State nullification legislation to prevent 2A infringements.

[dogtown tom]

Has Montana been successful with some basic type of resistance to federal enforcement of some gun issue?

I can't remember the issue at all.

Nope.

 

[Insignificant bill]

So we should just obey unconstitutional laws that ban Constitutionally protected firearms. That is why we are in this mess.

 

[dogtown tom]

Tennessee has long had a law that Tennessee law enforcement resources will not be used in enforce a federal law that violates Article I Declaration of Rights of the Tennessee state constitution.That includes article the right to keep and bear arms, Article I Section 26, which has been interpreted by state courts, state attorney general opinions, and statements of legislative intent, as protecting self-defense, military preparedness marksmanship training, defense of livestock from predators, hunting, recreational shooting, collection of curios, and all other traditional and lawful purposes.

Yeah, no matter how long TN has had that in their state constitution it isn't going to stop anything. Tennessee requires FFL's to use TICS, pay a fee for each firearm background check AND the state records the firearm serial #.............so much for your state resources.

 

[Tommygunn]

So we should just obey unconstitutional laws that ban Constitutionally protected firearms. That is why we are in this mess.

Make sure you have enough $$$$$$ for a grave and a good lawyer - - - - maybe a whole flock of 'em, if you go this route. Being in the right "existentially" does not protect you from the law, which simply IS, and will be enforced at gunpoint in extremis.

 

[dogtown tom]

So we should just obey unconstitutional laws that ban Constitutionally protected firearms. That is why we are in this mess.

How you and I read the Constitution and Bill of Rights is immaterial. It's how the Federal courts interpret....which is what the Constitution says they are to do.

 

[DeepSouth]

How you and I read the Constitution and Bill of Rights is immaterial. It's how the Federal courts interpret..

I just have to point out if the above statement is true, you can’t make the statement below.
Unless of course you are the federal court.

...which is what the Constitution says they are to do.

BTW, I happen to agree with you.

I’m becoming more and more convinced the system of government the founders envisioned simply can’t work, at least not for long at all. And making a system where the definitions of words aren’t concrete but are allowed to be interpreted is a huge part of the problem, IMO.
Anyway, that’s a different matter all together.

 

[GEM]

Wandering off topic to general governmental discussions. Let's bring it back around the OP issue.
Also, suggesting that one disobey actual laws is not for THR. Announcing you will do that in a public forum is not the best idea.

 

[Insignificant bill]

How you and I read the Constitution and Bill of Rights is immaterial. It's how the Federal courts interpret....which is what the Constitution says they are to do.

Well I respect you and you are most likely alot smarter than I am

 

[Carl N. Brown]

"Legislation in at least a dozen states seeks to nullify any new restrictions, such as ammunition limits or a ban on certain types of weapons." -- Lindsay Whitehurst, "GOP state lawmakers seek to nullify federal gun limits", Associated Press, 4 Mar 2021.

"Nullify" is the term used by the AP. Not what the bills do.
It would be nice to see a breakdown by party of legislators who voted in favor of these bills. Wanna they weren't all GOP?

Added: the actual bills treat state enforcement of unconstitutional gun restriction (malum prohibitum type laws, not laws aimed at malum in se) with benign neglect, as free states did the fugitive slave acts.

 

[Monac]

State nullification does not exist as an actual legal power. The Southern states raised that question starting in the 1830's, when they did not like Federal tariffs on foreign imports. They was raised it again, in an ultimate form, in 1861 when they preemptively decided that Lincoln was going to end slavery immediately. It was settled once and for all in 1865. It a road national political minorities go down when they don't like the results of democracy. As the South found out, it doesn't lead anywhere anyone wants to go.

I would suggest that preemptively deciding that the Democrats are going to ban gun ownership immediately (or, as someone in another thread put it, "our gun rights are currently in dire danger") is just as premature as the South was in 1861, and acting on that basis would be just as self-destructive. Personally, I have been hearing that song and dance since I began collecting guns in 1981. What makes now different?

 

[Carl N. Brown]

State nullification does not exist as an actual legal power.

