Nullification and the Firearms Freedom Act

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hitbackfirst

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On September 30, U.S. District Court Judge Donald Molloy threw out the lawsuit brought against the Federal government by the Montana Shooting Sports Association. The lawsuit was designed to validate Montana's Firearms Freedom Act which stated that firearms and firearm accessories manufactured and used within the State were not subject to Federal regulations. The 'logic' used by the judge was that because the firearms and accessories might, possibly, someday, perhaps, eventually cross state lines (in violation of the law in question) their manufacture and use was subject to Federal regulations pursuant to the Federal government's ubiquitous fallback defense for unconstitutional abrogations of liberty, the "commerce clause ." This is obviously ridiculous and diametrically opposed to the position that our Founding Fathers would take. The Tenth Amendment clearly states that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The power to regulate firearms is not given to the Federal Government anywhere in the Constitution. The only place where firearms are mentioned in the Constitution is in the Second Amendment where their regulation – any regulation is an 'infringement' of a right – is clearly prohibited. Montana is not the only state that has passed a Firearms Freedom Act. Arizona, Idaho, South Dakota, Tennessee, Utah, and Wyoming have all passed similar legislation and may be affected by Judge Malloy's decision.

The above is all background to introduce my topic for the day which is Nullification, also referred to as interposition. Nullification is a doctrine which, also it actually existed beforehand, was formalized by Thomas Jefferson and James Madison in the "Kentucky and Virginia Resolutions" of 1798 and 1799. The doctrine is surprisingly simple. As the Constitution is a compact (or contract) between each individual state and the Federal Government, an entity created by the sovereign states, any violation of that compact by the Federal Government may be, by a state legislature, nullified (declared null and void) within the borders of their state. There has always been and will always be differences of opinion when it comes to determining what federal laws are actually constitutional. The problem with allowing federal judges to make the final decision is that the federal judges are in fact part of the same federal government that made the laws in question. Imagine that two families are fighting over a piece of disputed property and that they are then told that a member of one of those families will act as the moderator of the argument and that he will have the final word. Does that seem reasonable? That is similar to allowing a federal court to have the final say on a federal law.

Nullification is not a partisan issue. It has been used by the liberal wing in California to allow medical marijuana in defiance of federal law; it has been used by both sides in multiple states to reject federal demands for an Orwellian biometric ID card as defined in the 'Real ID Act'; and it has been used by conservatives in seven states to create Firearm Freedom Acts which exempt certain firearms from existing federal law. Historically it has been used on many issues including in the 1850's when Wisconsin used it to nullify the Fugitive Slave Act and refused to return runaway slaves to their presumptive 'owners.'

Judge Malloy's decision on Montana's Firearms Freedom Act is not surprising. A federal judge sided with the federal government. The act clearly stated that the federal government was wrong in its regulations and it is just as wrong in its judge's decision. The principle of nullification still applies. The federal laws regulating firearms are unconstitutional and Judge Malloy's decision is just as unconstitutional. Both should be considered null and void within the seven states which have passed Firearm Freedom Acts. If the States do not use nullification to stem the tide of unconstitutional laws and regulations, then their citizens will be buried under an ever-increasing tide of federal usurpations. Nullification is legal, it is long standing tradition, and it has been employed throughout our Nation's history to stop the progression of tyranny. If you stand for freedom, if you stand for the right to keep and bear arms, and if you stand against tyranny, you must stand for nullification!

For an excellent in-depth study of this subject, I highly recommend Thomas E. Woods' book "Nullification: How to Resist Federal Tyranny in the 21st Century." http://j.mp/9uHeUr

If you are going to be in or around Boise, Idaho on November 10, 2010, I also recommend that you attend Mr. Woods' free lecture on Nullification at the Boise State University Special Events Center. http://thomaswoodsboise.com/
 
Imagine that two families are fighting over a piece of disputed property and that they are then told that a member of one of those families will act as the moderator of the argument and that he will have the final word. Does that seem reasonable? That is similar to allowing a federal court to have the final say on a federal law.
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This happens daily on both state and federal levels in criminal courts (The State vs. Smith/Jones/Doe/etc.; United States vs. Smith/Jones/Doe/etc.) and civil courts when the state/US are a party to the action.

