antonio high school student’s challenge to the Gun-Free School Zones Act of 1990 (part of the Crime Control Act of 1990), which banned possession of handguns within 1000 feet (305 meters) of a school. In a majority decision joined by four other justices, Chief Justice William Rehnquist held that Lopez’ possession of the gun was not economic activity and its scope was not sufficiently cabined, and so was outside the broad reach of the Commerce Clause. After the Lopez decision, the Gun-Free School Zones Act of 1990 was amended to specifically only apply to guns that had been moved via interstate commerce.

Lopez was the first case since 1937 in which the Court held that Congress had exceeded its power to legislate under the Commerce Clause. It raised serious questions as to how far the Court might be willing to go in implementing judicial safeguards against federal encroachments on state sovereignty. The precedent takes special significance in cases that the federal government attempts to limit private conduct. The decision sparked a lot of commentary focused on federalism.  For instance, Lawrence Lessig praised the decision as a revival of federalism jurisprudence. The argument can be made that the significant limiting of federal power is necessary to establish a greater threshold for governmental accountability and revitalizes the role of the states in public policymaking. It can also be ascribed to new legislation that makes open carry in schools legal in some Texas jurisdictions.

The case has been followed by the Supreme Court in limiting Congress’ power under the Commerce Clause in a 1999 case, United States v. Morrison, and under other enumerated powers in a 2001 case, Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (“SWANCC”).

Printz v. United States, 521 US 898 (1997)

Petitioners Sheriffs Jay Printz and Richard Mack, the Chief Law Enforcement Officers for Ravalli County, Montana, and Graham County, Arizona, represented by Stephen Halbrook and David T. Hardy respectively, filed separate actions challenging the constitutionality of the Brady Act’s interim provisions. They objected to the use of congressional action to compel state officers to execute Federal law.

 Section 1, (2)(b)

The powers granted to the U.S. Congress in Article I, Section 8, and in those amendments that purport to grant Congress power over the several states, are merely the means by which the federal government may execute its limited powers under that charter, and should not be construed to grant any power that would destroy the equilibrium of rights and powers that exists between the federal and state governments, and the people.

This subsection is a restatement of the 10^th Amendment’s Doctrine of powers being reserved to states and the people, from the perspective of the State of Idaho.  It is a reminder that the Second Amendment does not “preempt” the field of the “right to keep and bear arms” and that states are free to provide broader and more expansive protections of fundamental rights than the “baseline” rights enumerated in the Constitution and its Amendments.

Section 1, 2(c)

Specifically, the State of Idaho reserves to itself the power to protect the fundamental individual rights of its citizens and residents to any degree greater than is protected by the United States Constitution and its Amendments, and to do so in such a manner that this state and its citizens believe is necessary and proper to secure their safety and happiness.

Supreme Court case law supports the proposition stated above, that the U.S. Constitution sets a lower limit on our freedoms, and that a state can provide a greater degree of protection than that lower limit.  There are several examples in the Supreme Court case law of this legal theory for First Amendment and Fourth Amendment protection.  Idaho courts have repeatedly held that Article I §17 provides citizens with greater protection than that provided under federal law with respect to searches and seizures.

For example, in the case of Pruneyard v. Robins, the U.S. Supreme Court took up the issue of free speech on private property that is open to the public.  First Amendment law, as a baseline in the rest of the country, did not give people the right to exercise free speech in malls and shopping centers, because the owner of the mall or shopping center had both a first amendment and property right to exclude people he disagreed with.  

However, the California Supreme Court interpreted the “free speech” clause of the California Constitutional doctrine on free speech in a way that shopping centers and malls could NOT exclude speech on privacy property — that is open to the public.  In other words, the free speech rights of the people entering the private property were greater than the free speech and private property rights of the mall or shopping center owner.  In-other-words, states are free to provide more protection for constitutional rights, such as free speech, they are just not free to provide less without violating the First Amendment. 

See also: Florida v. Powell (coerced confessions, SCOTUS reversed the Florida Supreme Court, but only after finding that Florida law had failed to state that its policy rested on “independent and adequate” state constitutional protections.).  See also: Ariz. v. Evans. (“We believe that Michigan v. Long properly serves its purpose and should not be disturbed. Under it, state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution. They also are free to serve as experimental laboratories, in the sense that Justice Brandeis used that term in his dissenting opinion in New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (urging that the Court not impose federal constitutional restraints on the efforts of a State to “serve as a laboratory”). Under our decision today, the State of Arizona remains free to seek whatever solutions it chooses to problems of law enforcement posed by the advent of computerization. 3 Indeed, it is freer to do so because it is disabused of its erroneous view of what the United States Constitution requires.”) 

