Impact of state firearms law on federal firearms package unclear

President Biden signed a package of firearms regulations last month, a rare example of bipartisanship hailed by gun safety advocates. 

But just how smoothly the federal act will roll out in New Hampshire is unclear. A new state law, House Bill 1178, bars state and local officials from helping to enforce federal firearms laws unless those laws also exist in state law. 

Advocates and state officials are not sure whether the new state law will affect the federal legislative package, but many are watching closely.

“Our attorneys at the Department of Safety are working with the Attorney General’s Office to look at how we are doing our background checks today and how this might be affected,” said Robert Quinn, commissioner of the Department of Safety, at a press conference last week. 

Quinn said the departments were examining the two laws “to make sure that they don’t conflict with one another.” Quinn said he hasn’t identified any conflicts so far. 

The federal package creates new incentives for states to pass “red flag laws,” which allow courts to quickly issue temporary firearms confiscation orders for people deemed to be a threat to themselves and others. It adds additional mental health background checks for purchasers of firearms between 18 and 21 years old. It closes the “boyfriend loophole” by prohibiting the sale of firearms to people who are convicted of domestic violence against partners, even if they aren’t married and don’t live together. And it devotes more than $300 million toward school safety programs

HB 1178, meanwhile, prohibits state or local public entities from “using any personnel or financial resources to enforce, administer, or cooperate with” federal laws or administrative rules. The bill does allow for cooperation if New Hampshire statute includes equivalent firearms laws or if the target of the investigation is suspected of committing other crimes. And it does explicitly allow the state’s judicial branch to share information about protective orders, such as domestic violence protective orders, with federal departments – a necessary process to improve the federal background check system. 

In comments to the Executive Council on June 28, Attorney General John Formella did not comment on whether the new state law posed any conflicts, but he said the Department of Justice had determined it is constitutional. 

“(The law) doesn’t say that a federal firearms law that’s inconsistent with state law isn’t in effect or enforceable in New Hampshire,” he said. “It just says that state and local government agencies are not to assist the federal government in the enforcement of those types of laws.” 

Formella said the Department of Justice would be working with state agencies on how to interpret the new state law. 

“I do believe it’s constitutional,” he said. “I do believe though that we need to provide guidance to state and local agencies on how to implement this, which we will be working on putting out.” 

Proponents and opponents of gun regulation have offered different interpretations of HB 1178. Critics have said the bill could hamper state officials’ ability to keep the FBI aware of domestic violence incidents for the purpose of firearms background checks, and that it would block school officials from enforcing the Gun-Free School Zones Act of 1990, which bars unauthorized people from knowingly carrying firearms on school property. 

“The real concern is (for) an administrator here, if there was an active shooter or a person with a firearm on school grounds that they felt was a threat, there’s no state laws that they’re enforcing,” said Jim O’Shaughnessy, an attorney for school districts with Drummond Woodsum. “There’s no state law prohibiting guns on school grounds. Presumably there’s no town ordinance preventing guns on school grounds, because (RSA) 159:26 prohibits that. And if this law passes, we basically have to ignore the existence of the federal law, and they’re left with really nothing.” 

Supporters of the bill say it has carved out exceptions to allow for the sharing of domestic violence records, and say the Gun-Free School Zones Act has not been enforced by schools in the state. 

New Hampshire State Police officials gave differing assessments of the bill as it moved through the legislative process. During a hearing – and before lawmakers added more exemptions – State Police Capt. Victor Muzzey testified that the state law could interfere with the sharing of domestic violence records, and could have an impact on the state’s ability to benefit from federal funding. 

Last week, Quinn, whose department includes the State Police, said the department no longer has immediate concerns. 

How much New Hampshire benefits from the funds in the federal bill is an open question, too. Gov. Chris Sununu has been opposed to the creation of red flag laws in New Hampshire, vetoing a bill to do so in 2020 after arguing it would create due process concerns for people whose firearms were removed. But red flag law adoption is not the only way states can receive funding. Because of a compromise negotiated by congressional Republicans, the final bill also provides funding to states that don’t have red flag laws, allowing those states to accept funding if they have mental health crisis intervention programs unrelated to firearms regulations.

Sununu said the state would be interested in applying for the funds, but so far there are no concrete plans to do so. “I would imagine so, sure,” he said at a June 29 press conference. “If there’s federal funding available to deal with mental health and interdiction, of course we’re going to help with that.”

The governor said the Attorney General’s Office would be examining whether the state could apply for the grants. But he said there wouldn’t be immediate answers. 

“That bill just passed,” he said. “Like anything with Congress, a bill passes and then they gotta create all the rules around it. So we don’t even know the rules to be able to assess. … It could be months before we really get decisive determinations about what those grant programs might look like, who qualifies, how they’ll potentially work.”