“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
“A Visceral Reaction Like None Before”: The Gun-Vote Backlash Has Only Just Begun
As the Boston area was gripped by the manhunt that followed the Marathon bombings late last week, the opinion pages of the Concord Monitor just up the road in New Hampshire were consumed with another subject: Senator Kelly Ayotte’s vote against legislation to expand background checks for gun purchases. The paper’s lead editorial Sunday decried Ayotte’s rationale for opposing the bill as “utter nonsense” and an “abomination.” The letters to the editor section is riddled with anti-Ayotte broadsides, the tenor of which are conveyed by their headlines: “Ayotte’s vote should propel her out of office.” “Beyond disappointed.” “Ayotte did not represent her New Hampshire constituents.” “Enabler of murderers.” “Ayotte’s ‘courage.’” “Craven pandering.” “Reckless vote.” “Illogical vote.”
If gun control advocates are going to have any chance of resurrecting reforms after last week’s crushing defeat, much is going to depend on the depth of the initial backlash against the Democratic or swing-state Republican senators who opted to vote with the gun lobby. In a piece the day after the vote, I lamented that some leading liberals and mainstream media types were so willing to chalk the vote up to the predictable dynamics of the gun control issue, thereby essentially letting the senators who cast the crucial votes against the legislation off the hook for their decisions. One major columnist avoided holding accountable the senators who took the actual votes by wishing that President Barack Obama had acted more like a president in a movie.
But there are signs that the reaction against the vote will be stronger than what has followed prior setbacks for the cause. First, of course, there was the angry cri de coeur from Gabby Giffords. On Friday came spontaneous protests around the country at district offices of senators who voted no. The Brady Campaign to Prevent Gun Violence has set up a number for people to text so they can be patched through to the office of a senator who went the other way. “In years past when we lost on a vote, we had to generate [reaction], we had to push people,” says Brian Malte, the group’s director of mobilization. “This time it’s just directing it to the right place. It’s ‘I’m so angry, what should I do?’”
Perhaps the most surprising outburst came from Bill Daley, the former Clinton commerce secretary, JP Morgan Chase executive and Obama chief of staff. Daley, son and brother of the Chicago mayors of the same name, is no one’s idea of a conscience liberal—in fact, he was a leading voice during the past two decades for making the Democratic Party more welcoming to centrist types, be they pro-business moderates like himself or red-state working-class voters who, yes, cling to their guns. But there he was in Sunday’s Washington Post excoriating the four Senate Democrats who voted against the background-check legislation, particularly Heidi Heitkamp, the newly elected North Dakotan who does not face voters again for another five years:
I want my money back. Last October, I gave $2,500 to support Heidi Heitkamp’s campaign to become North Dakota’s junior senator. A few weeks later, she won a surprise victory. But this week, Heitkamp betrayed those hopes. She voted to block legislation to make gun background checks more comprehensive. Her vote — along with those of 41 Republicans and three other Democrats — was a key reason the measure fell short of the 60 votes needed for passage.
Polling has shown that nine in 10 Americans and eight in 10 gun owners support a law to require every buyer to go through a background check on every gun sale. In North Dakota, the support was even higher: 94 percent. Yet in explaining her vote, Heitkamp had the gall to say that she “heard overwhelmingly from the people of North Dakota” and had to listen to them and vote no. It seems more likely that she heard from the gun lobby and chose to listen to it instead.
Daley is just one person, but this seems pretty significant to me, as a sort of signal to establishment Democrats nationwide. For so long, party poo-bahs have cosseted Democrats from red or purple districts on issues such as gun control—heck, Daley’s fellow Chicagoan Rahm Emanuel deliberately picked pro-gun candidates to run for the House in 2006. Some liberals still seem inclined to cut the Gang of Feckless Four a lot of slack. But here is Daley turning the frame on its head—instead of making excuses for Heitkamp et al, he praised the Democrats running for reelection in tough states who did for the legislation, Louisiana’s Mary Landrieu and North Carolina’s Kay Hagan. They, not Heitkamp and the other three no’s (Max Baucus, Mark Begich and Mark Pryor) will be getting his money from now on, he said.
