Gun rights and nullification

[TanklessPro]

Mods please move if needed.
Posters please keep this in relation to gun rights.

With the recent laws in Colorado and Washington allowing the recreational use of drugs, I have thought of an interesting idea. The Feds have basically said that they could not do anything about the laws in said states, which makes said activity legal.
Could a state pass a law that would nullify the gun laws of 1968 and 1934? By doing this it allow a business to sell a firearm without an FFL, no form 4473, and a buyer could purchase a NFA item without a waiting period.
I know it would be a long shot for a state to pass a nullification law,but I'm just thinking.......

 

[pseudonymity]

Not such a long shot at all. I am not sure why the FFA is not much better known in pro-2A groups.

http://firearmsfreedomact.com/

 

[tomrkba]

It all depends upon the state's willingness to do violence against Federal law enforcement agents. So far, no state has stepped up. We will see if this trend continues as gun control, ObamaCare and other programs steamroll over people.

 

[gojuice101]

I remember a couple of states talked about doing just that, and several even drafted bills that nullified federal gun laws in the state. I don't think any of them went anywhere though.

I know the Firearms Freedom Act was similar, aimed at weapons manufactured in a specific state. However, I think that excluded autos, so it doesn't bypass all the gun control acts.

 

[patmccoy]

The only true nullification comes from the jury box. Serve if you get a chance.

 

[Nom de Forum]

So far during the history of the United States of America attempts at nullification have not been successful. Historically its most well known proponent was John C. Calhoun. People promoting nullification should be prepared to lose a civil war and endure the consequences of reconstruction. That is what happened to them once before.

 

[Sam1911]

We have discussed such laws fairly extensively: http://www.thehighroad.org/showthread.php?t=463517

http://www.thehighroad.org/showthread.php?t=696034

http://www.thehighroad.org/showthread.php?t=693429

Essentially, the federal government holds supremacy over the states where state and federal laws conflict. A state may say that they have no prohibition against an act or possession, and will not enforce laws against it themselves, but they cannot remove the federal government's prerogative to do so.

So it boils down to a matter of which laws the federal government chooses to devote the resources to enforce.

Of some note, the federal anti-marijuana laws have continued to be enforced in the states that have "made pot legal" even though the administration has suggested that they really don't have the will to do so.

As far as true "nullification" -- to the extent that this means the state would try to PREVENT the federal government from enforcing federal law -- this has not been tested in blood ... recently. As Nom points out, the last time federal law was nullified, it ended really really badly for the entire half of the country that attempted to do so. At present, it seems unlikely that "we" would have anything close to half of the country willing to go another round, and certainly not on behalf of rescinding NFA'34 and GCA'68.

 

[Spats McGee]

. . . . The Feds have basically said that they could not do anything about the laws in said states, which makes said activity legal.

You're talking about two different scenarios:
1) Feds saying "we won't try to strike down a state law;" and
2) States saying "we will pass a state law that 'voids' a federal law."

. . . . Could a state pass a law that would nullify the gun laws of 1968 and 1934?

Could a state (theoretically) pass such a law? Sure.

Would it have any effect? No. See my comments on The Supremacy Clause here.

 

[alsaqr]

People promoting nullification should be prepared to lose a civil war and endure the consequences of reconstruction. That is what happened to them once before.

Several of my great grand uncles and other relatives lost their lives fighting on the losing side in that one. See no reason for a repeat of that war.

 

[ConstitutionCowboy]

Essentially, the federal government holds supremacy over the states where state and federal laws conflict.

And, on the same token, whereas the Constitution has supremacy over the Feral Government, and We the People wrote the Constitution, the Feral Government's gun laws are in conflict with the Constitution and We the People. All we need is to use the power we have to do something about it such as nullification by We the People - or simply ignore those unconstitutional usurpations. We are, after all, the fourth branch of government with our rights and freedoms just as protected by the Constitution as the powers granted to the other branches of the Feral Government are limited.

In this case, neither the several states nor the Feral Government has power to write these onerous gun control laws. Ergo, this isn't a case of the Feral Government usurping power from the several states, it is a direct assault on the rights - and the inherent power of those rights - of We the People. This is a Ninth Amendment issue as much as it is a Second Amendment issue.