Free states either neglected to enforce the fugitive slave act or actually passed laws that nullified the fugitive slave act within their borders & let their state authorities arrest slave catchers for kidnapping.

(Locally we have plaques commemorating the local support of Underground Railroad before and during the Civil War.)

Added: I would suggest that preemptively deciding that the Democrats are going to ban gun ownership immediately ... is based on Democrat candidates' campaign promises. And the will of those who voted them in.

 

[tomrkba]

If a Federal law exceeds its mandate, is it a constitutional law? The answer should be negative, even if SCOTUS incorrectly ruled.

This is a challenge to the corrupted version of the Commerce Clause created by SCOTUS in the 1930’s. It was never intended to reach into states and control state action. For example, how a surgeon does surgery was never intended to be controlled by the Federal government merely because some tools were sold across state lines.

People have forgotten that the states DELEGATED limited powers to the Feds and not the other way around. Controlling the internals of state commerce is not one of those powers. Yet, the gun control act of 1968 does exactly that by abusing that clause.

Everyone mistakenly believes that Federal law trumps state law. This is not true. Federal law only trumps state law in the areas delegated to the Federal government. Once again, this means the Feds have no power to control the internals of state commerce except through the corrupt SCOTUS decision. I believe any STATE supreme court can nullify Federal overreach into its state as related to this topic. WHETHER a court would do that is a different discussion

 

[Frank Ettin]

So we should just obey unconstitutional laws that ban Constitutionally protected firearms. That is why we are in this mess.

Understand that in real life in the real world a law is unconstitutional only when the U. S. Supreme Court has said so. It's not a question which can be decided by a poll, nor do individual or collective opinions matter.

The Founding Fathers assigned the job of deciding what the Constitution means and how it applies to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

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....​

Section 2.

The judicial power shall extend to all cases, in law and equity, arising under this Constitution,...​

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.

What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):

...It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.....

And indeed, it is a general principle in the United States that courts give deference to legislative acts and presume statutes valid and enforceable, unless unconstitutionality is determined:

1. As the Supreme Court said in Brown v. State of Maryland, 25 U.S. 419 (1827), at 437:

   ...It has been truly said, that the presumption is in favour of every legislative act, and that the whole burden of proof lies on him who denies its constitutionality...

   
   
2. And much more recently in U.S. v Morrison, 529 U.S. 598 (2000), at 605:

   ......Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds. See United States v. Lopez, 514 U.S., at 568, 577_578 (Kennedy, J., concurring); United States v. Harris, 106 U.S., at 635. With this presumption of constitutionality in mind, we turn to the question whether §13981 falls within Congress' power under Article I, §8, of the Constitution....

Holding on to cherished misconceptions about what the law is or how the law works doesn't help promote the RKBA. To deal effectively with reality we must first clearly understand it.

In any event, 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. For an example of these principles applied to state marijuana laws, see 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...

   
   
6. A Kansas similar law didn't work for Shane Cox and Jeremy Kettler who made suppressors in Kansas and were then were convicted in federal court in Kansas for violating the NFA.

 

[Frank Ettin]

If a Federal law exceeds its mandate, is it a constitutional law? The answer should be negative, even if SCOTUS incorrectly ruled.

This is a challenge to the corrupted version of the Commerce Clause created by SCOTUS in the 1930’s. It was never intended to reach into states and control state action. For example, how a surgeon does surgery was never intended to be controlled by the Federal government merely because some tools were sold across state lines.

People have forgotten that the states DELEGATED limited powers to the Feds and not the other way around. Controlling the internals of state commerce is not one of those powers. Yet, the gun control act of 1968 does exactly that by abusing that clause.

Everyone mistakenly believes that Federal law trumps state law. This is not true. Federal law only trumps state law in the areas delegated to the Federal government. Once again, this means the Feds have no power to control the internals of state commerce except through the corrupt SCOTUS decision. I believe any STATE supreme court can nullify Federal overreach into its state as related to this topic. WHETHER a court would do that is a different discussion

Thank you for this excursion to Fantasy Island, but in real life in the real world your entire post is pretty much a non sequitur. You like, like many other folks, cherish deeply held beliefs which simply aren't true in real life in the real world. And your beliefs, no matter how fervently you may hold them, don't change what's true in real life in the real world.

