Raising the Bar for Nullification

by Michael Boldin
by Michael Boldin
Recently by Michael Boldin: Colorado, South Dakota Firearms Freedom Act Introduced

Around the country, twenty-two states are currently considering a bill known as the "Firearms Freedom Act." This bill declares that guns, accessories, and ammunition made within a state, sold within that state and kept in that state are not subject to federal laws or regulations under the "Interstate Commerce Clause" of the Constitution.

Montana and Tennessee passed a Firearms Freedom Act into law in 2009, and a number of states are moving that direction in the 2010 legislative session. In South Carolina, where a Firearms Freedom Act was also introduced in 2009, some representatives have taken things a step further.

NULLIFYING GUN REGISTRATIONS

Introduced in the South Carolina General Assembly this week is House Bill 4509 (H4509), which if passed, would make law that "no public official of any jurisdiction may require registration of purchasers of firearms or ammunition within the boundaries of this State."

No caveat for regulations under the commerce clause. No caveat for types of firearms either. This bill says NO to all gun registrations – period.

The principle behind such legislation is nullification, which has a long history in the American tradition.

In the Kentucky Resolutions of 1798, Thomas Jefferson wrote in response to the hated Alien and Sedition Acts:

"The several states composing the United States of America are not united on the principle of unlimited submission to their general government"

and

"where powers are assumed [by the federal government] which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them"

In short, nullification means this: The state is taking a position that a particular federal law is unconstitutional, and thus, the law in question is void and inoperative, or "non-effective," within the boundaries of that state; or, in other words, not a law as far as that state is concerned.

But nullification is much more than just mere rhetoric. To nullify a federal law in practice requires active resistance to it by the people and the state government.

INTERPOSITION

In the Virginia Resolution of 1798, James Madison wrote of the principle of interposition:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

Here Madison asserts what is implied in nullification laws – that state governments not only have the right to resist unconstitutional federal acts, but that, in order to protect liberty, they are “duty bound to interpose” or stand between the federal government and the people of the state.

H4509 includes strong language to assert this principle:

Federal agents have flouted the United States Constitution and foresworn their oath to support this Constitution by requiring registration of the purchasers of firearms and ammunition, and these requirements violate the limits of authority placed upon the federal agents by the United States Constitution and are dangerous to the liberties of the people

(B) Notwithstanding any other provision of law, no public official of any jurisdiction may require registration of purchasers of firearms or ammunition within the boundaries of this State.

(C) Any person violating the provisions of this subsection (B) is guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars, or a term of imprisonment not exceeding five years, or both.

A GROWING MOVEMENT

Supporters of such legislation point to laws passed by other states that have effectively nullified federal laws around the country. Fourteen states have now defied federal laws on marijuana. And, two-dozen states have refused to comply with the Bush-era Real ID Act, rendering that 2005 law virtually null and void today.

Guns, national ID cards, and weed might be just the early stages of a quickly growing movement to nullify other federal laws seen as outside the scope of their constitutionally-delegated powers. In states around the country this year, bills have been proposed to defy or nullify federal laws on health care, use of national guard troops overseas, legal tender laws, cap and trade, and even the process of collecting federal income taxes.

The final goal? It's a long way off – a federal government that follows the strict limits of the constitution, whether it wants to or not.

February 10, 2010

Michael Boldin [send him mail] is the founder of the Tenth Amendment Center.

Copyright © 2010 Tenth Amendment Center. Permission to reprint in whole or in part is gladly granted, provided full credit is given.