Montana Firearms Freedom Act

[henschman]

I think it's time to dust off the doctrine again and give it another go. I think it would be better regarded if it wasn't for the fact that the last time it was invoked, it was for a really bad cause (keeping gov't schools racially segregated -- thanks a lot, Arkansas).

But I think it could actually work, especially if a large group of states get together. At the very least, it would mean that not everybody is resigned to the post civil war, post new deal status quo that the national government has absolute supremacy and absolute power to regulate anything it sees fit. All it takes is enough people willing to stand behind it.

 

[belercous]

What I meant about the nullification question being settled over 150 yrs. ago was the Civil War. It was fought over secession, but only because the southern states knew that nullification was not a viable option. They knew it wouldn't work so they seceded from the union.

When I was in law school nullification was only mentioned in passing, as a matter of history. It was an idea that never had much support so it wasn't taken seriously, niether in the early 19th Cen. nor today. The only precedent to be found for it goes back to the Articles of Confederation which was widely recognized as not working. A major factor of its demise was because of state's nullification rights. If nullification were to be recognized as a valid concept, the Constitution would have to be thrown out as both are not compatible. (Maybe Justice Thomas would go for it, but he's an extremist.) Talk to anyone involved in constitutional law, nullification is a joke and has no chance of winning any argument before SCOTUS. Secession has a better chance of being recognized today. (I doubt we would fight another Civil War.)

 

[Lou McGopher]

The idea of state nullification, while popular in the early 19th Cent., was pretty much settled 150 yrs. ago. In legal circles, the notion has no traction and is not taken seriously.

Not so. RealID is effectively dead because of nullification. It's been used for medical marijuana. Obamacare is going to be nullified in several states, if it isn't ruled unconstitutional first. And as much as the fedgov loves its misinterpretation of the commerce clause, I still think nullification is viable for firearms laws.

nullification is a joke and has no chance of winning any argument before SCOTUS.

That's the point... it doesn't require SCOTUS to accept it. It requires the state legislators willing to stand up for their citizens. It's an option that is perfect in keeping with the principles on which our government was founded.

 

[andrewstorm]

Andrew Jackson

Was one of a kind ,the kind that wins,god bless america.

 

[belercous]

" RealID is effectively dead because of nullification. It's been used for medical marijuana. Obamacare is going to be nullified in several states..."

RealID has not been implemented because the federal gov. has not pushed it. There are a lot of logistical problems in its implementation and the Fed. Gov. has wisely not chosen to enforce it, nullification has nothing to do with it. Marijuana (medical or not) is still illegal under federal law and has been enforced in at least California under GWB. BHO's administration has chosen not to enforce it where it is legal for medical reasons. The prohibition on marijuana is on its way out due to it being a nonsensical law, not because of nullification. And nullification will not be the reason ObamaCare is found unconstitutional, if it even is.

State nullification has never been upheld as a valid legal theory in any federal court, it is a non-starter. Such a defense, if it were the sole legal theory put forth, would be dismissed on summary judgement if a court wouldn't do so sua sponte. There is not even a good-faith argument to be made for it. An attorney positing such a defense would be engaging in malpractice unless his client specifically demanded that theory.

It doesn't matter how vigorously any state legislature is in defending it, the Montana Firearms Freedom Act has no valid legal theory to support it, nor is it even a close case. Follow it and see. I doubt it'll ever even make it in front of SCOTUS to be heard since that would require a federal appeals court to uphold it. (While a single appeallate judge might uphold it, the case would be resubmitted for the entire appeallate court to hear, {an en banc hearing.} And federal appeallate judges know something about Constitutional law.)

I wish Montana luck, but the statute flies in the face of legal reality.

 

[Lou McGopher]

Twenty-three states have officially refused to enforce the Real ID act, several more have been considering doing the same thing. That's nullification. That's why fedgov has not pushed it.

State nullification has never been upheld as a valid legal theory in any federal court

The states can ignore the federal court, too.