On the Republican side, the accountability will be left up to the voters in swing states like New Hampshire or Ohio, where Rob Portman also voted against the legislation (after letting it be known that he couldn’t cross party lines on guns after having already done so on gay marriage). It is not at all hard to envision a Democrat running against Kelly Ayotte on a law-and-order-line—here she was, a former attorney general, voting to leave a huge loophole in our system for making sure that felons are unable to purchase guns.
Of course, it won’t be easy. Ayotte, for one, is not even up for reelection until 2016, allowing plenty of time for the memory of her vote to recede in voters’ minds. As political scientists note, the unique circumstances of the gun debate still plays to the advantage of the NRA. But as my colleague Nate Cohn argues, the NRA’s sway has been overstated for some time now—the fact is, not a few senators have managed to survive in purple or red states despite consistently voting against the gun lobby. Last week’s setback was a sign that some senators were not yet willing to embrace that reality, and by doing so, they of course further enshrined facile assumptions of NRA prowess.
But their votes do seem to have produced a visceral reaction unlike any we’ve seen for some time on this front. And rightly so. It would take a jaded soul indeed to feel nothing on reading, say, of the scene Wednesday night in the Oval Office when some of the families who lost children in the Newtown massacre learned that 45 senators had not seen it in them to vote for even the most measured, limited reform: “Mr. Obama hugged the brother of one victim, Daniel Barden, who was 7, and told him to take care of his mother, who was sobbing quietly.”
By: Alec MacGillis, The New Republic, April 23, 2013
“Rubio Comes Up Short On Gun Control”: Thinking Just Like Mitt Romney Is How He’s Going To End Up
Marco Rubio showed his true yellow colors last week, joining 45 other cowards to defeat Senate legislation designed to stop criminals from buying firearms online and at gun shows.
The vote was nauseating. So is Rubio.
A few days earlier, he’d admitted to Fox News that he hadn’t read the complete bill that would expand federal background checks of gun buyers, but he was opposing it anyway.
Other pertinent materials that Rubio obviously didn’t read included a recent New York Times sampling of nutjobs, convicted criminals and even one fugitive who purchased assault rifles and other weapons over the Internet.
On NBC, Rubio repeated the NRA lie that background checks don’t work.
The truth: Since 1998, the National Instant Background Check System has blocked more than two million gun purchases by felons and others who are prohibited from owning firearms.
It’s unknown how many of them later went to gun shows and purchased AK-47s because, in most states, gun-show vendors aren’t required to keep detailed sales records. That’s one loophole that Democratic Sen. Joe Manchin and Republican Sen. Pat Toomey were trying to fix.
The Manchin-Toomey bill was supported by a huge majority of Americans — between 86 and 90 percent, depending on the poll — but not by the junior senator from Florida, the one who thinks he’s going to be the nation’s next president.
Listen to what he said on television:
“The fact of the matter is, we have a violence problem in the United States. Guns are what people use, but violence is our problem.”
Really? Stop the presses!
In fact, Rubio doesn’t have much to say about the causes and costs of violence in American culture. Currently there’s no mention of this tragic problem on his official website.
What you’ll find there is multiple “news” items about his role in immigration reform. He believes this is the issue that will make him the Republican frontrunner and help put him in the White House.
That’s why he appeared on seven national talk shows last Sunday — to promote new immigration legislation. When questioned about the upcoming gun bills, Rubio faithfully recited his NRA scripture.
And when it came time to decide on Wednesday, with heartsick families of the murdered Newtown children watching from the Senate gallery, Rubio stood with the cowards and pimps for the gun-manufacturing lobby.
He voted no to universal background checks. No to a ban on assault rifles. No to modestly limiting the number of bullets in magazine clips.
To what did the bold new face of the Republican Party say yes?
An NRA-backed proposal that would have allowed persons with concealed-weapons permits in one state to carry their weapons anywhere in the country. Top law enforcement officials thought this was an extremely poor idea, and it was defeated.
