Gun Control and Federalism; Why Arguments Against State Nullification are Wrong

Timothy Birdnow

Here is a particularly annoying and misinformed editorial in the Daily Caller by editor Gregg Re.

Re takes umbrage with state efforts to ban enforcement of Federal gun control measures, claiming that those trying to protect the Second Amendment are ignoring the rest of the Constitution.

After listing a litany of bills designed to rein in Federal overreach, Re asks:

"You might be wondering how all these initiatives square with the Supremacy Clause, which states that enforceable, constitutional statutes passed by the federal government trump all conflicting state laws, with the Supreme Court having the final word on the constitutionality of state laws. What’s the secret constitutional sauce that everyone’s been missing, then — the one that prohibits the federal government from unilaterally taking any enforcement action within a state, and effectively subjugates all legitimately enacted federal laws to the whims of state officials?

The Supremacy Clause says:

Article VI, Sec.2:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

It is upon this rock that Re builds his entire case, arguing that this essentially grants unlimited power to the United States in all forms to abrogate state law.

And, since Article Six is in the main body of the Constitution, Re assumes it means that any and all subsequent state laws are subject to any and all Federal decisions.

Re forgets that there are SEVERAL amendments to the Constitution that are applicable and overshadow the Supremacy Clause. The Bill of Rights are amendments, not merely laws put in place that are complementary to the main body of the text. An amendment actually alters the document.

The Preamble of the Bill of Rights states:

"THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.".

The pertinent amendments are:

Amendment II

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.

Amendment X

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.

I am not sure where this is unclear to Mr. Re; an amendment trumps the original text, and two amendments are pertinent to this discussion. Congress has no authority to pass laws infringing the right to keep and bear arms, and states and the People reserve all power not expressly granted the United States.

Mr. Re argues that this is not the case:

"Putting aside the question of whether this “ancient principle” exists anywhere but Marbut’s head, it is inarguable that the 21st Amendment conflicted with the 18th Amendment, because it literally stated that it was invalidating the 18th Amendment. What conflict is there between the Supremacy Clause and later constitutional provisions? Marbut has an answer:

Marbut: “Under [our] claim, the Supremacy Clause would be in conflict with the Tenth Amendment. Since the Tenth Amendment was enacted subsequent to the Supremacy Clause, the Tenth Amendment must prevail as the most recent expression of the enacting authority. Thus the Tenth Amendment actually amended and changed the import of the Supremacy Clause. See the recent and unanimous decision of the US Supreme Court in Bond v. US.”

The suggestion that the Tenth Amendment invalidates the whole of the Supremacy Clause has never been upheld by any federal court, much less the Supreme Court."

Nobody is arguing it does, but the Second Amendment certainly invalidates gun control legislation at the Federal level and the Tenth Amendment makes it quite plain that there are usurpations of authority that can be annulled by state law.

In point of fact, there was and is a legal principle that exists that makes that very case; it's called Nullification. Nullification is the legal theory (predicated on the Tenth Amendment) that says a state may nullify federal law within its jurisdiction. In an historical context Both James Madison and Thomas Jefferson argued that states have the right to nullify Federal law in cases where the government overstepped its bounds. (See the Virginia and Kentucky Resolution 1798).

And it was on this basis that South Carolina nullified the protective tariff of 1828  which led to Andrew Jackson's call for the Force Act to compel South Carolina to obey. The state legislature rescinded the nullification of the tariff, but then nullified the Force Act. Neither Congress nor the Courts stepped in to dispute this action by South Carolina, thus establishing a legal precedent.

(Interestingly enough, Nullification is not limited to state legislatures; Juries and Grand Juries have the legal authority to nullify laws at their whim, although they are generally not tipped off to that power.)

If this legal precedent is somehow not legitimate because of the Supremacy Clause, then one must ask another question; where did the Supreme Court get the authority to determine the Constitutionality of laws?  Mr. Re makes a point of that in the quote posted above, yet on what basis does the SCOTUS act? A thorough study of both the original text of the Constitution and the subsequent amendments show absolutely no authority to do this whatsoever. On the contrary, the Tenth Amendment suggests states themselves hold the right to determine if a law is Constitutional or not.

The Supreme Court gave itself the authority. In Marbury v. Madison  the Court ruled it had the right to rule on such matters. The failure of Congress to act to rein in the Court set a legal precedent that has now metastasized into an imperial Judiciary, but it is nowhere to be found in the primary legal document defining the powers of the central government. The Constitution was SUPPOSED to exactly enumerate powers enjoyed by the separate branches of government, and it could be argued that the entirety of all legal rulings by the SCOTUS are illegal. That there has been a consensus of opinion that the Courts hold this authority should be immaterial, as this is in fact still just opinion. Theoretically Congress could overturn the Supreme Court should it wish.

It should be pointed out that most of the rulings granting draconian powers to Congress over the states have been issued in the last sixty years. The exercise of Federal power has exploded in that time, thanks to a runaway Court, an imperial Presidency, and a Congress that is happy to use the treasury to buy and secure votes.

Also, one must ask if the Executive Branch has the legal authority to trump state law when issuing Executive Orders. He is not a lawmaker, but a law enforcer, or is supposed to be. The Tenth Amendment should have long ago ended this particular reign-of-terror, but the Court, jealous of Federal power, has upheld the notion that any branch of government trumps state authority on any occasion. This could and should have been stopped at the state level long ago, but the withholding of monies collected from the states blackmailed governors and state legislators. This is a battle that should have been fought. It is now time to do so.

Mr. Re continues;

"It would be far more economical for these conservatives to simply announce that they will not comply with federal laws, and it would be significantly more logical to wage thoughtful, targeted legal challenges at specific gun-control regulations or even the president’s suitability for office, rather than federal authority generally."

Perhaps he does not realize we have been doing this for fifty years with abysmal results. We are asking the entity that is imposing its own authority over us to restrict that authority. It just isn't going to work that way. Why does Mr. Re think we will have any sort of success doing the same thing yet again? Insanity is doing the same thing over and over and expecting different results. We have reached a tipping point, and the only way we can hope to rein in Federal power is by nullification at the state level. The states are all that is left to oppose the Leviathan in Washington.

Re continues;

"They unconstitutionally and irresponsibly deny the federal government all practical authority, instead of following the Constitution’s built-in checks against federal government overreach, such as the impeachment or amendment processes, or the federal courts of appeal."

Does he not understand that one of those very checks is the relative autonomy of state government? That is the meaning of Federalism; a balance between the power of the state and central governments. The Tenth Amendment was added for the very purpose of restricting the overreach of the central authority. The legislators who are acting to nullify federal law are doing precisely what the Founding Fathers intended; act as a check on an imperial power grab. The United States was established with strong state governments with just this in mind.

Mr. Re concludes:

"By supporting people like Marbut and his ideas, elected, pro-gun Republicans across the country careen from showmanship to brinkmanship. They have unfortunately left nothing to the imagination — except, of course, how people so contemptuous of the country’s founding principles could possibly have been elected in the first place."

My question is, how could someone so ignorant of the country's founding principles so gleefully and aggressively attack those who know more than they.

. Read more from Tim and friends at www.tbirdnow.mee.nu