“Nullification, Symbolism Over Substance”: How States Are Making It A Felony To Enforce Federal Gun Laws
In mid-April, Kansas passed a law asserting that federal gun regulations do not apply to guns made and owned in Kansas. Under the law, Kansans could manufacture and sell semi-automatic weapons in-state without a federal license or any federal oversight.
Kansas’ “Second Amendment Protection Act” backs up its states’ rights claims with a penalty aimed at federal agents: When dealing with “Made in Kansas” guns, any attempt to enforce federal law is now a felony. Bills similar to Kansas’ law have been introduced in at least 37 other states. An even broader bill is on the desk of Alaska governor Sean Parnell. That bill would exempt any gun owned by an Alaskan from federal regulation. In Missouri, a bill declaring federal gun laws “null and void” passed by an overwhelming majority in the state House, and is headed for debate in the Senate.
Mobilizing the pre-Civil War doctrine of “nullification,” these bills assert that Congress has overstepped its ability to regulate guns — and that states, not the Supreme Court, have the ultimate authority to decide whether a law is Constitutional or not.
The head of the Kansas’s State Rifle Association, an affiliate of the National Rifle Association, says she put the bill together and found it a sponsor. While the NRA regularly lauds passages of states’ gun-rights laws, it stayed silent on Kansas’ law, and, so far, has kept a low profile on nullification. (The group did not respond to our requests for comment.)
Many observers see nullification bills as pure political theater, “the ultimate triumph of symbolism over substance,” as UCLA law Professor Adam Winkler put it. He said he doubts the laws will ever be enforced, and, if they are, expects them to be struck down by the courts.
Winkler and others say nullification laws violate the Constitution, which makes federal law “the supreme law of the land…anything in the Constitution or laws of any State to the contrary notwithstanding.” Indeed, U.S. Attorney General Eric Holder wrote a letter last week to Kansas governor Sam Brownback, asserting that Kansas’ law is “unconstitutional.” (Brownback, who signed the bill into law, did not immediately respond to our requests for comment.)
But the growing number of such bills — which have passed by large majorities in at least one chamber of seven state legislatures–highlight the challenge gun control advocates face in their attempt to fight for gun regulation at the state level.
It also shows how nullification is fast becoming a mainstream option for state politicians. In Pennsylvania, 76 state legislators signed on to sponsor a measure that would invalidate any new federal ban of certain weapons or ammunition. The bill would impose a minimum penalty of one year in prison for federal agents who attempt to enforce any new law.
Supporters of nullification are not simply frustrated at what they see as congressional and presidential overreach. During a hearing about one of the nullification bills she had introduced, Tennessee state senator Mae Beavers called the Supreme Court a “dictatorship.”
“You think that the Supreme Court is the ultimate arbiter of any of these laws. I don’t believe that. I don’t believe it was ever granted the authority under the Constitution,” Beavers was quoted as saying in The Tennessean. (Reached by phone, she asked to comment later, then did not respond to further requests.)
The Supreme Court rejected nullification in 1958, after Southern states tried to use the concept to avoid desegregating public schools. “No state legislator or executive or judicial officer can war against the Constitution without violating his solemn oath to support it,” the Court ruled.
Winkler, the UCLA law professor, said that even though the nullification trend was likely to be ineffectual, “It represents a strong, powerful opposition to our government.”
The concept of nullification has had a resurgence since the beginning of President Obama’s administration. More than a dozen states have introduced bills to nullify Obamacare.
The Tenth Amendment Center, a group that advocates nullification as the solution to a range of policy issues, from marijuana legalization to Obamacare, publishes model gun nullification language. The center has little direct contact with state legislators, Michael Boldin, the center’s founder, said.
The roots of guns law nullification trace back nearly a decade.
In 2004, Montana gun rights activist Gary Marbut drafted a bill stating that any guns manufactured and retained in Montana are not part of interstate commerce, and thus are exempt from federal regulation. The bill failed twice, but it became law in 2009 after Republicans took control of the state House. By Marbut’s count, at least eight states soon enacted “clones” of the Montana law. (Those laws don’t go quite as far as the more recent nullification legislation. For instance, most of them don’t make it a crime to enforce federal law.)
The federal Bureau of Alcohol, Tobacco and Firearms responded to the earlier laws with letters to local firearms dealers explaining that federal laws and regulations “continue to apply.”
The day the Montana law went into effect, Marbut filed a lawsuit in federal court asserting the right to manufacture weapons in the state without a federal license. The suit, now before the Ninth Circuit Court of Appeals, has been backed by a large group of supporters, including Gun Owners of America, the Second Amendment Foundation, the Cato Institute, the Goldwater Institute, and a group of nine attorneys general, some of them from states that had passed their own versions of the Montana law.
