Bill Text: TX HB553 | 2013-2014 | 83rd Legislature | Introduced


Bill Title: Relating to firearms and the preservation of the Second Amendment to the United States Constitution; providing penalties.

Status: (Introduced - Dead) 2013-03-13 - Left pending in committee [HB553 Detail]

Download: Texas-2013-HB553-Introduced.html
 
 
  By: Otto H.B. No. 553
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to firearms and the preservation of the Second Amendment
  to the United States Constitution; providing penalties.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
  SECTION 1.  SECTION 1.  (a) This Act shall be known as the "Second
  Amendment Preservation Act."
         (b)  The Legislature of the State of Texas hereby finds:
               (1)  Article IV, Clause 2 of the United States
  Constitution provides: "This Constitution, and the laws of the
  United States which shall be made in pursuance thereof . . . shall
  be the supreme law of the land."
               (2)  The Kentucky Resolutions of 1798, and 1799 -- that
  State's official response and opposition to the federal
  government's Alien & Sedition Acts, which criminalized speech
  critical of the federal government in a clear violation of the First
  Amendment -- were authored by Thomas Jefferson, and provide in
  part:
         Resolved, That the several states composing the United
  States of America, are not united on the principle of
  unlimited submission to their general government; but
  that by compact, under the style and title of a
  Constitution for the United States, and of amendments
  thereto, they constituted a general government for
  special purposes, delegated to that government certain
  definite powers, reserving, each state to itself the
  residuary mass of right to their own self-government;
  and that whensoever the general government assumes
  undelegated powers, its acts are unauthoritative,
  void, and of no force: That to this compact each state
  acceded as a state, and is an integral party, its
  co-states forming as to itself, the other party: That
  the government created by this compact was not made the
  exclusive or final judge of the extent of the powers
  delegated to itself; since that would have made its
  discretion, and not the Constitution, the measure of
  its powers; but that, as in all other cases of compact
  among parties having no common judge, each party has an
  equal right to judge for itself, as well of
  infractions, as of the mode and measure of redress.
         (1798)
         That the principle and construction contended by
  sundry of the state legislatures, that the general
  government is the exclusive judge of the extent of the
  powers delegated to it, stop nothing short of
  despotism, since the discretion of those who
  administer the government, and not the Constitution,
  would be the measure of their powers: That the several
  states who formed that instrument being sovereign and
  independent, have the unquestionable right to judge of
  its infraction, and that a nullification by those
  sovereignties, of all unauthorized acts done under
  color of that instrument, is the rightful remedy.
  (1799)
               (3)  The Tenth Amendment to the United States
  Constitution provides: "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."
               (4)  The Ninth Amendment to the United States
  Constitution provides: "The enumeration in the Constitution, of
  certain rights, shall not be construed to deny or disparage others
  retained by the people."
               (5)  The Second Amendment to the United States
  Constitution provides: "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."
               (6)  That all federal acts, laws, executive orders,
  agency orders, and rules or regulations of all kinds with the
  purpose, intent, or effect of confiscating any firearm, banning any
  firearm, limiting the size of a magazine for any firearm, imposing
  any limit on the ammunition that may be purchased for any firearm,
  taxing any firearm or ammunition therefore, or requiring the
  registration of any firearm or ammunition therefore, infringes upon
  Texan's right to bear arms in direct violation of the Second
  Amendment to the Constitution of the United States, and therefore,
  any such law is not made in pursuance of the Constitution, is not
  authorized by the Constitution, and thus, is not the supreme law of
  the land, and consequently, is invalid in this State and shall be
  further considered null and void and of no effect in this State.
         SECTION 2.  Chapter 46, Penal Code, is amended by adding
  Section 46.16 to read as follows:
         Sec. 46.16.  Second Amendment Shall Remain Inviolate;
  Offences; Penalties.
         (a)  A person who is a Peace Officer, State Officer, or State
  Employee commits an offense if the person, while acting under color
  of the person's office or employment, intentionally enforces or
  attempts to enforce any acts, laws, executive orders, agency
