The notion that states can decide for themselves whether federal laws are unconstitutional — a doctrine known as nullification — is rejected even by many legal scholars who support states' rights. But this week it came within one vote of being adopted by the state Legislature in Missouri, and supporters of the idea there and elsewhere say they will continue their campaign to "nullify" federal gun laws.
According to Article VI of the U.S. Constitution, that document "and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land." But in May, the Missouri Legislature approved what it called the 2nd Amendment Preservation Act, which asserted that the supremacy of federal law "does not apply to various federal statutes, orders, rules, regulations or other actions which restrict or prohibit the manufacture, ownership and use of firearms, firearm accessories or ammunition exclusively within the borders of Missouri." The bill's supporters argue that those federal gun laws violate the 2nd Amendment. But that is a decision for the courts, not state legislators.
Invoking an imaginary authority to declare federal laws unconstitutional, the bill said that federal officials who enforced federal firearms laws would be guilty of a misdemeanor. It also authorized Missouri residents who ran afoul of federal gun laws to sue federal agents for damages in civil court. Gov. Jay Nixon vetoed the legislation, and he reminded the Legislature that the Supreme Court has rejected such intrusions on federal authority in a series of cases dating back to 1819. Despite that, the Missouri House sought to override the veto. But on Wednesday, the override attempt in the Senate fell one vote short of the required two-thirds majority.
It's shocking that Missouri came so close to enacting a blatantly unconstitutional law. The Supreme Court has recognized that there are some limits on federal authority over the states. For example, in 1997, the court struck down a provision of the federal Brady gun control law, which required state and local law enforcement officials to conduct background checks on gun purchasers. But the Missouri bill aimed to prevent federal employees from enforcing federal law.
That wasn't its only constitutional defect. It also would have made it a crime to report that someone owns a firearm. As Nixon pointed out in his veto message, that provision would have allowed the prosecution of a newspaper that printed a photograph of a political demonstration by gun owners. That would be a clear violation of the 1st Amendment.
Missouri isn't the only state where pro-gun politicians have sought to nullify federal gun laws; similar proposals have been advanced in Ohio, Minnesota and Texas. The burgeoning nullification movement also has attracted opponents of the Affordable Care Act, who have called for states to declare Obamacare unconstitutional within their borders. And while federal courts can be trusted to strike down such bills if they become law, their approval by legislators endows them with an undeserved legitimacy.
Like judges, legislators take an oath to uphold the Constitution. They violate that oath when they attempt to nullify duly enacted federal laws.
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