Representatives of Goldwater and the Cato Institute said they see the case as not primarily about guns. Instead, they say, it’s meant to persuade the Supreme Court to roll back the Congress’ power to regulate commerce within a state.
“The likelihood of victory is low,” said Trevor Burrus, a research fellow at the Cato Institute’s Center for Constitutional Studies.
The latest set of bills — including Kansas’ new law —represent a far broader and more aggressive challenge to federal law. Even conservative organizations have been skeptical of the trend.
“A state law that criminalizes federal activity — I would oppose that as both imprudent and wrong,” Burrus said. The Cato Institute’s chairman wrote an op-ed recently arguing this kind of nullification is invalid.
Goldwater Institute’s Nick Dranias, a Constitutional expert, said the term “nullification” is sometimes applied to legitimate attempts to exert state sovereignty, “and sometimes it is essentially lawless civil disobedience.”
States should only pass laws challenging federal power “when there is a reasonable legal argument for sustaining them,” he said. And the penalty for enforcing federal law in “hard cases” should be “a misdemeanor at most.”
The Heritage Foundation, a conservative research group, released a “fact sheet” last year titled “Nullification: Unlawful and Unconstitutional.” (The fact sheet does not address guns in particular.)
The Montana activist who helped inspire the nullification movement in Kansas is also a bit skeptical. While he simply chose to challenge the federal government’s commerce power, Kansas is “bucking federal power more generally,” he said.
“I think, maybe tactically, they may have gone a little further than they needed to,” Marbut said.
Though he supports the principles behind the Kansas law, “I don’t know how much of that they can uphold when it gets to the courts.”
But Marbut hopes that the rapid spread of gun law nullification bills across the country will encourage the Supreme Court to hear his case.
“I see the tide moving our way,” Marbut said. “I think the Supreme Court has figured out that the people of America are gathering their torches and pitchforks and it’s time to settle things down by reeling in the federal giant.”
A spokeswoman for Alaska’s Parnell, who has not either approved or vetoed the state’s nullification bill, said last month that “he is supportive of it.” But, she added, “The bill (as with all bills that pass) is currently undergoing a thorough review by the Department of Law.”
In Kansas, Patricia Stoneking, the president of the Kansas State Rifle Association, said she was recommending that Kansans not start manufacturing guns under the new law until its legal status has been clarified.
Even if Kansas’ law ends up being struck down in court, “We actually are not going to roll over and play dead and say, ‘Oh, no, shame on us,’” Stoneking said. “The fight will not be over.”
By: Lois Beckett, ProPublica, May 3, 2013
Every Saturday morning, President Obama releases a weekly address, issued over the air and on radio, followed by an official Republican response. Ordinarily, they’re intended to reinforce the parties’ message of the week, or push some new initiative, and they’re not especially newsworthy.
But this week’s GOP address, delivered by Kansas Gov. Sam Brownback (R), struck me as more interesting than most.
National party leaders selected Brownback so that he could tout Kansas’ new tax policies, which Republicans apparently now consider a model for the nation. The governor specifically called his tax agenda an example of “ideas that work.”
“They involve a more focused government that costs less. A taxing structure that encourages growth. An education system that produces measurable results. And a renewed focus on the incredible dignity of each and every person, no matter who they are.”
The next question, of course, is, “Ideas that work for whom?”
Brownback’s initial approach to tax reform was ludicrously regressive — sharply reducing tax rates for the wealthy, while punishing the poor. For his next phase of “tax reform,” the Kansas governor, with the help of a Kansas GOP legislature that’s been purged of moderates, intends to eliminate the state income tax altogether, while making matters even worse for families that are already struggling by raising sales taxes, eliminating the mortgage interest deduction, and scrapping tax credits for things like food and child care.
Remember to keep the larger context in mind: Brownback’s agenda is awful for Kansas, but Republican Party officials at the national level chose the governor to deliver their weekly address, not just because they heartily endorse his tax policies, but because they want to see them implemented elsewhere. Indeed, with a debate over tax reform on the horizon, GOP leaders in Washington are sending a not-so-subtle signal: Brownback’s regressive vision is the kind of plan they have in mind.
By: Steve Benen, The Maddow Blog, April 8, 2013
Republicans have a problem. For years they could shout down any attempt to point out the extent to which their policies favored the elite over the poor and the middle class; all they had to do was yell “Class warfare!” and Democrats scurried away. In the 2012 election, however, that didn’t work: the picture of the G.O.P. as the party of sneering plutocrats stuck, even as Democrats became more openly populist than they have been in decades.
As a result, prominent Republicans have begun acknowledging that their party needs to improve its image. But here’s the thing: Their proposals for a makeover all involve changing the sales pitch rather than the product. When it comes to substance, the G.O.P. is more committed than ever to policies that take from most Americans and give to a wealthy handful.
