October 29, 2013

Those who are unwilling to obey laws they dislike — unwilling to accept majority rule — and who despise or fear government, are attempting in various ways to prevent the enforcement of such laws. The right wing of the Republican Party in Congress, not content with opposing any measures designed to improve the economy or diminish inequality, shut down the federal government in a tantrum over health care, and may well do so again. Five counties in Maryland, eleven in Colorado and two in California, unhappy that the country no longer is rural, want to secede from their states and form new ones they can control. (That is not likely to go anywhere, as it cannot be done "without the Consent of the Legislatures of the States concerned as well as of the Congress."[102]) Nullification, the theory that states can avoid federal laws, has become an even more fashionable notion although it is less logical, having no constitutional basis.  

Nullification is advocated on the web, notably by The Tenth Amendment Center,[103] and by "Nullification Now" meetings.[104]  It has found its way into bills introduced in a number of states. Like so many fringe ideas, its potential for mischief outruns its coherence, so it cannot be ignored. What follows is an update of my note of February 18 on the phenomenon, and a preface to a more extended comment. 

Alaska has enacted a statute which, in its preamble, bravely declared that

a statute, regulation, rule, or order that has 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, or requiring the registration of any firearm or its ammunition . . . is not authorized by the Constitution of the United States, . . . and, consequently, is invalid in this state and shall be considered null and void and of no effect in this state . . . ."[105]

The operative section is at once bolder and more cautious than the preamble.

A federal statute, regulation, rule, or order . . . is unenforceable in this state by an official, agent, or employee of this state, a municipality, or the federal government if the federal statute, regulation, rule, or order violates the Second Amendment to the Constitution of the United States or art. I, sec. 19, Constitution of the State of Alaska, by (1) banning or restricting ownership of a semiautomatic firearm or a magazine of a firearm; or (2) requiring a firearm, magazine, or other firearm accessory to be registered. [106]

That in effect is a nullification, but without the preamble’s more provocative "null and void." It backs away from the recital in limiting the act’s effect to semiautomatic weapons, and the use of "if" introduces an ambiguity. However, it adds "restricting ownership," and the claim that a federal agent may not enforce a federal law which, unless it is mere rhetoric, sets up a confrontation. Perhaps as a means of avoiding that, the next section of the statute provides that

The attorney general shall, under the Second Amendment to the Constitution of the United States or art. I, sec. 19, Constitution of the State of Alaska, file legal action necessary to prevent the implementation of a federal statute, regulation, rule, or order that violates the rights of a resident of the state."[107]

Somewhat redundantly, but again ambiguously, the statute prohibits the use of state assets to implement "an order of the President of the United States, a federal regulation, or a law enacted by the United States Congress that is applied to . . . infringe on a person's right, under the Second Amendment to the Constitution of the United States, to keep and bear arms; . . ."[108]

The statute also declares that a

personal firearm, a firearm accessory, or ammunition that is possessed in this state or manufactured commercially or privately in this state and that remains in the state is not subject to federal law or federal regulation, including registration, under the authority of the United States Congress to regulate interstate commerce . . . .[109]

That language is taken from a model act known as the Firearms Freedom Act (FFA), which is based on a Montana law. It is making the rounds and has been enacted in several states.[110] In its model form [111] it does not purport to nullify federal laws, and in fact does nothing but express an opinion, although the Tenth Amendment Center treats it as a form of nullification.[112]  

In April, Kansas enacted a form of the Firearms Freedom Act which goes further. In its version, "It is unlawful for any official, agent or employee of the government of the United States . . . to enforce or attempt to enforce any act, law, treaty, order, rule or regulation of the government of the United States regarding a firearm, a firearm accessory, or ammunition that is manufactured commercially or privately and owned in the state of Kansas and that remains within the borders of Kansas."

Violation a felony. The threat to arrest a federal official risks a dramatic confrontation; it’s difficult to think that the Kansas legislature considered the implications of anything so irresponsible.

In addition, any federal law "which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas."[113] Like the corresponding Alaska statute, this is vague, but presumably Kansas will determine which laws fail the test.

Missouri passed a similar bill. Under it, any federal law in violation the Second Amendment "shall not be recognized by this state, shall be specifically rejected by this state, and shall be considered null and void and of no effect in this state."[114]  A federal agent who attempted to enforce such a law would be guilty of a misdemeanor. The bill was vetoed by the governor; an attempt to override failed by the narrowest of margins.

In August the Ninth Circuit rejected the premise of the Montana FFA and held that a firearm manufactured in Montana, intended to be sold only in Montana, and stamped "Made in Montana" is subject to federal licensing laws. The other attempts to nullify or avoid federal law should suffer the same fate, but one never knows.

In the next segment, I’ll address arguments in support of nullification.

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102. Constitution Article IV, Section 3
103. http://tenthamendmentcenter.com/
104. http://www.examiner.com/article/tom-woods-will-headline-nullify-now-nc-conference
105. http://www.legis.state.ak.us/basis/get_bill_text.asp?hsid=HB0069Z&session=28 106. Codified as AS 44.99.500(f)
107. AS 44.99.500(g)
108. AS 44.99.040. It also prohibits the use of state assets to implement the federal REAL ID Act of 2005, an odd addition to a gun-possession law.
109. AS 44.99.500(a)
110. See http://firearmsfreedomact.com/state-by-state/
111. http://firearmsfreedomact.com/model-version-of-ffa-legislation/
112.http://tenthamendmentcenter.com/2009/10/21/nullification-firearms-freedom-act-introduced-in-ohio/#.UkB4E4_n9T0