  orders, rules or regulations of any kind whatsoever of the United
  States government relating to confiscating any firearm, banning any
  firearm, limiting the size of a magazine for any firearm, imposing
  any limit on the ammunition that may be purchased for any firearm,
  taxing any firearm or ammunition therefore, or requiring the
  registration of any firearm or ammunition therefore.
         (b)  A person who is a public servant commits an offense if
  the person, while acting under color of the person's office or
  employment, intentionally enforces or attempts to enforce any acts,
  laws, executive orders, agency orders, rules or regulations of any
  kind whatsoever of the United States government relating to
  confiscating any firearm, banning any firearm, limiting the size
  of a magazine for any firearm, imposing any limit on the ammunition
  that may be purchased for any firearm, taxing any firearm or
  ammunition therefore, or requiring the registration of any firearm
  or ammunition therefore.
         (c)  For purposes of Subsections (a) and (b):
               (1)  "Firearm" is defined at Penal Code §46.01; "Peace
  Officer" is defined at Government Code §614.001; and "State
  Officer" and "State Employee" are defined at Government Code §
  572.002.
               (2)  "Public servant," includes an officer, employee,
  or agent of the United States; a branch, department, or agency of
  the United States; another person acting under a contract with a
  branch, department, or agency of the United States to provide a law
  enforcement or security service; or any other person acting under
  color of federal law.
               (3)  A person acts under color of the person's office
  or employment if the person acts or purports to act in an official
  capacity or takes advantage of such actual or purported capacity.
               (4)  It is a defense to prosecution for an offense
  under Subsection (b) that the person performed the act consistent
  with an explicit and applicable grant of federal statutory
  authority that is consistent with the United States Constitution.
         (d)  An offense under Subsection (a) is a Class B
  misdemeanor punishable by confinement for a term not to exceed 180
  days, a fine of not more than $5,000, or both the confinement and
  the fine.
         (e)  An offense under Subsection (b) is a Class A misdemeanor
  punishable by confinement for a term not to exceed one year, a fine
  of not more than $10,000, or both the confinement and the fine.
         SECTION 3.  (a) This section applies only to a prosecution
  of an offense under Section 46.16 Penal Code, as added by this Act,
  in which the defendant was, at the time of the alleged offense,
  acting under the color of federal law.
         (b)  If the government of the United States, the defendant,
  or any other party challenges the validity of Section 46.16, Penal
  Code, as added by this Act, on any grounds including
  unconstitutionality, preemption, or sovereign immunity, the
  Attorney General of Texas with the consent of the appropriate local
  county or district attorney, as necessary, shall take any and all
  actions required on behalf of the State to defend the validity of
  the statute.
         SECTION 4.  This Act shall be construed, as a matter of
  state law, to be enforceable up to but no further than the maximum
  possible extent consistent with federal constitutional
  requirements, even if that construction is not readily apparent,
  as such constructions are authorized only to the extent necessary
  to save the statute from judicial invalidation.
         SECTION 5.  Every provision in this Act and every
  application of the provisions in this Act are severable from each
  other as a matter of state law. If any application of any provision
  in this Act to any person or group of persons or circumstances is
  found by a court to be invalid, the remainder of this Act and the
  application of the Act's provisions to all other persons and
  circumstances may not be affected. All constitutionally valid
  applications of this Act shall be severed from any applications
  that a court finds to be invalid, leaving the valid applications in
  force, because it is the legislature's intent and priority that the
  valid applications be allowed to stand alone. Even if a reviewing
  court finds a provision of this Act invalid in a large or
  substantial fraction of relevant cases, the remaining valid
  applications shall be severed and allowed to remain in force.
         SECTION 6.  REPORT. The Texas Department of Public Safety
  shall immediately report to the governor, attorney general, and the
  legislature any attempt by the federal government to implement or
  enforce any law in violation of this Act through the Texas
  Department of Public Safety, or any another state or local law
  enforcement agency.
         SECTION 7.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution. If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2013.
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