Most of the senators who voted against expanding background checks on gun buyers did so out of fear. They come from conservative, mostly rural states, where a flood of NRA money and advertising could boost their opponents in the next election.
Cowering, they acted out of political self-preservation.
Rubio has no such alibi. He doesn’t need the NRA to get re-elected in Florida, a state of 18 million residents and rapid urbanization.
The difference between him and the other 45 cowards is that Rubio isn’t thinking about going back to the Senate. He’s thinking about moving to 1600 Pennsylvania Avenue.
He’s thinking about those electoral votes in the West and the Deep South. He’s thinking about the Iowa primary.
In other words, he’s thinking just like Mitt Romney. And that’s how he’s going to end up — losing women voters, losing minority voters, losing the big cities and losing the election. That’s assuming he gets the GOP nomination.
Rubio had an opportunity to enter that Senate chamber and do something that almost all Americans believe is right and sensible for this country.
Something that would have set him apart from his gutless colleagues.
Instead he revealed himself as one more cynical slave to the gun makers’ lobby. His yellow vote won’t be forgotten in 2016.
It should be made to haunt him.
By: Carl Hiaasen, The National Memo. April 23, 2013
“The Way Forward On Guns”: It Often Takes Defeat To Inspire A Movement To Build The Strength Required For Victory
Victories often contain the seeds of future defeats. So it is — or at least should be — with the Senate’s morally reprehensible rejection of expanded background checks for gun buyers.
The outcome is a test of both an invigorated gun safety movement and a gun lobby that decided to go for broke.
The National Rifle Association assumed that blocking new gun legislation in the wake of the Sandy Hook massacre would firmly establish its dominance. Advocates of sane gun regulations would scatter in despair and be torn apart by recriminations.
But there is a flaw in the gun lobbyists’ calculation: Their strategy leaves the initiative entirely in the hands of their opponents. The early evidence is that rage over the cowardly capitulation of so many senators to raw political power is pushing activists against gun violence to redouble their efforts.
What was striking about Wednesday’s vote is that many of the senators who had expressed support for universal background checks after the slaughter at Newtown meekly abandoned their position when the roll was called.
Proponents of the measure, including Mark Kelly, the husband of former representative Gabrielle Giffords, spoke of private meetings in which senators offered no substantive objections to the compromise negotiated by Sens. Joe Manchin (D-W.Va.) and Pat Toomey (R-Pa). The wobbling legislators simply hinted that politics would not permit them to vote “yes.”
Giffords, the victim of the 2011 mass shooting in Arizona, founded Americans for Responsible Solutions to battle on behalf of gun reforms. She responded to the Senate vote with an op-ed in the New York Times that declared plainly: “I’m furious.” Senators, she said, “looked over their shoulder at the powerful, shadowy gun lobby — and brought shame on themselves and our government itself by choosing to do nothing.”
Giffords’s frustration echoed sentiment all across her side of the debate. In the past, Democrats who support gun safety had reacted benignly to members of their party from rural states who opposed sensible gun measures for expediency’s sake. Not this time. The response to Democrats who opposed background checks — Sens. Max Baucus, Mark Begich, Heidi Heitkamp and Mark Pryor — was indignation.
Begich invited scorn by insulting those who insisted that the Newtown massacre ought to be the last straw.
“It’s dangerous to do any type of policy in an emotional moment,” he said. “Because human emotions then drive the decision. Everyone’s all worked up. That’s not enough.” Describing the reaction to the death of so many children as “emotional” rather than rational should be electorally disqualifying.
But the vote also demonstrated for all to see a Republican Party walking in lock step behind its commanders in the gun lobby. Only four Republicans bravely defied the NRA’s fanatical opposition to a very mild measure: Toomey and Sens. Mark Kirk, John McCain and Susan Collins.
This should send a message to all who keep looking for new signs of Republican moderation.
Republicans who cultivate a reputation for reasonableness — their ranks include, among others, Sens. Johnny Isakson, Lamar Alexander, Bob Corker, Kelly Ayotte, Saxby Chambliss, Lisa Murkowski and Rob Portman — could not even vote for a watered-down proposal. This tells us that the GOP has become a coalition of the fearful. In a pinch, the party’s extreme lobbies rule.
