Arkansas Democrat-Gazette
Gov. Asa Hutchinson vetoed a bill Friday that would prohibit local and state police from working with federal authorities in the enforcement of certain federal gun laws that conflict with the Arkansas Constitution.
The legislation, Senate Bill 298, dubbed the “Arkansas Sovereignty Act of 2021” would declare federal gun laws and regulations “null and void” in Arkansas if they “infringe on the people’s right to keep and bear arms as guaranteed by the Second Amendment to the United States Constitution and Arkansas Constitution, Article 2, §5.”
The bill specifically declares “null and void” the National Firearms Act, which regulates machine guns and sawed-off shotguns, and the Gun Control Act of 1968, which Hutchinson said prevents “certain felons from possession of firearms.”
In a letter dated Friday to lawmakers explaining his decision, Hutchinson wrote that the bill “jeopardizes the essential partnership between state and federal law enforcement agencies,” in how they police gun crimes in Arkansas.
“The partnership between state and federal law enforcement officers is essential for the safety of Arkansas citizens,” Hutchinson wrote. “This bill will break that partnership and put the safety of Arkansans at risk.”
In an interview with the Arkansas Democrat-Gazette, Hutchinson spoke of his experience as a federal prosecutor and how federal gun laws were useful for prosecuting violent offenders. If SB298 were to become law, it would be a giveaway to defendants facing gun charges, Hutchinson said.
“It’s a defense attorney’s dream law,” Hutchinson said. “They’re going to have plenty of opportunities to challenge the charges based upon this.”
Supporters of the bill said it is a preemptive measure against any future gun-control measures that may come from the Biden administration.
While Congress has not passed any recent gun-control bills, conservative lawmakers in Arkansas said they are worried about an infringement of people’s Second Amendment rights under President Joe Biden.
“What this will do is — it will do nothing for actual criminals —but it will stop everyday citizens from becoming criminals,” Sen. Trent Garner, R-El Dorado.
Garner called the bill a “tool to allow local law enforcement to have a way not to enforce unconstitutional dictates from the federal government.”
Sen. Dan Sullivan, R-Jonesboro, downplayed criticism of the bill, saying, “We hear about every time we pass strong rights bill, we hear a concern.”
Garner and Sullivan said they expect the General Assembly to override the governor’s veto, perhaps as early as Monday.
The Republican lawmakers said they didn’t have an official tally of votes, but cited the ease in which the bill passed both chambers as an indication the Legislature likely will override the governor’s veto. The sponsor of the bill, Sen. Gary Stubblefield, R-Branch, could not be reached for comment Friday.
The bill passed the Senate 28-7 on March 31 and the House voted 76-18 to approve it on April 15. Only a simple majority vote in both chambers is needed to override the veto.
In the current regular session, which started in January, the Legislature has twice attempted to override a veto of Hutchinson’s. One attempt in early April was successful, on House Bill 1570, which prohibits medical treatment of transgender minors. In late March, lawmakers failed to override Hutchinson’s veto of a bill that would have required the state to refund fines paid by businesses that violated covid-19 restrictions. The override was Hutchinson’s first since becoming governor in 2015.
“Well, I mean I expect every time we pass something with a large majority and the governor disagrees, I expect we can [override] it,” Sullivan said. “I hope we can. We’ll just have to wait and see what the will of the Senate is, and the House.”
In the interview, Hutchinson also said it’s likely the Legislature overrides his veto but mentioned the bill likely will end up in federal court as it will become a constitutional issue.
“Clearly, whenever state law is trying to nullify federal law, there’s a constitutional issue there,” Hutchinson said.
Law enforcement officials and prosecutors have said they have concerns the bill could allow felons to walk free from federal gun crimes.
Federal statutes have stricter penalties for some gun crimes, such as possession of a firearm by a felon, that can be useful to lock away violent offenders, prosecutors said.
An amendment to the Gun Control Act of 1968 prohibits people convicted of a felony or who have a domestic-violence protective order “from possessing a firearm,” but that law would be “null and void” if SB298 becomes law.
While it still will be illegal for felons to possess a gun under Arkansas law, SB298 would take away local prosecutors’ ability to work with their federal counterparts on those cases, prosecutors said.
Often, prosecutors said, they prefer to send felony gun-possession cases to federal court where penalties for gun offenses are higher. Cases are also often sent to federal court when the defendant has a previous history of committing violent or gang-related crimes.
The Arkansas Prosecuting Attorneys Association sent a letter to state lawmakers Friday urging them not to override the governor’s veto because “the effect of the bill would be to empower criminals and undermine law enforcement efforts to keep Arkansans safe.”
Nathan Smith, the prosecuting attorney for Benton County and president of the group, said he supported the bill’s intent, even though “it’s harder to get more pro-Second Amendment than I am.”
However, he said, SB298 would make it easier for criminals to slip prosecution for illegal firearms.
“Having that cooperation with the federal government ensures that we get the best outcome for our community,” Smith said. “I don’t think people in Benton County, Ark., really care who prosecutes a case, so long as a criminal is out of their community.”
Cody Hiland, the former U.S. attorney for the Eastern District of Arkansas, said, “I understand concern related to federal overreach” on gun rights, but the bill goes too far.
“Unfortunately, far too often, legislation has unintended consequences,” Hiland wrote in a statement to the Arkansas Democrat-Gazette. “As currently drafted, I believe that is the case here. I am concerned SB 298 will have a significant, negative impact on the invaluable partnership with state and local law enforcement and to current and future prosecution of repeat, violent criminals in federal court.”
If SB298 is enacted, local and state law enforcement officers who cooperate with federal gun-law investigations in Arkansas would be subject to criminal and civil penalties. They could be fined up to $500 for each offense and subjected to monetary damages, according to SB298.
Those penalties could hurt pending cases, prosecutors said, as local and state law enforcement officials may be unwilling to testify in federal gun cases.
Arkansas Sheriffs’ Association President Scott Bradley told lawmakers in a March hearing on the bill that it would hurt local law enforcement agencies’ relationship with their federal partners.
“We depend on our federal partners to chase people down in other states,” Bradley said. “We do a lot of good work with them.”
Information for this article was contributed by John Moritz of the Arkansas Democrat-Gazette.