 

[Zoogster]

When I was in law school nullification was only mentioned in passing, as a matter of history.

Probably because it would readily result in disbarment of attorneys that found it too interesting.
Jury nullification essentially flies in the face of the orderly established application of settled law, and few people that make law their career want people just ignoring all the principles, case law, and other aspects their education and career is based around.
The result is few judges will even tolerate the mention of it in a court room at all, and a prosecutor most certainly would take every step possible to get a new trial if it is openly mentioned in the court room.




Nullification has little chance for a large number of reasons. First it requires people to even know about it. Most people do not.

It is often career ended for an attorney to advise a jury of nullification. So it won't be the defense attorney specifically advising jurors about it, how it is historically and constitutionally acceptable, or why it can be used in direct conflict with the jury instructions given by the judge.
No judge is going to tolerate it being used to undermine their instructions in a court room and make decisions contrary to the law.
An attorney will quickly find themselves disbarred that informs juries about nullification.

Finally judges often declare a mistrial if it becomes obvious jury nullification is playing an admitted role in the outcome of a case.
If you get a mistrial because it became obvious jury nullification would play a role, the whole concept fails to work because more decisions based on jury nullification will be undone, while more of the opposing decisions will be allowed to stand having been decided in accordance with the law and legal instructions.


So jury nullification essentially requires people to already know something they cannot talk about in court, nor can prosecution nor defense inform them of, and which a judge won't tolerate.
If declared by a juror the principles of the juror become moot because they will be removed or a mistrial declared and a new jury without someone with such principles will be brought in to make the desired decision.
If a new trial is held and the person is convicted anyways, the beliefs of that jury member didn't really matter in the end, and their principles just resulted in someone without those principles making the decision anyways.
So it requires the jury member to often remain silent on their reason not to find someone guilty, and never mention the word "nullification".


All of this makes a realistic campaign of reliable nullification that actually results in regularly completed cases that make a difference difficult to achieve.

 

[belercous]

Zoogster; The topic was state nullification of federal law, not jury nullification. Two completely different things.

And yes, few judges will allow an attorney to inform a jury about this right a jury has. And jury nullification was not mentioned much in law school either.

 

[henschman]

Apparently it bears reiterating that nullification does not rely on being upheld in any court. The whole point of nullification is that if the national government makes an unconstitutional law, and even if said law is upheld in the courts, even by the supreme court, states as a last resort can simply refuse to comply with it.

Nullification rejects the idea that the Supreme Court is the final arbiter in matters of Constitutional interpretation. Proponents of nullification point out that the Constitution does not delegate this role to the Supreme Court -- it is a role the Supreme Court has arrogated itself to. They will say that Nullification is completely compatible with the Constitution, and will point out that among many other founders, the father of the Constitution, James Madison, believed in Nullification at the time he helped to write the document.

belercous, what parts of the Constitution do you believe to be incompatible with nullification?

You are right that nullification isn't taken seriously by very many people, but what I'm saying is that all it takes for nullification to work is for enough people to START taking it seriously, and putting it into practice... which seems to be the direction things are headed.

 

[DMF]

. . . what parts of the Constitution do you believe to be incompatible with nullification?

How about Article III, specifically Section 2.

 

[Frank Ettin]

...Nullification rejects the idea that the Supreme Court is the final arbiter in matters of Constitutional interpretation. Proponents of nullification point out that the Constitution does not delegate this role to the Supreme Court ...

belercous, what parts of the Constitution do you believe to be incompatible with nullification?

Constitution, Article III, section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish...

Constitution, Article III, Section 2, emphasis added

The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party;—to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States,—between Citizens of the same State claiming Land under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

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.

Of course, in some cases there may be a question as to whether a particular federal law was made in pursuance of the Constitution. That becomes a case arising under the Constitution in connection with which the Constitution delegates to the federal courts the jurisdiction to exercise judicial power.