Consider, as a case in point, how a widely reported recent speech by Bobby Jindal the governor of Louisiana, compares with his actual policies.
Mr. Jindal posed the problem in a way that would, I believe, have been unthinkable for a leading Republican even a year ago. “We must not,” he declared, “be the party that simply protects the well off so they can keep their toys. We have to be the party that shows all Americans how they can thrive.” After a campaign in which Mitt Romney denounced any attempt to talk about class divisions as an “attack on success,” this represents a major rhetorical shift.
But Mr. Jindal didn’t offer any suggestions about how Republicans might demonstrate that they aren’t just about letting the rich keep their toys, other than claiming even more loudly that their policies are good for everyone.
Meanwhile, back in Louisiana Mr. Jindal is pushing a plan to eliminate the state’s income tax, which falls most heavily on the affluent, and make up for the lost revenue by raising sales taxes, which fall much more heavily on the poor and the middle class. The result would be big gains for the top 1 percent, substantial losses for the bottom 60 percent. Similar plans are being pushed by a number of other Republican governors as well.
Like the new acknowledgment that the perception of being the party of the rich is a problem, this represents a departure for the G.O.P. — but in the opposite direction. In the past, Republicans would justify tax cuts for the rich either by claiming that they would pay for themselves or by claiming that they could make up for lost revenue by cutting wasteful spending. But what we’re seeing now is open, explicit reverse Robin Hoodism: taking from ordinary families and giving to the rich. That is, even as Republicans look for a way to sound more sympathetic and less extreme, their actual policies are taking another sharp right turn.
Why is this happening? In particular, why is it happening now, just after an election in which the G.O.P. paid a price for its anti-populist stand?
Well, I don’t have a full answer, but I think it’s important to understand the extent to which leading Republicans live in an intellectual bubble. They get their news from Fox and other captive media, they get their policy analysis from billionaire-financed right-wing think tanks, and they’re often blissfully unaware both of contrary evidence and of how their positions sound to outsiders.
So when Mr. Romney made his infamous “47 percent” remarks, he wasn’t, in his own mind, saying anything outrageous or even controversial. He was just repeating a view that has become increasingly dominant inside the right-wing bubble, namely that a large and ever-growing proportion of Americans won’t take responsibility for their own lives and are mooching off the hard-working wealthy. Rising unemployment claims demonstrate laziness, not lack of jobs; rising disability claims represent malingering, not the real health problems of an aging work force.
And given that worldview, Republicans see it as entirely appropriate to cut taxes on the rich while making everyone else pay more.
Now, national politicians learned last year that this kind of talk plays badly with the public, so they’re trying to obscure their positions. Paul Ryan, for example, has lately made a transparently dishonest attempt to claim that when he spoke about “takers” living off the efforts of the “makers” — at one point he assigned 60 percent of Americans to the taker category — he wasn’t talking about people receiving Social Security and Medicare. (He was.)
But in deep red states like Louisiana or Kansas, Republicans are much freer to act on their beliefs — which means moving strongly to comfort the comfortable while afflicting the afflicted.
Which brings me back to Mr. Jindal, who declared in his speech that “we are a populist party.” No, you aren’t. You’re a party that holds a large proportion of Americans in contempt. And the public may have figured that out.
By: Paul Krugman, Op-Ed Columnist, The New York Times, January 27, 2013
Kansas Gov. Sam Brownback (R) has had a fair amount of success in his first two years implementing a very conservative agenda. Most notably, Brownback’s tax “reform” plan, which sharply cut income taxes on Kansas’ wealthy while punishing the poor, was signed into law in May.
But it apparently wasn’t quite enough to satisfy the right. We talked earlier this week about a group of congressional Republican moderates — an endangered and ineffectual contingent — feeling increasingly frustrated, but reader R.P. flagged an item out of Kansas, where the GOP is actively purging centrists from their midst.
Frustrated by their inability to achieve some policy goals, conservatives in Republican states are turning against moderate members of their own party, trying to drive them out of state legislatures to clear the way for reshaping government across a wide swath of mid-America controlled by the GOP. [...]
The push is most intense in Kansas, where conservatives are attempting to replace a dozen moderate Republican senators who bucked new Gov. Sam Brownback’s move to slash state income taxes.
Greg Smith, a Kansas state representative who’s running for the state Senate, told the AP, “If you don’t believe in that playbook, then why are you on the team?”
What an illustrative quote. The far right is drawing up the plays, and those who disagree, even a little, ought to be replaced with loyal, almost robotic, teammates who will do what they’re told.
In Kansas, this translates into a series of contentious GOP primaries, which will be held early next week, in which right-wing activists try to replace the moderates (or at least those who seem moderate by 2012 standards) in their midst. This includes, the Republican Senate President, Senate Majority Leader, and several key committee chairs whose fealty to the far-right cause has disappointed the party’s base. The Koch brothers and the Kansas Chamber of Commerce are providing the financial resources to fuel the purge.