Woody

 

[ConstitutionCowboy]

Several of my great grand uncles and other relatives lost their lives fighting on the losing side in that one. See no reason for a repeat of that war.

This is entirely different. This isn't one group of states against another. This is the People verses the Feral Government over the destructive infringement of individual rights.

Woody

 

[Midwest]

What about an Native American reservations in states that passed the Freedom Firearms Act? Or could any reservation (since it is considered sovereign), nullify the gun laws of 1968 and 1934 and manufacture firearms only for sale on Native American Reservations/Territories. And what about NFA items? Can those be nullified too?

 

[Sam1911]

This is entirely different. This isn't one group of states against another. This is the People verses the Feral Government over the destructive infringement of individual rights.

The only real difference is that, presumably, instead of having the whole might of a state or even a group of states backing up your resistance to the federal government's laws, you, the people ... er, the person ... would be on your own or one of a few scattered individuals. Thereby becoming something less than a footnote in the history book when agents and officers of the government settle the question.

Unless, of course, "all" you need to do is raise a force of "we the people" to resist collectively, and best of luck to you.

 

[RetiredUSNChief]

And none of this is ANYTHING that the individual citizen can hang his hat one.

The people are the ones caught in the middle of this, not the State and Federal governments. Regardless of what any given state may say or do, you'll NEVER see the state government going to court on the side of the citizen charged with the crimes by the federal government. You won't see state attorneys battling defense against the federal prosecuting attorneys for the defendant. There will be no state government cozying up to the defendant saying "don't worry, we've got your back and all the finances are covered for this".

In real life, what will happen from the perspective of the citizens is this:

- State makes bold claims about rejecting/nullifying federal law with respect to gun control.

- Citizen takes it to heart, does something which violates federal law thinking his State will protect him.

- Federal agents step in, make an arrest and press charges. Citizen goes to jail and calls attorney on his own dime.

- State raises a big stink in the media, maybe commences a court battle which revolves not around the citizen, but the State and the Federal governments.

- State provides absolutely no legal or financial support to the jailed citizen.

- Citizen sits in jail (or is bailed out on his own dime), commences a long and drawn out losing battle with the federal government, sacrificing virtually all his financial assets in the process, placing his health, family, and job in jeopardy through the stresses involved in the next several years.

- Citizen loses his battle in court, which means, among other things, that he has now lost his right to keep and bear arms for the rest of his life...and so, by proxy, do his family members who live in the same domicile.

 

[Arizona_Mike]

Nullification is a loosing battle but anti-commandeering (on immigration and drugs) has a strong success record in court. I think anti-commandeering gun provisions would survive scrutiny.

Mike

 

[akarguy]

Missouri is passing nullification as we speak

Its making final rounds through legislature now. It would nullify ALL federal gun control laws supposedly

 

[Carl N. Brown]

Just a side note

United States v. Miller - 307 U.S. 174 (1939)

Apparently the legal foundations of the 1934 National Firearms Act are the legal principles behind the Harrison Narcotic Act and court rulings supporting that Act.

 

[Frank Ettin]

...It [a bill pending in Missouri] would nullify ALL federal gun control laws...

No, it absolutely would not. Let's not go down this rabbit hole. State nullification of federal law is a chimera.

1. The Founding Fathers provided in the Constitution (Article VI, Clause 2, emphasis added):

   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.

   
   
2. There's some 200 years of Supreme Court precedent rejecting State nullification of federal law:
   
   
   • United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)
     
     
   • Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)
     
     
   • Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
     
     
   • McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
     
     
   • Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
     
     
   • Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
     
     
   • Prigg v. Pennsylvania, 41 U.S. 539 (1842)
     
     
   • Ableman v. Booth, 62 U.S. 506 (1859)
     
     
   • Cooper v. Aaron, 358 U.S. 1 (1958)
     
     
   • Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).
   
   
3. The Ninth Circuit has specifically ruled against Montana in a "firearm freedom law" case, Montana Shooting Sports Association v. Holder, No. 10-36094, (9th Cir., 2013).
   
