(credit Lyle Denniston, National Constitutional Center)
“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.”
– Excerpt from a Kansas law, known as S.B 102 and formally titled the “Second Amendment Protection Act,” enacted in that state last year, and now facing a challenge in federal court. Kansas was the latest of several states to pass such laws.
“The far-reaching nullification provisions of the Act are unconstitutional on their face under long-standing, fundamental legal principles. Neither the Kansas legislature, nor any state legislature, is empowered to declare federal law ‘invalid,’ or to criminalize the enforcement of federal law. Any legislation or state action seeking to nullify federal law is prohibited by the Supremacy Clause, Article VI, Section 2, of the United States Constitution.”
– Excerpt from a lawsuit filed in federal court in Kansas on July 9, seeking a ruling that would strike down the Kansas law on gun rights.
WE CHECKED THE CONSTITUTION, AND…
From time to time in American constitutional history, a revival of states’ rights sentiment has led to efforts to place state governments between citizens and the federal government, to thwart excessive use of national power. The idea, never accepted by the Supreme Court as valid, is based on the theory that the Constitution was actually a creature of the states, joining together in a compact to give some – but not all – power to a central government. The states, the theory goes, are the ultimate arbiters of how governing power should be distributed and exercised.
Sometimes, these efforts are called “nullification,” because they would simply declare national actions unconstitutional and thus void. At other times, they have been called “interposition,” which describes the state as standing up against federal power. The theory does have some respectable pedigree: It had the endorsement of James Madison and Thomas Jefferson in what are known as the “Kentucky and Virginia Resolutions.”
The theory led to a national crisis, in the Andrew Jackson administration, over state resistance to the tariff on trade with other countries. And, of course, belief in the need for nullification of attempts to end slavery was a cause of the Civil War. The idea had a revival in Southern opposition to the modern civil rights movement’s campaign for national laws to protect racial minorities. Indeed, much of the resistance movement in the South during the 1950s was based at least in part on the theory of interposition.
With the recent rise of the Tea Party movement, with its fervent opposition to concentration of governing power in Washington, the movement once again is gaining adherents. Some part of the resistance to the new federal health care law, for example, can be traced to the theory of state power to nullify national legislation that is said to be over-bearing or over-reaching.
In the past few years, the intensification of the demand for strong personal rights to have and carry guns is bringing back the nullification idea. It does not appear to have much promise of succeeding; just last February, the Supreme Court turned down – without any explanation – a plea by gun rights enthusiasts in Montana to allow that state to forbid the enforcement of federal guns laws against the owners of guns manufactured and kept inside that state.
But the resistance of the Supreme Court and lower courts has not deterred these efforts. A year ago, the legislature in Kansas became the latest to adopt a nullification law, aimed directly at federal gun laws that the legislature believed violated the Second Amendment right to have and carry guns. As other states have done, Kansas’s lawmakers confined the law to guns that were made and kept inside the state’s borders – a clear attempt to get around the argument that the state was attempting to interfere with interstate commerce in gun manufacture and distribution.
As soon as that law was signed formally by Kansas Governor Sam Brownback, U.S. Attorney General Eric Holder, Jr., wrote a letter to the governor, denouncing S.B. 102 as unconstitutional. “Under the Supremacy Clause of the United States Constitution,” Holder wrote, “Kansas may not prevent federal employees and officials from carrying out their official responsibilities. And a state certainly may not criminalize the exercise of federal responsibilities.” He warned that there would be no let-up in enforcement of those laws and duties inside Kansas.
Except for some back-and-forth in public statements on the issue, the controversy has not yet been resolved one way or the other. However, last month, the Brady Center to Prevent Gun Violence went into federal court with a new lawsuit, asking a judge to strike down the Kansas measure as a clear violation of the Constitution’s Supremacy Clause. The lawsuit provided a lengthy list of federal gun restrictions that would be nullified in Kansas, if the law were allowed to remain on the books.
The lawsuit will take some time to run its course. A central question that will arise as the case moves forward is whether Kansas has succeeded – where other states have failed – in showing that the gun trade can actually be confined within a state’s borders, and have no effect on the commerce in guns nationwide. Given the ease with which guns move across state borders, it will be very hard for Kansas to prove that it can set its guns apart from what happens with guns across the country.