Nullification will just be a concept until there are people willing to thumb their noses at the feds and put the concept to the test. CA and other states that allow medical marijuana seem to have plenty of people willing to break federal law re; medical marijuana. Until people are willing to produce firearms in violation of federal law and daring the feds to do something about it, the talk about nullification is just that, talk.
 
hitbackfirst, let me welcome you to the Firing Line. I've been wondering when someone would link the Firearms Freedom Act with State nullification.

"The judicial Power of the United States, shall be vested in one supreme Court," that from Article III section 1. The question arises as to exactly what the "Judicial Power" might be. Regardless of anything else, it includes the power and authority of Judicial Review.

Judicial Review is exactly the means by which the Court exercises its authority to say what the Constitution (or other law) means. It is an essential part of the checks and balances, conceived by the founders.

This authority comes from not just the Constitution itself ("The Judicial Power"), but from English Common Law. It was first exercised in Marbury v. Madison (1803). A good set of articles about this topic can be found, here.

Why is it important to understand this function of the Court? Because it is essential to the dismissal of the MSSF lawsuit and understanding why the court dismissed that suit.

The backstory is Raich v. Gonzales and current Commerce Clause doctrine. It is why this case was not listed in the Current 2A Cases thread. Because it is not about the 2nd amendment. It is not about States Rights (10th amendment), it is about the reach of the Commerce Clause as currently interpreted by the Court. That reach, currently delves into things that the founders would have thought impossible.

Moving on, then....

Nullification would require a Constitutional Amendment. To be sure, there has been a small amount of interest in this. As amending the Constitution goes, it would be far simpler to repeal the 17th amendment, since this is where the States lost their collective power in Congress.

The reality is that no Congressman, representative or senator, is going to give up their power or allow the States to resume theirs.
 
Nullification would require a Constitutional Amendment. To be sure, there has been a small amount of interest in this. As amending the Constitution goes, it would be far simpler to repeal the 17th amendment, since this is where the States lost their collective power in Congress.
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Not really. It could come down to a showdown between the federal LEO and the state police. (guess which side the National Guard would be on if they got pulled into it)

Now where's that "popcorn" smily...
 
Yes, it will be interesting to see where this goes....

smileyvault-popcorn.gif
 
And let's not forget Article VI of the Constitution:

"....This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding...."

Taking State marijuana laws, for example, to the extent a State has legalized or decriminalized marijuana use, it remains a federal controlled substance. Federal law remains enforceable by federal agents and in federal courts.

The tension between states' rights and the scope of federal authority has been with us since the first days of the Republic, and it will no doubt continue.
 
Of course, the problem with the CSA is that it relies upon an overbroad definition of the Commerce Clause coupled with an illegitimate reading of statutory construction.

Whatever else the Commerce Clause may allow, it cannot clobber amendments enacted after the fact.

The fact that the Supreme Court allows this, just shows that statutory construction is a myth, used only when convenient to the Court.
 
I think another approach is to argue that the commerce clause does NOT extend to firearms or the other zillion things that it has been extended to as a 'catch all.'

Using the commerce clause is an abuse of the clause, IMO.
 
If the state's position is to declare a 10th amendment exemption for firearms manufactured and retained in the state, then why ask a Federal court for permission in the first place? That's essentially asking your dad for permission to borrow the keys to your own car.

If you are drawing a line in the sand that you are essentially daring them to cross, you had better be prepared to enforce your position in the courts or otherwise, up to and including arresting federal agents for 10th amendment violations.

But you don't dare someone to challenge your position, then ask them if it's ok.

Welcome Hitbackfirst, that's quite a first post.
 