For his part, Brownback has already turned on many Republican incumbents, throwing his support to primary challengers because the moderates, in his words, help “promote a Democrat [sic] agenda.”
A traditional poli-sci model might suggest this is risky. Most voters consider themselves mainstream and “somewhere in the middle,” and traditionally punish parties that become too extreme.
But in states like Kansas, Republicans figure they have nothing to worry about — the GOP dominates, and winning the primary means winning the seat.
For the activist right, this means there’s very little risk in fighting to replace more reasonable Republicans with ones who’ll mindlessly toe the party line.
In the post-Bush, post-financial-crisis, post-war era, the Republican Party has slowly been confronted with questions about what kind of party it wants to be in the 21st century. It appears the decision has been made: the GOP wants a small, rigid, right-wing party that tolerates very little dissent and even fewer moderates.
By: Steve Benen, The Maddow Blog, August 3, 2012
Let’s take a look at sex and state legislatures.
Never a good combo. Lawmakers venture into murky waters when they attempt to deal with the mysteries of human reproduction. The results are generally short of scientific. Once, when I was covering the Connecticut House of Representatives, a bill introduced at the behest of professional musicians, “An Act Concerning Rhythm Machines,” was referred to the Public Health Committee under the assumption that it was about birth control.
That was a long time ago, but a definite high note. Normally when these matters come up in a state capitol, the result is not chuckles.
New Hampshire, for instance, seems to have developed a thing for linking sex and malignant disease. This week, the State House passed a bill that required that women who want to terminate a pregnancy be informed that abortions were linked to “an increased risk of breast cancer.”
As Terie Norelli, the minority leader, put it, the Legislature is attempting to make it a felony for a doctor “to not give a patient inaccurate information.”
And there’s more. One of the sponsors, Representative Jeanine Notter, recently asked a colleague whether he would be interested, “as a man,” to know that there was a study “that links the pill to prostate cancer.”
This was at a hearing on a bill to give employers a religious exemption from covering contraception in health care plans. The article Notter appeared to be referring to simply found that nations with high use of birth control pills among women also tended to have high rates of prostate cancer among men. Nobody claimed that this meant there was scientific evidence of a connection. You could also possibly discover that nations with the lowest per capita number of ferrets have a higher rate of prostate cancer.
Bringing the prostate into the fight was definitely a new wrinkle. But it’s getting very popular to try to legislate an abortion-breast cancer link. I suspect this is at least in part because politicians in some states are being forced to stretch to find new ways to torture women who want to end an unwanted pregnancy. It’s sort of like gun control — once your state already has guaranteed the right to wear concealed weapons into bars and churches, you’re going to have to start getting really creative to reaffirm a commitment to the Second Amendment.
Last year, South Dakota — which has a grand total of one abortion provider — instituted a 72-hour waiting period, plus a requirement that the woman undergo a lecture at one of the state’s anti-abortion pregnancy counseling centers.
This law is tied up by litigation. While they’re waiting, the legislators have improved upon their work, requiring the doctor to ask his patient — who may have already traveled for hours, waited for three days and gone through the counseling center harangue — questions including what her religious background is and how she thinks her family might react to the decision to end the pregnancy.
“South Dakota has taken the I.R.S. audit model and applied it to women’s reproduction,” said Ted Miller of Naral Pro-Choice America.
But about this cancer business.
“Now we’re seeing why legislatures getting into the practice of medicine is dangerous,” said Barbara Bollier, a Republican state representative in Kansas, where a bill requiring doctors to warn abortion patients about the breast cancer connection is pending.
Bollier is a retired anesthesiologist, who also formerly taught bioethics. If you wanted to have a résumé guaranteed to drive you crazy in the Kansas State Legislature, she’s got it.
We had a very interesting discussion over the phone about good science — what makes a reliable study, and how an early suggestion of a possible connection between abortions and breast cancer was overtaken by larger, better studies that showed no evidence of a link whatsoever. All of this has been shared with the Kansas Legislature, to no effect whatsoever.
Bollier has her finger on the moral to all this. When faced with a choice between scientific evidence and their personal and political preferences, legislators are not going to go with the statistics. I have warm memories of the committee of the Texas House of Representatives that last year rejected a bill to require that public school sex education classes be “medically accurate.”
Let’s refrain from discussing how the people who are preparing to legislate medical science are often the very same ones who scream about government overreach when health experts propose taxing sugary beverages.
Just try to envision yourself in a doctor’s office for a consult. Then imagine you’re joined by a state legislator. How many of you think the situation has been improved? Can I see a show of hands?
By: Gail Collins, Op-Ed Columnist, The New York Times, March 16, 2012