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State legislators in Missouri and Idaho are trying to prevent the enforcement of federal gun control laws with a legal tactic called nullification – and if successful, the new laws could result in jail or fines for those who do enforce them.
The efforts in both states apparently were motivated by President Obama’s call for new federal gun control legislation last year
The measure in Idaho, signed by Gov. Butch Otter March 19, would subject state or local officials who enforced federal gun control laws to fines of up to $1,000. The new law prohibits state officials from enforcing “federal executive orders, agency orders, statutes, laws, rules, or regulations” enacted after March 19, the effective date of the new law. It passed the state Senate, 34-0 and the House, 68-0. It was SB 1332.
“By signing this nullification bill into law, Idaho has joined an elite class of states that are telling the feds to ‘get lost’ — especially when it comes to unconstitutional gun control infringements,” said Erich Pratt, director of communications for Gun Owners of America.
Tenth Amendment Center national communications director Mike Maharrey also applauded the Idaho law.
“This is an important first step for Idaho,” Maharrey said. “Getting this law passed will ensure that any new plans or executive orders that might be coming our way will not be enforced in Idaho. Then, once this method is established and shown to be effective, legislators can circle back and start doing the same for federal gun control already on the books. SB1332 is an important building block for protecting the 2nd Amendment in Idaho.”
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The new Idaho law rests on a doctrine called “anti-commandeering.” “Simply put,” the Tenth Amendment Center explained on its website, “the federal government cannot force states to help implement or enforce any federal act or program.”
And In Missouri, Too
Proposed legislation in Missouri would give state officials the power to arrest and jail federal agents trying to enforce federal gun laws. It passed the state Senate, 23-10.
“I am proud to say that we have passed arguably one of the strongest Second Amendment protections in the country,” State Sen. Brian Nieves (R-Washington), the sponsor of Missouri’s Second Amendment Protection Act told the Associated Press. Under the law federal agents could face a year in jail and a $1,000 fine for enforcing gun control legislation.
Governor Jay Nixon vetoed a similar bill last year, and the supporters were not able to get enough votes for a veto override.
The National Rifle Association initially opposed the measure this year in Missouri. The NRA was against the law because it would have required citizens to report stolen guns to the police within 72 hours; the NRA contended that requirement was de facto gun registration. The Senate removed that provision and the NRA has adopted a neutral stance.
“This is a very unconstitutional bill and we should not be wasting our time with it,” State Sen. Jamilah Nasheed of St. Louis said of the Missouri bill. Critics like Nasheed contend that the Constitution gives the federal government authority over the states.
So What Is Nullification Anyway?
Both laws are based on an old constitutional doctrine called nullification that faces a stiff challenge in the federal courts.
The idea behind nullification is that state and legal officials have a legal right to refuse to enforce federal laws that they think are unconstitutional. The Tenth Amendment Center contends that the Tenth Amendment to the US Constitution gives officials that right.
The center bases its claims on a reading of an argument by James Madison, the Founding Father often called the author of the Constitution. Madison wrote that officials have a right not to cooperate with officials of the Union (federal government) who were enforcing “unwarrantable” (unconstitutional) laws in Federalist Paper #46.
The Center also noted that recent efforts to legalize marijuana in states like Colorado are effectively nullifying federal drug laws. The US Department of Justice has declined to oppose such efforts.
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