Reality is what happens in real life in the real world. There are over 1.3 million lawyers in the U. S. There are something on the order of 30,000 judges in various state courts and about 1,700 federal court judges. Something well over a million cases are filed each year in the state and federal trial courts. Decisions affecting the lives of real people are being made every day in that system. Those decisions are being made using real law as I describe it -- not the fantasy law as you imagine it to be.

In real life in the real world if courts aren't deciding matters using what you think the law is, your understanding of what the law is is wrong. The opinions of courts on matters of law affect the lives and property of real people in the real world. Your opinions and $2.00 will get you a cup of coffee. The fact is that no one cares about your opinions, and the world is going about its business, and will continue to do so, without regard to your opinions.

 

[kwguy]

“Interpret” is not the same as “re-interpret to support an agenda”. Reading comprehension is not rocket science, but is now made to be so. If someone “interprets” some part of the constitution to be pro slavery, for example, it still doesn’t make it right. Too much common sense and obviousness is deferred to “experts”.

 

[Frank Ettin]

“Interpret” is not the same as “re-interpret to support an agenda”. Reading comprehension is not rocket science, but is now made to be so. If someone “interprets” some part of the constitution to be pro slavery, for example, it still doesn’t make it right. Too much common sense and obviousness is deferred to “experts”.

None of that is up to you. in real life in the real world what the Constitution means and how it applies is finally up to the federal courts.

 

[kwguy]

None of that is up to you. in real life in the real world what the Constitution means and how it applies is finally up to the federal courts.

Yes, In “real life”, its true that we have allowed that ideal to be compromised. But there’s nothing wrong with striving for an ideal, simply because “real life” is composed of those who compromise the ideal in pursuit of their agenda. Still doesn’t make it right. In “real life”, there is plenty of wrongdoing and oppression and suffering inflicted by those upon others. And while it may not be “up to” those who are the victims of that, hopefully there will always be those who will oppose infringement upon their rights.

 

[Frank Ettin]

Yes, In “real life”, its true that we have allowed that ideal to be compromised. But there’s nothing wrong with striving for an ideal, simply because “real life” is composed of those who compromise the ideal in pursuit of their agenda. Still doesn’t make it right.

So exactly how do you plan to strive for the ideal? And in the meantime, you won't get anywhere mistaking what you want for what is real.

Also, why do you think it has to be your idea? Not everyone shares your vision, and those who do not share your vision still have rights.

See Madison in Federalist No. 39:

....the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. But this does not change the principle of the case. The decision is to be impartially made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality. Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated....

And Hamilton in Federalist No. 78:

....If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, ...

 

[kwguy]

All

So exactly how do you plan to strive for the ideal? And in the meantime, you won't get anywhere mistaking what you want for what is real.

Also, why do you think it has to be your idea? Not everyone shares your vision, and those who do not share your vision still have rights.

See Madison in Federalist No. 39:

​

And Hamilton in Federalist No. 78:

​

All I’m saying is just because a court says so, it doesn’t make it right. That’s seems clear because courts have opposing rulings all the time. They also have had bad rulings. Dred Scott vs Sanford being an example (I hope) of a bad ruling. Some things are just not that complicated, and some things are pretty easy to interpret on the face of it. We just make it complicated, or it’s made to be so because people wish to change things for an agenda, and will use their position to make it so. There should always be disagreement and pushback against that.

 

[Frank Ettin]

...All I’m saying is just because a court says so, it doesn’t make it right....

It makes it real, and the rulings of the courts affect real life and influence future court decision.

... They also have had bad rulings. Dred Scott vs Sanford being an example (I hope) of a bad ruling....

Dred Scott needs to be evaluated based on the law at the time. The fact that from the perspective of 21st Century values it was repugnant, doesn't mean it was bad law at the time.

