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Texas H.B. No. 553


I don’t know if this will be a problem by my fellow Texas legislator but here it is: Before I post it here I love being a Texan.

Guns, guns, guns

Guns, guns, guns (Photo credit: paljoakim)

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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