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