Courts make decisions based on the facts, and the then applicable law and precedent. That could lead to what to some is an unsatisfactory result. But that doesn't make the court's decision wrong or bad.

And sometimes one's notion of what's good or bad is heavily influenced by whose ox is gored. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.

...Some things are just not that complicated, and some things are pretty easy to interpret on the face of it....

Perhaps to you. What about those who disagree with you? Perhaps you're not really opposed to tyranny, as long as it's your brand of tyranny.

 

[Monac]

State nullification does not exist as an actual legal power.

Free states either neglected to enforce the fugitive slave act or actually passed laws that nullified the fugitive slave act within their borders & let their state authorities arrest slave catchers for kidnapping.

(Locally we have plaques commemorating the local support of Underground Railroad before and during the Civil War.)

Added: I would suggest that preemptively deciding that the Democrats are going to ban gun ownership immediately ... is based on Democrat candidates' campaign promises. And the will of those who voted them in.

A) You are quite right about Northern states trying to nullify the Fugitive Slave Act. Right up until the Supreme Court handed down the Dred Scott decision and told them they couldn't. And that became the law of the land, which outraged so many people that the Republican Party won the elections of 1860, leading to the South deciding they were not going to abide by democracy if democracy didn't give them the results they wanted, leading to the Civil War. Once again, is that really an example you want to follow?

B) "deciding that the Democrats are going to ban gun ownership immediately ... is based on Democrat candidates' campaign promises..." Yes, as I said, I've been hearing that since 1981, and when has it been true? I would suggest two things to you:

One, don't cry before you're hurt. That is what the South did in 1861, leading to total disaster for their cause and everything else in the South.

Two, watch what people DO and not what they SAY. What are the Democrats doing now? Passing laws about guns, or about Covid relief and the minimum wage? And having a pretty tough time with those. (And if you mention HR 127, I will laugh at you, because that thing is God's gift to the Republican Party.)

C) "And the will of those who voted them in". Did you have some point here? Because if so, I can't see it. The Democrats were voted in by a majority nation-wide, although of course not in every state.

 

[kwguy]

It makes it real, and the rulings of the courts affect real life and influence future court decision.

Dred Scott need to be evaluated based on the law at the time. The fact that from the perspective of 21st Century values it was repugnant, doesn't mean it was bad law at the time.

Courts make decisions based on the facts, and the then applicable law and precedent. That could lead to what to some os an unsatisfactory result. But that doesn't make the court's decision wrong or bad.

And sometimes one's notion of what's good or bad is heavily influenced by whose ox is gored. There are plenty of folks who loved Roe v. Wade and hated Heller, and perhaps as many who hated Roe v. Wade and loved Heller.



Perhaps to you. What about those who disagree with you? Perhaps you're not really opposed to tyranny, as long as it's your brand of tyranny.

No, tyrannizing others is not me.

 

[Poper]

You don't need a "Constitutional carry law" when you don't have any state firearms law other than those prohibiting possession by felons or using a firearm in the commission of a crime. Less laws, better government.

Arizona's "Constitutional Carry" law was only the repeal of existing laws requiring permission from the government to exercise your constitutional right to keep and bear arms.

There was no law passed to grant the citizens of AZ the Right to Keep and Bear Arms. The removal of restrictions required to carry concealed or open by anyone in AZ was meerley the return to the constitutional intent ood the 2nd Amendment. And it applies to citizens and visitors alike.

 

[Poper]

suggesting that one disobey actual laws is not for THR. Announcing you will do that in a public forum is not the best idea.

This reminds me of what a registered engineer once said in a meeting: "Never post anything on-line that you may not want to defend in court."

 

[Pudge]

State nullification does not exist as an actual legal power. The Southern states raised that question starting in the 1830's, when they did not like Federal tariffs on foreign imports. They was raised it again, in an ultimate form, in 1861 when they preemptively decided that Lincoln was going to end slavery immediately. It was settled once and for all in 1865.

All your example shows is that there are principles people are willing to fight over regardless of what a court says about an issue.