It’s been more than two decades since Congress last approved significant curbs on gun ownership, and the chances that it will do so in the foreseeable future are remote. But in statehouses across the country, legislators are using the fear of new federal restrictions to push through bills that would prohibit state agencies from enforcing new restrictions — even though opponents and even many supporters say the laws aren’t enforceable.
The conflict between state lawmakers’ efforts to stand up to Washington and the questionable legality of their legislation was on display during a recent South Carolina Senate judiciary subcommittee meeting.
The bill up for discussion at the March 24 hearing would ban state agencies from enforcing new federal gun laws. The state’s House of Representatives had overwhelmingly approved the measure earlier in the month. “Other than the fact that it might not be constitutional, is there anyone opposed to it?” the chairman of the subcommittee, Senator Brad Hutto, asked his colleagues, according to a local newspaper’s account of the meeting.
“We’ll let the courts sort that one out,” he later added.
In 2009 and 2010, eight states, including Tennessee, Idaho, Arizona, Alaska, and Utah, enacted so-called nullification laws to prevent, and in some cases bring criminal charges against, any state, county, or local official or agency that enforces federal firearms laws and regulations. The laws sought to prevent the federal government from regulating the manufacture, sale, and use of firearms within the borders of the state where they were made.
A second wave of nullification legislation is now under consideration in at least six other states, including South Carolina, Alabama, and Kentucky. Mississippi’s Senate passed such a bill last week. This new round seeks to expand the enforcement restrictions to encompass all firearms, regardless of their origin.
Though many legal scholars regard such measures as constitutionally dubious or largely symbolic — or both — gun-rights advocates say they are important laws because they highlight what they regard as federal overreach to restrict firearms.
“The anti-gun movement around the country has become much more vocal and aggressive,” says Michael Maharrey, the national communications director for the Tenth Amendment Center, a pro-gun group based in Los Angeles that tracks state nullification legislation, of the motivation behind the legislative push. “And that has made the average American more wary of what’s coming down next from the federal government.”
Legal scholars say many firearms nullification laws and legislation appear to be unconstitutional. A prime example: the Second Amendment Protection Act in Kansas, which Governor Sam Brownback signed into law in April 2013. That law, regarded as the most controversial state firearms nullification law in the nation, forbids all government agents — including federal agents — from enforcing federal laws that govern guns and ammunition that are made in Kansas and remain within state borders.
The law appears to contravene the supremacy clause of the U.S. Constitution, which holds federal law as supreme over any conflicting state authority or power, legal experts say.
“States can stop their officials from enforcing federal laws in their states,” says Adam Winkler, a UCLA law professor and author of Gunfight: The Battle Over the Right to Bear Arms in America. State laws “get problematic,” he says, “when they say that federal officials can’t enforce federal law within their state’s boundaries.”
So far, federal challenges to state firearms nullification efforts have been limited. In 2013, the Federal Appeals Court for the Ninth Circuit struck down a 2009 Montana law that voided federal oversight of arms made and kept within state borders. And in April 2013, Attorney General Eric Holder sent a letter to Brownback in Kansas warning that the state nullification law was unconstitutional.
That point is not lost on many state lawmakers, including Senator Hutto in South Carolina. But it has not deterred them from advancing provocative firearms bills.
“These are largely symbolic pieces of legislation, not really designed to be enforceable,” Winkler says of state nullification laws that have sought to prevent federal regulation of other industries. “Liberals do that on medical marijuana and immigration,” he says. “Conservatives do it on guns.”
[Photo: AP Photo/Rogelio V. Solis]