 

[Cosmoline]

Think for a second about how the NFA functions. It's a FEDERAL law that requires NO repeat NO involvement from the state. The state has ZERO power to "nullify" it because of the Supremacy Clause. So this legislation does nothing whatsoever to keep the federal government from arresting you and throwing you in federal prison for breaking federal law.

Furthermore, unlike school segregation or potentially the new health care law, this is not a case of federal courts ordering state and local government to do something. The state can sit back and gripe all it wants, it does not matter one bit. Nor do state legislatures have any recognized power to issue binding interpretations of the US Constitution. The fact that Montana or Alaska disagree about the reach of the commerce clause will get you a cup of coffee if you happen to have a few bucks on you. So these "freedom" laws do NOTHING. Do not rely on them, because it will be you going to prison not the guys who passed the law.

 

[henschman]

Article III merely states that that all judicial power of the United States is vested in a Supreme Court and any inferior courts that Congress shall see fit to establish, and that the Supreme Court has jurisdiction of all cases arising in law and equity under the Constitution, etc.

It does not state that the courts are the only remedy that a state has against an unconstitutional law passed by the national government. In fact, at least one other method of resisting tyranny and usurpation from the national government is expressly recognized in the Constitution... the recognition of state militias, and the protection of the right to keep and bear arms in the 2nd Amendment. Many of the framers saw the militia as a last resort against tyranny from the national government. Nullification is a less drastic method of resisting tyranny.

The Supremacy Clause in Article VI states that the Constitution and the laws made pursuant to it are the supreme law of the land. However, nullification is used against laws that a state believes to be in violation of the Constitution. The pro-nullification argument is that the Supremacy Clause cuts both ways... if a law is in violation of the Constitution, it is in violation of the supreme law of the land and deserves no respect from the states.

The main issue is that the Constitution does not give to any branch or part of government the power to authoritatively interpret the Constitution and make its interpretation binding on the States. You can say that such a rule exists because that is how we have operated for most of our country's history, but there is no Constitutional basis for it. As I stated earlier, many of the founders believed in nullification, including the main author of the Virginia Plan, which became our Constitution.

 

[Frank Ettin]

...The pro-nullification argument is that the Supremacy Clause cuts both ways... if a law is in violation of the Constitution, it is in violation of the supreme law of the land and deserves no respect from the states.

The main issue is that the Constitution does not give to any branch or part of government the power to authoritatively interpret the Constitution and make its interpretation binding on the States....

Not quite.

Under Article III, the Supreme Court has jurisdiction to determine "...all cases arising under ... this Constitution..."(emphasis added). So it is the province of the Supreme Court to decide any challenge to the constitutionality of statute of the United States (or a State).

If the Supreme Court finds a federal law to be constitutional, under Article IV it is, "...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." Thus any ruling by a state court purporting to void, or avoid, that federal law is ultra vires.

 

[henschman]

Article VI doesn't say anything about Supreme Court opinions being the supreme law of the land.

 

[Cosmoline]

This is not a situation where the federal government is imposing its will on the states. The states have nothing to do with it. This is a federal law imposed directly on the people. Under no interpretation of the Constitution would a state legislature have any ability to veto that law.

 

[Frank Ettin]

Article VI doesn't say anything about Supreme Court opinions being the supreme law of the land.

If you like that argument, have at it.

 

[Prosser]

Odd, but, I thought the entire point of Marbury vs. Madision was that the Supreme Court took the authority to rule on issues of Constitutionality of
Federal laws, and ran with it, without conflict from Congress?

Federal agencies have a way of self-perpetuation, creating their own laws.

So do state agencies. Currently, our version of the BATF is ordering out of state gun dealers to not sell black rifles to anyone but class 3 license holders.

 

[belercous]

Justice Marshall's opinion in Marbury establishing the S.C as the sole arbiter of the Constitution is important for just that reason, you are correct Prosser. That is why the case is studied on day one of law school.

Nothing in the Constitution or federal law grants SCOTUS this power, they just claimed it and it has been accepted for 210 years. It is not something likely to be overturned.