   
4. A State may decide not to enforce federal law or assist with the furtherance of federal policy (Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)), but a State may not nullify federal law; and the federal agents may still enforce federal law without a State's help.
   
   
5. See also Willis v. Winters, 253 P.3d 1058 (Or., 2011) in which the Oregon Supreme Court ruled that a Sheriff was required under Oregon law to issue a concealed handgun license to Cynthia Willis even though she was a medical marijuana user. But the Oregon Supreme Court specifically noted (at pp. 1065 - 1066, emphasis added):

   ...Neither is the statute [the Oregon CHL law] an obstacle to Congress's purposes in the sense that it interferes with the ability of the federal government to enforce the policy that the Gun Control Act expresses. A marijuana user's possession of a CHL may exempt him or her from prosecution or arrest under ORS 166.250(1)(a) and (b), but it does not in any way preclude full enforcement of the federal law by federal law enforcement officials...

 

[ConstitutionCowboy]

The only real difference is that, presumably, instead of having the whole might of a state or even a group of states backing up your resistance to the federal government's laws, you, the people ... er, the person ... would be on your own or one of a few scattered individuals. Thereby becoming something less than a footnote in the history book when agents and officers of the government settle the question.

Unless, of course, "all" you need to do is raise a force of "we the people" to resist collectively, and best of luck to you.

Sam, There is nothing amiss with what you have said here. It doesn't, however, diminish the facts of what I said. And, it is not a lost cause. Pushed hard enough and far enough, the people will not stand still and be run over by a bellicose and dictatorial government of any kind - as long as the people are armed.

Woody

 

[ConstitutionCowboy]

A State may decide not to enforce federal law or assist with the furtherance of federal policy (Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997)), but a State may not nullify federal law; and the federal agents may still enforce federal law without a State's help.

That's a whole 'nuther ball game and another proper place to use nullification. Article I, Section 8, Clause 15, is the only grant of power to the federal government to execute(enforce) federal law other than on federal property.

Woody

 

[Frank Ettin]

...Article I, Section 8, Clause 15, is the only grant of power to the federal government to execute(enforce) federal law other than on federal property.

Perhaps in your fantasy world, Woody. But it's not that way in the real world.

We've been through this before. You have your own ideas about how things should work. However, the world continues to go about its business in its ways without any regard for your opinions.

 

[ConstitutionCowboy]

Frank,

Those ideas I have about how things should work are nothing more and nothing less than what the Constitution proscribes. There is nothing fantastic about that at all. There was a time in this country when that was the way it was. Today, how it is in the real world as you say, demonstrates how far off the Constitution we have come. If you want to know what has happened to our rights and freedoms, look no further.

I sometimes wish it didn't matter so much to me, but it does and I care. Fatalism is not a path I can follow. I have a conscience that knows better.

And, it's not my own opinions being ignored by an apparent majority the rest of the United States that bothers or concerns me. I don't care what you or the world thinks of me or my opinions. I do care what the People think of the Constitution, though. It birthed this country, and it can be its salvation. Why merely deal with the way it is when there is a cure?

Woody

 

[bcb2]

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


"Pursuance therof"
An honest reading of Article 6 and the 10th amendment make it clear that federal law is supreme ONLY when dealing with an enumerated power or treaty.

 

[ConstitutionCowboy]

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


"Pursuance therof"
An honest reading of Article 6 and the 10th amendment make it clear that federal law is supreme ONLY when dealing with an enumerated power or treaty.

Precisely.

Woody

 

[Jim K]

Federal gun laws are based on the "commerce clause", supposedly to prevent state law from being rendered useless by interstate commerce. In fact, Title I of GCA '68 is called "State Firearms Control Assistance".

The problem is that historically, federal law trumps state law. In the case of marijuana, the federal law is not being made void by state law; federal authorities have simply decided, in violation of their oath of office, not to attempt to enforce the federal law. It is not a matter of nullification (which is another issue) it is a matter of dereliction of duty on the part of federal officers.

Of course, the U.S. Attorneys have the option, in any case, not to prosecute a person charged with a crime; but it is questionable whether they have the authority to instruct federal LEOs not to make arrests for clear violation of federal law.

Jim