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Nullification would require a Constitutional Amendment. To be sure, there has been a small amount of interest in this. As amending the Constitution goes, it would be far simpler to repeal the 17th amendment, since this is where the States lost their collective power in Congress.
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You think it's a bad thing to have popularly elected senators? :confused:
 
You think it's a bad thing to have popularly elected senators?
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Yes. I think the current system is flawed. The senate was supposed to represent the states and the house the people. Now neither really represents either.

If we had the original system of 1 rep per 50,000 citizens we would have about 6000 reps. It is very difficult to corrupt a house of 6000 as the power is greatly diluted among a large body, with closer ties to the citizenry. If we stripped away most of the privilege and benefit of serving in congress, people who seek power for the sake of having power would be less likely to seek it since there would be less benefit. Those interests who seek to curry favor in congress would have a much tougher time. The representative would be much more concerned with the government than with his next campaign if he were held accountable by people who actually knew him.

With such a small electorate, just about anyone could be elected to the house, as he would only have to gather a few thousand votes and not be required to spend millions on a campaign. He would be more likely to be a man of the people.

To allow such concentrated power as we have now is to ask for corruption. Because the rep requires millions to run a campaign he now has to represent the special interests to get that money to succeed.

The problem in the senate is that it was supposed to have experienced leaders who were capable of making good decisions due to years of experience in government. They would represent the interest of the state at the federal level. If they failed to represent the interest of the state than they would be replaced fairly easily. There was no need to spend millions campaigning, as the candidate only had to influence a small state legislature to be elected.

Today the senator has absolutely no incentive to represent the state government and like the rep, every incentive to represent the special interest groups.

A congress of 6000 would not be that hard to manage with the communication tools that we have available today. It would also likely greatly slow down the pace at which the congress is passing laws, as it would be hard to get a consensus. Maybe the legislators would actually read the laws they vote on instead of what they think it means. It would also be more truly representative and the two houses would be pushed back into their original roles. Instead of whatever they do now.
 
Yes, a congress of 6,000 would be difficult to manage, or more correctly, would find it difficult to get things done. That's hard enough as it is today. The most likely development would for a smaller body to be elected from among the general population of the 6,000. They'd do most of the work outside of the committees, which I assume would still exist. And, as it is, a great deal of power rests on the committee chairs.

Moreover, it hardly follows that the common man would be more represented than he is now. After all, you only get to vote for one congressman now and if you candidate wasn't elected, you no doubt think you aren't represented at all, assuming you count yourself among the commoners. There would still be the problem of special interest groups, which we shall now define as a group whose aim is to influence legislation in a way contrary to they way you would like to have it done. Anyhow, senators and congressmen do their upmost to help their states and districts--to the detriment of every other state and district, so that argument doesn't hold water. What we need are congressmen who do what is right for the entire country (whatever that is!).

It is in fact fairly easy to replace senators and congressmen, at least in states and districts where there is both interested voters and a viable two-party system. But because of the seniority system, those with the most power in congress come from districts with little competition. Either way, the states are certainly represented.

I hope we don't have to fight another civil war to settle this.
 
ADB said:
You think it's a bad thing to have popularly elected senators? :confused:
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The whole purpose of having 2 houses within the Congress was to give 1) the people a direct representative and 2) the States a direct representative.

It was modeled after the British Parliamentary system (which was an expanded Roman System), wherein the common man had representation and the Nobles had representation (House of Commons - plebiscite; and House of Lords - Senators).

Popularly elected Senators are nothing more than another House of Commons.

Contrary to what BlueTrain and others may think, the States (as a body of Government, not the people of the States) no longer have any representation. This nullifies one of the checks and balances that was built into our system.

The manner of electing Senators was originally: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof,... Nothing in that Constitutional statement precluded the State legislatures from passing a statute, allowing the people to elect those Senators. Prior to the adoption of the 17th amendment, some (very) few States did exactly that.