This vote also made clear that the right wing is manipulating our system, notably by abusing the filibuster, to impose a political minority’s will on the American majority. Since when is 90 percent of the nation not “the Real America”?
Not only do Americans overwhelmingly endorse background checks; senators representing the vast majority of our people do, too. The “yes” votes Wednesday came from lawmakers representing 63 percent of the population. How can our democracy thrive when a willful minority can keep dictating to the rest of the country?
But the next steps are up to the supporters of gun sanity. They can keep organizing to build on the unprecedented effort that went into this fight — or they can give up. They can challenge the senators who voted “no,” or they can leave them believing that the “safe” vote is always with the NRA. They can bolster senators who cast particularly courageous “yes” votes — among them, Mary Landrieu and Kay Hagan — or they can leave them hanging.
The story of reform in America is that it often takes defeats to inspire a movement to build up the strength required for victory. Which way this story goes is up to us.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, April 21, 2013
“Why Aren’t They Protecting Us?”: Congressional Cowards, Afraid To Cast A Vote To Protect Millions Of Innocent People
Neil Heslin, Carlee Soto, and Erica Lafferty, each of whom lost loved ones in the massacre at Sandy Hook Elementary in December, appeared on CBS’s “Face the Nation” yesterday, still disappointed by the Republican filibuster that killed expanded background checks last week.
“It’s not about the Second Amendment, it’s strengthening and adding to laws that already in effect,” said Neil Heslin, whose son Jesse Lewis was killed at Sandy Hook Elementary School. “I don’t think they did justice for all the victims of Newtown.” […]
Carlee Soto, whose sister Vicki Soto was a teacher at Sandy Hook, chastised lawmakers for not doing enough to prevent future shootings. “My sister was not a coward, she protected her kids. Why aren’t they protecting us?” […]
Erica Lafferty, the daughter of principal Dawn Hochsprung, echoed Soto’s comments. “My mom was not scared in the halls of Sandy Hook, they should not be scared to cast a vote to protect millions of innocent people,” she said.
Lafferty added she felt “disgusted” by the Senate opponents of the bipartisan compromise.
Also over the weekend, Caren Teves, whose son was killed in the Newtown slayings, showed reporters a hand-written note from Sen. Jeff Flake (R-Ariz.), saying he was “truly sorry” for her loss and that “strengthening background checks is something we agree on.” That Flake went on to help crush expanded background checks struck Teves as a betrayal.
“What he did was to go against his own words and vote no against comprehensive background checks … I believe he’s a coward,” she said.
For Flake and other Republicans, “strengthening background checks” is an amorphous phrase with multiple meanings.
Meanwhile, it’s also worth keeping in mind that the pushback from the right against Newtown families is intensifying.
We talked a week ago about complaints from Sen. James Inhofe (R-Okla.), Rush Limbaugh, and congressional GOP staffers about the victims’ families. Apparently, some conservatives were willing to go even further.
A Minnesota radio host said he would like to tell the families of the Sandy Hook Elementary School shooting victims to “go to hell” for infringing on his gun rights.
Bob Davis was discussing those affected by the Newtown, Conn., tragedy during a Friday segment of his show, “Davis & Emmer,” on Twin Cities News Talk AM 1130, according to Minneapolis’ City Pages. The topic focused on how family members of the 26 victims, 20 of whom were between the ages of 6 and 7 years old, have become advocates for gun control. In Davis’ opinion, these Newtown families are infringing on his constitutional rights.
Sen. Rand Paul (R-Ky.) and Republican strategist Ed Rogers late last week were also still insulting Newtown families, calling them “props” for the White House’s efforts to reduce gun violence.
It’s hard to even imagine a group of people more deserving of our sympathy and respect than Newtown families, but for some on the right, the only thing that seems to matter is preventing any new gun laws. If the victims’ families interfere with that goal, for the right, they deserve more aggressive pushback.
By: Steve Benen, The Maddow Blog, April 22, 2013
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