The long & short of it is: State nullification does not exist & SCOTUS decides what the Const. means. These are basic tenets of American jurisprudence which are settled law. Legal scholars don't even debate these topics, at least not seriously.

 

[Prosser]

Part of the problem has been that the Supreme Court has ruled, or failed to rule in favor of states rights.
The issue is really states rights:
"10th Amendment Resolutions

In 2009-2010 thirty eight states have introduced resolutions to reaffirm the principles of sovereignty under the Constitution and the 10th Amendment; Nine states have passed the resolutions. These non-binding resolutions, often called “state sovereignty resolutions” do not carry the force of law. Instead, they are intended to be a statement to demand that the federal government halt its practices of assuming powers and imposing mandates upon the states for purposes not enumerated by the Constitution.[6]"

Due to most of the cases about states rights being related to racial prejudice, and, the court using Federal law to impose de-segregation, states rights have been erroded to such a point they have become a Constitutional joke. That, along with the absurd power granted to the Federal government by The Court under the Commerce Clause rulings, and, you have exactly what we have now.

 

[henschman]

Nothing in the Constitution or federal law grants SCOTUS this power, they just claimed it [...]

I think you pretty well summed it up.

The fact that no Court is likely to uphold nullification does not in any way make it less viable as a course of action, as nullification does not rely on any court upholding it. The spirit of nullification is along the lines of what Andrew Jackson once said: "Justice Marshall has ruled -- now let him enforce it."

Cosmoline, you are right that it doesn't really do much for a state to pass a nullification law like the Firearms Freedom Act (or the Virginia and Kentucky Resolutions for that matter). It is partly a way of making a statement. However, the related theory of Interposition holds that a state may interpose itself to protect its citizens against the national government when it attempts to enforce an unconstitutional law. The state could order its sheriffs to arrest any federal agents attempting to enforce the law in the state, for instance. Of course this might take some ballsy sheriffs, since they may be opening themselves up to federal charges for doing so, but that is the idea anyway.

All this is a bit academic right now, as I don't believe the spirit of resistance is strong enough in any state at the moment for enough people to get behind interposition. But maybe someday things will change.

I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer. The state could set up an agency to purchase the chosen weapons and "issue" them to those who are interested. The agency could be paid for by a sur-charge on the purchase price of the weapons.

 

[Prosser]

I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer. The state could set up an agency to purchase the chosen weapons and "issue" them to those who are interested. The agency could be paid for by a sur-charge on the purchase price of the weapons.

I really like this idea. Plus, it puts the Second Amendment in play, that the
people are militia. A state might take it further and order all citizens to own and maintain a fully automatic weapon, ala the Swiss.

Where the Federal Government is really going to get itself in it is when they issue laws that require the states to pay for their law/action, when it contradicts the will of that states people. i.e. Federal education guidelines, with no funds to accomplish the dictated goals, etc.

 

[sellmarkguy]

Goooo.. Montana!

 

[Cosmoline]

I understand it's just symbolic, but what if some poor schlub actually relies on such a law to build a full auto? The feds will still arrest and imprison him. It won't be the state going to prison.

I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer.

It's an interesting idea. You wouldn't even have to add them to payroll. They could be analogous to a volunteer fire department. The feds, as far as I can see, would have nothing to say about it. Nor would it need to be tied to some archaic state militia statutes.

But in the end no firearm law on the books is going to give rise to some sagebrush rebellion with sheriffs arresting AFT guys. These laws have been around for a long time and we're pretty much stuck with them.

I agree with Prosser that the real problem is and always has been financial. Much of what the feds do now relies on bribery of the states. They tie federal funds for a myriad of programs to state compliance with federal edicts. But the feds are running out of real assets. If they have any at all at this point. The breaking point will come when the bribe money for highway funds and other things can no longer make up for the unfunded mandates. It's all about the money, always has been.

 

[belercous]

Quote:
I've always thought that a more practical way of getting around the NFA would be for a state to make everyone who wants to buy prohibited weapons a law enforcement officer.

I kinda like that idea.