See also: Oregon v. Hass (“[A] State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards. See, e. g., Cooper v. California, 386 U.S. 58, 62 (1967); Sibron v. New York, 392 U.S. 40, 60-61 (1968). See also State v. Kaluna, 55 Haw. 361, 368-369, 520 P. 2d 51, 58-59 (1974). But, of course, a State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them. See Smayda v. United States, 352 F.2d 251, 253 (CA9 1965), cert. denied, 382 U.S. 981 (1966); Aftanase v. Economy Baler Co., 343 F.2d 187, 193 (CA8 1965).”) 

And finally: Cooper v. California (“Our holding, of course, does not affect the State’s power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so. And when such state standards alone have been violated, the State is free, without review by us, to apply its own state harmless-error rule to such errors of state law. There being no federal constitutional error here, there is no need for us to determine whether the lower court properly applied its state harmless-error rule.”) 

In many of these instances, the U.S. Supreme Court reversed the state court decision anyway, because the state court decision had relied on BOTH state law and federal law in making its decision.  Our proposed law is different because we are NOT purporting to interpret the Second Amendment.  We are saying the Second Amendment is irrelevant to how the “right to keep and bear arms” is interpreted under Idaho’s Constitution.  I would go so far as to say, that even if the Second Amendment was repealed, Idaho is still free to protect the possession of small arms by its citizens and residents.  

Section 1, (2)(d)

Included in that extra measure of protection, greater than what is afforded by the United States Constitution and its Amendments, is the Right to Keep and Bear Arms under the laws of Idaho and the Idaho Constitution. Any federal law, regulation, tax, license, permit, fee, or assessment that would impose an undue burden on exercising this fundamental right, is deemed to violate the Idaho Constitution.

This section applies the above case law in a way that is consistent with the majority opinion, authored by Justice Scalia, in the Heller decision. The primary purpose of the Small Arms Protection Act is protecting the right to keep and bear arms in Idaho, we must clearly set the stage for any litigation or constitutional challenges to improve the odds of prevailing.

Section 1, 2(e)

The people of Idaho have vested their legislature with the authority to regulate the manufacture, possession, exchange, and use of firearms within the borders of this state; said regulations being governed by the lower limits protected by the Second Amendment of the United States Constitution, but also augmented by the additional rights and privileges afforded under the Constitution and laws of the State of Idaho.

This is a clear statement reciting the Idaho Constitution’s protection of the right to keep and bear arms and the limited right of the state legislature to enact any laws related to that right plus a recitation that the Second Amendment is only a lower level of protection of this pre-existing right and it is the intent of the State of Idaho to expand upon that protection, not restrict it.

Section 1, 2(f)

The legislature of the State of Idaho strongly promotes responsible gun ownership in the tradition of its founding, its history, and based on the practical consequences of Idaho’s landforms.

This section is simply a clear statement from the Idaho legislature that this law should be interpreted in a manner that supports the right to possess firearms.  This section is primarily intended to assist any court with the interpretation of our statute. This section also sets forth the common-sense observation that Idaho’s gun policies take into account the unique history and geography of Idaho that supports those policies.  E.g., People living in remote, and sometimes inaccessible, places should not have their self-defense rights limited by the circumstances of people living in densely populated urban areas. Furthermore, our heritage of self-sufficiency in a beautiful but harsh environment is worth preserving in its own right.

Section 1, (3)(a)

As used in this section, “small arms” shall include, but not be limited to, any self-loading rifle, pistol, revolver or shotgun; any manually loaded rifle, pistol, revolver or shotgun; any semiautomatic firearm including any centerfire rifle, pistol and shotgun with a fixed magazine or detachable magazine.

A definition of “small arms” which is broad and expansive to include the common and ordinary firearms possessed by Idahoans to exercise their rights.  This definition includes these usual firearms regardless of how the firearms look because of added accessories.

Section 1, (3)(b)

The term “small arms” shall include, but not be limited to, any detachable magazine of any capacity. The term “small arms” shall not be limited by any design feature that does not convert a firearm into a machine gun as that term was defined by federal law on January 1, 2020.

Many states have been passing laws that ban certain firearm accessories such as magazines that have the capacity for a certain number of rounds of ammunition.  Furthermore, unless a “design feature” converts a firearm to a machine gun, as that term was defined on January 1, 2020, that design feature is protected under our law, and we wish to make clear that our law is not attempting to circumvent that federal definition.

 Section 1, (3)(c)

The definition of “small arms” shall also include ammunition for said arms, components for making ammunition, machinery, design plans, software, and tools for manufacturing small arms and their ammunition.

This section also protects ammunition and machinery and software for manufacturing the small arms that the statute is attempting to protect.

 Section 1, (3)(d)

As used in this section “federal action” shall include, but not be limited to, the acts of any federal agent or official, any enforcement of any federal executive order, the collection and enforcement of any federal tax, any agency order, any federal law, any federal statute, any federal rule, or any federal regulation issued, enacted, or promulgated on or after the effective date of this act.

This is a broad definition designed to cover any federal act which federal agents may attempt to enforce against the citizens of Idaho.

