Gov. Chris Sununu will soon need to decide whether to sign a bill to prevent New Hampshire law enforcement agencies from cooperating with federal agencies over enforcement of federal firearms laws. But exactly how the law might be applied — and how it might affect a firearms regulation package being negotiated in Washington — has been hotly debated in recent weeks.
Gun safety advocates and Democrats say the bill could undermine New Hampshire efforts to provide information to federal agencies determining who can purchase a firearm. And some, including the New Hampshire State Police, raised concerns that it could interfere with domestic violence protective orders.
Firearms advocates have praised the bill as a first step toward pushing back at perceived federal encroachment. But some of them say the bill does not go far enough and includes too many exceptions.
And few know how New Hampshire law enforcement would respond to the proposed law in practice.
Close look at NH legislation
House Bill 1178 prevents any state or local government from using resources to take action “to enforce, administer, or cooperate with” federal firearms laws that don’t exist in New Hampshire law. The bill applies to any “law, act, rule, order, or regulation” of the U.S. government and applies to any federal laws or rules relating to firearms, ammunition, magazines, ammunition feeding devices, firearms components, firearms supplies, or knives.
The bill, which cites Part II, Article 5 of the New Hampshire Constitution – the state’s right to bear arms – would apply that prohibition to “any person acting under the color of state, county, or municipal law.”
“HB 1178 would apply to any current federal laws, regulations, rules, or executive orders, as well as any in the future, making it harder to protect our schools and communities from gun violence,” said Granite State Progress, an advocacy group, in a statement. “It would also send a dangerous message to criminals that New Hampshire does not enforce federal gun laws.”
But the bill also contains exceptions. Under the bill, state or local law enforcement agents are allowed to cooperate in federal firearms investigations or arrests as long as there is a “reasonable suspicion” that that person has committed or is about to commit an additional offense not tied to a federal firearms rule or law. That exception includes any state law or a federal law that does not apply to firearms.
The exception means that New Hampshire State Police could assist in an operation by the Bureau of Alcohol, Tobacco, Firearms, and Explosives or the FBI against a New Hampshire resident with an illegal modification to their firearm, provided that they were suspected of doing something else illegal in the state, such as trespassing or firearms trafficking.
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Firearms rights groups argue that that caveat is broad, and means that State Police and other agencies would be able to participate in many federal investigations or arrests.
“There are very rarely going to be circumstances where there is a federal law enforcement activity occurring, criminal law enforcement activity occurring, where state and local officials are going to be prevented from cooperating,” said Sean List, an attorney with Lehmann Major List, PLLC and a firearms rights advocate.
“If someone is illegally selling machine guns … we don’t have a state law that says you can’t sell machine guns, but that’s probably a pretty bad dude,” he added. “And we can very easily figure out an articulable suspicion that this individual is also violating state law.”
Instead, supporters of the legislation say the law would more likely limit state officials from helping the enforcement of federal rules from the ATF or presidential executive orders.
One example is a rule passed by the Trump administration’s ATF in 2018 that would ban “bump stocks,” the devices that allow semi-automatic firearms to fire continuously, like a machine gun. That component was used during a deadly mass shooting in Las Vegas that killed 59 people in 2017. The ATF and the U.S. Attorney General’s Office used the federal statute banning machine guns and applied it to bump stocks; that rule has been upheld by the U.S. Circuit Court after legal challenges.
Under HB 1178, state law enforcement agencies would not be able to help the ATF or FBI arrest someone who had modified their firearm with a bump stock, unless other laws were broken.
Supporters of HB 1178 say it could stop state and local cooperation with other rules passed by the Biden administration, including one passed in January that requires gun storage devices to be compatible with the firearms they are sold with. Another proposed federal rule that has not been finalized would bar most stabilizing braces for handguns; gun safety advocates say they allow users to more easily target victims, while gun rights groups counter that they allow disabled veterans to continue to shoot pistols recreationally.
And in April, the White House announced a new rule that would ban the manufacture of “ghost gun” kits that allow unauthorized people to buy firearms without serial numbers.
State and local officials could be encumbered from helping enforce all of those rules under HB 1178.
Federal rules do not require congressional support and are more easily ushered through than bills. U.S. senators are negotiating a bipartisan package this year following a school shooting in Uvalde, Texas, that would include financial incentives for states to create “red flag” laws to allow firearms to be temporarily seized from people perceived to be a danger; a closure of the “boyfriend loophole” that allows a person found guilty of domestic violence against an unmarried partner to continue to have a firearm where a married person could not; and more stringent mental health record reviews for people under 21 seeking to purchase firearms.
It is unclear to what extent HB 1178 could interfere with that legislation. Beyond a general framework, the details released by the senators leading the legislation, Democrat Chris Murphy of Connecticut and Republican John Cornyn of Texas, have been sparse.
As HB 1178 passed through multiple rounds of negotiations in the House and Senate, gun safety groups raised alarms that the bill could hamper the ability of State Police to pass on critical criminal and civil domestic violence information to the National Instant Criminal Background Check System, which governs whether firearms retailers can sell customers a gun. Under federal law, people convicted of a misdemeanor crime of domestic violence are not allowed to possess firearms, a requirement that applies only to felony domestic violence convictions in state law.
The bill now includes a caveat that “nothing in this chapter shall prohibit the judicial branch from entering protective order information into law enforcement databases.” The measure was added by the Senate after pressure.
Gun safety advocates, firearms rights groups both press Sununu
Still, gun safety advocacy groups remain critical of the bill.
“Right now, advocates across the country and here in New Hampshire are calling for real, meaningful action that will address the gun violence crisis we’re facing, and this bill will do nothing to keep us safe,” said Deirdre Reynolds, a volunteer with the New Hampshire chapter of Moms Demand Action, in a statement to the Bulletin. “The last thing we need right now is a policy that would inhibit state law enforcement officials’ ability to protect our communities and undo years of effort to combat the gun violence crisis in New Hampshire. Governor Sununu must stand up for our safety and veto this dangerous legislation.”
Meanwhile, some firearms rights supporters in the state say the broad caveats make it far less useful for what they’re hoping for: a state check on federal firearms legislation. New Hampshire’s bill allows federal enforcement actions to proceed but prevents some cooperation from state and local authorities; other states, such as Missouri, have passed legislation that declares all federal firearms laws invalid and attempts to bar federal enforcement of those laws. That law is being challenged in federal court by the Biden administration’s Department of Justice.
Elliot Axelman, a conservative Republican who ran unsuccessfully for a Hooksett House seat in a 2020 special election, said he would rather the caveats in Section Two allowing for some law enforcement cooperation be removed. Otherwise, he argued, “the bill does nothing.”
“Passing this with Section Two would be a waste of time, energy, and paperwork,” Axelman said.
List says he’s in the middle of the two groups – the advocates who say it goes too far and those who say it isn’t enough.
“I understand why people are concerned about what Section Two does,” he said. “Frankly, I think that this bill is a good start to a longer conversation. But I think that the concerns that people have, thinking it’s broad in scope are misplaced.”
This story was originally published by New Hampshire Bulletin.