Many states have passed laws that are not in line with the laws passed by Congress. Some have gone so far as to pass laws that are in direct contravention to federal laws such as Washington and Colorado by legalizing marijuana. Many others like Idaho, Georgia and Arizona have passed or are passing laws that attempt nullification of federal gun laws in their territories. While Jefferson and Madison both repeated stated that nullification was a state right, it has never been tested at the federal courts.
States were empowered in the Constitution, and our founding fathers wanted state governments, not the federal government to be the centers of power in this country. That said, they felt strongly enough about a few things to codify them across the country for all citizens and we call that the Constitution and the Bill of Rights. One key part of this argument is Article 6 of the Constitution, or the supremacy clause, which basically says federal laws are supreme. There are some exceptions for intent, unintended consequences and few other exemptions. The specific case against “nullification” was decided in 1859 by Wisconsin over enforcement of the fugitive slave act.
The short version of the answer to the question of “can states legally pass a law resulting in the nullification of federal gun laws” is “no”. States do no have the power to nullify federal laws that are constitutional in nature. The follow up is that they cannot be forced to enforce federal laws regardless of the nature – nor can they stop federal agents in the performance of their duties. Ultimately, if states refuse to enforce a federal law – it effectively becomes irrelevant inside their territory due to the lack of enforcement. The entire Department of Homeland Security and the Department of Defense would hardly come close to the number of sworn law enforcement officers in nearly each and every state in the union. Colorado, Washington and the rest of the marijuana states are prime examples. The DEA will be hard pressed to fight all but very major trafficking cases without the support of local law enforcement.
Many gun control advocates don’t like the answer that “No – states don’t have the power to legally nullify federal law”. Many even grasp at straws to push the line of thinking that they could. In 1803 Marbury V. Madison established the Supreme Court as the final point for judicial review. In theory, their job is to act as the arbiter of the federal constitution, and as such, the federal constitution will be the arbiter of all laws of the nation – to include state laws. States will always have the right to appeal federal laws to the Supreme Court if they believe it to be unconstitutional. Legally, the concept that states can nullify a federal law doesn’t hold water. From a practical standpoint, perhaps they can simply decide not to enforce it, and see where the government decides it is willing to draw the line.
Here are my thoughts on nullification and federal gun laws. Even if enacted, nullification would cut both ways. Washington D. C. and Chicago and San Diego would still have their unconstitutional gun bans in place if it were not for the federal courts. It is through the federal courts that the Second Amendment must be adjudicated.
Guns and gun laws are a constitutional (Federal) right. It is Congress that must pass the laws necessary to defend citizens’ rights to own firearms in the country, as well as define any limits on that right. States do not have, and never have had, the power to supersede the federal government on constitutional issues. In theory, on non-constitutional issues, the federal government has no ability to force states to adopt federal programs, etc… However, we need only look to federal funding priorities for education, highways and national parks to see how effective non-compliance is, or how incompetent the federal government is at managing, well anything…
Regardless, guns are being fought at the state and even local level as a piecemeal approach to make it “just too hard”. It’s effective, and in places it is working. That is what Congress needs to be called upon to rectify. Hopefully we will displace much of this dysfunctional house and senate in the next cycle. 2016 is the next real chance we have to put an end to this approach. Nullification is effectively an expression of displeasure at the tone of the political debate in Washington. I sincerely hope that it garners enough attention to get voters to hold lawmakers accountable, as that is how we will be effective!
~ Patrick Henry
#nullificationoffederalgunlaws, #guncontrol, #gunlegislation