Section 1, (4)(a)

This “Small Arms Protection Act” is cumulative of Sections 18-3315A and 18-3315B of the Idaho Code. To the maximum extent possible this Act and §§ 18-3315A, 18-3315B shall be harmonized to provide the greatest possible protection to the rights and privileges of Idaho’s citizens and residents.

This section is intended to supplement, not replace, the prior provisions of Idaho Code sections 18-3315A and 18-3315B.  18-3315B imposes sanctions on a federal agent who may order a state agent to enforce assist the federal action described in Section (3)(d).

This section is different from Idaho Code section 18-3315A because it expands on the definition of “small arms” and provides a stronger constitutional foundation for protecting the rights of the citizens and residents of Idaho.  Furthermore, this new bill is unequivocal in its protection of “small arms” already owned by Idaho’s citizens, and not just those items that may be manufactured or sold in the future.  This new bill is designed to augment and expand on protections found in I.C. § 18-3315A.

This is different from Idaho Code section 18-3315B because it provides a stronger rationale for laws in Idaho that will protect a more expansive definition of the “right to keep and bear arms” and provided the foundation for that protection in the U.S. Constitution, which contains the only entity that can threaten those rights – the federal government. Furthermore, I.C. § 18-3315B is more of an enforcement provision (with penalties for state agents who attempt to order any other Idaho state agents to assist with the enforcement of federal action), rather than a substantive statement of how the Idaho Constitution is to be interpreted.  This new bill is designed to augment and expand on protections found in I.C. § 18-3315B.

Section 1, (4)(b)

Prohibition on enforcement. No official, agent, or employee of the state of Idaho, or a political subdivision thereof, shall be required to assist with any federal action, on or after the effective date of this act if said federal action is contrary to the provisions of Idaho statutory law or Section 11, Article I, of the Idaho Constitution.

State taxpayers should not be forced to assist with the enforcement of what the Idaho legislature sees as an infringement of their rights.

Section 1, (4)(c)

Any such official agent, or employee of the state, or political subdivisions, shall be immune from any liability, civil or criminal, for failure to assist with any such enforcement.

This section protects our state agents from lawsuits and from prosecution for failing to enforce federal laws which infringe upon Idahoans’ rights.  Inaction by a state official may be seen by those opposed to this law as the basis for a civil suit if a person is injured by a firearm.  Our state agents should not fear inaction because they may face civil liability or be prosecuted for some kind of criminal activity for their failure to act.

Section 1, (5)(a) and (b)  Challenges by the Attorney General

Challenges by the Attorney General. The Attorney General of Idaho shall challenge the enforcement of any federal action if contrary to any provisions of Section 11, Article I, of the Constitution of the State of Idaho, and any laws enacted under that Constitution.

Said challenge may be taken in any court within the state of Idaho for any federal action taken against any resident of the State of Idaho, including, but not limited to, a challenge to any federal law, regulation, tax, levy, fee, or stamp imposed on the items protected under this act.

These sections require that state funds be used to challenge the enforcement of any federal laws contrary to the expansive protection provided by the Idaho consitution with respect to the right to keep and bear arms.

Section 1, (6)  Right of Intervention

Right of intervention.  The legislature, by concurrent resolution, may appoint one (1) or more of its members who sponsored or co-sponsored this act in his (or her) official capacity, or if a member who sponsored or co-sponsored this act is no longer serving in the legislature, a current member, to intervene as a matter of right in any case in which the constitutionality of this act is challenged in state or federal court. The right of intervention shall only arise if the Attorney General declines to defend this act or defends the act on grounds that are inconsistent with its stated purpose. Furthermore, appointment of outside legal counsel to defend this act shall be at the sole discretion of the member appointed by the concurrent resolution and shall be conducted under existing rules and regulations for the employment of outside counsel, for cases when the Attorney General has a conflict of interest.

Additional authority for this language is found under current Idaho Code section 67-1406:

“(1)  The legislative and judicial branches of government and the governor may employ attorneys other than those under the supervision of the attorney general, and such attorneys may appear in any court. However, such entities may, upon request, utilize the attorney general’s legal services.”

Should the attorney general not challenge federal action under section (5)(a) and (b), then section (6) allows the legislative branch to exercise its power, as recited in Idaho Code section 67-1406 to employ another attorney chosen to intervene as a matter of right in any case

The right to intervene in this section refers to the ability of such an individual chosen by the legislature to act to hire outside counsel and defend this provision of the Idaho Code in any case filed against an Idaho citizen. 

Section 1, (7) Severability

Severability. The provisions of this section are hereby declared to be severable.  If any provision of this section or the application of such provision to any person or circumstance is declared invalid for any reason, such declaration shall not affect the validity of the remaining portions of this section.

Protects the rest of the bill in the event that any section or sub-section is found invalid.

Section 2   

 An emergency existing therefore, which emergency is hereby declared to exist, this act shall be in full force and effect on and after its passage and approval.

Federal action is expected at any time.  In order to protect the citizens of Idaho, it is imperative that this law be effective immediately.