We are supposed to be a Republic, with certain democratic under-trappings. By direct election of our Senators, we have stripped the States of their voice in the federal government and moved closer to mob rule (i.e. democracy).
 
Nullification would require a Constitutional Amendment.
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Only if you take a nationalist view of the union. Until the 1830's the union was universally seen under the compact theory. ie: "The United States ARE a nice place to live", not, "The United States IS a nice place to live". The nationalist view is a later invention by those who wanted centralized power.

The constitution was ratified under the understanding of the compact theory, this is especially clear in the Virginia ratifying convention and in the federalist papers. Had the original states been under the impression of a nationalist view, then the constitution would have been DOA. At the very least there would have been a serious discussion on the matter that we fail to see.

Nullification is almost as old as the republic. It's been used so many times in the past for everything from punitive tariffs, to fighting slavery, to protecting freedom of speech.

Here is some good stuff on the concept and history of Nullification if people are interested. Trying to sum up Nullification in one post is like trying to sum up molecular biology in one post. It just doesn't work, and I'll probably go off topic anyway, so the best thing I can do is simply refer people to some of the best stuff I have found on the subject for people who otherwise don't know anything about Nullification. I hope this isn't seen as off topic. (Not sure how, given that Nullification is talked about in the OP.)

Short version: Nullification: Interview with a Zombie 8:18

Long version: I use the "DownloadHelper 4.8a6" plugin for FireFox to download the lecturers so internet hickups don't screw things up. Tom Woods is also funny, so the lecturers aren't all dry and boring.

Thomas Jefferson and the Principles of '98 [Lecture 1] by Thomas Woods 1:28:00
States' Rights in Theory and Practice [Lecture 2] by Thomas Woods 1:23:00
The States' Rights Tradition Nobody Knows [Lecture 3] by Thomas Woods 1:30:00

I've listened to and read arguments against nullification, but have never found a really good links to post as a counter for the same reason I can't find any good arguments in favor of gun control. So you'll just have to do some searching on your own.

Al Norris

Very good post.

/Very good discussion everyone.
 
It is very difficult to corrupt a house of 6000 as the power is greatly diluted among a large body
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No--it would be ridiculously easy. For the same reason that you find a lot more political corruption on the state level than you do on the federal, because no one is paying attention. I live in a county of just under 50,000 people, so under that system we'd get our own congressman. And I can tell you unequivocally that the people who run this county are corrupt as all hell, giving themselves county-paid cars, appointing their girlfriends to jobs with $60,000 salaries, and running the place like it was their own private fief. Who's stopping them? Nobody, because enough people don't care about anything so "small."

The political system we have establishes the strictest rules for the highest jobs--the President and the Senate very rarely get free passes on anything. Congress gets more leeway. When you get down to the level of state legislators, even ones with a lot higher profile than a congressman representing 50k people would have, you have massive and systemic corruption.
 
The states are represented by senators and representatives. But I don't see that states are entitled to a different representation from "the people." The problem we are arguing about is the federal system, which functions in several other countries, too. But the consitutional convention did not invent the federal system. You could say it already existed when the country was formed, same as Germany. Don't let's make it a commonwealth of independent states.
 
If the state's position is to declare a 10th amendment exemption for firearms manufactured and retained in the state, then why ask a Federal court for permission in the first place? That's essentially asking your dad for permission to borrow the keys to your own car.

If you are drawing a line in the sand that you are essentially daring them to cross, you had better be prepared to enforce your position in the courts or otherwise, up to and including arresting federal agents for 10th amendment violations.

But you don't dare someone to challenge your position, then ask them if it's ok.
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Great post. A few states passed these laws as acts of defiance. It makes folks feel good to see the dastardly feds put in their place. Now we will see those new laws shot down one at a time.
 
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We have twice tried alternatives to our present system and I think this one works a little better. Besides, who here thinks state governments are any better than the national government?
 
Besides, who here thinks state governments are any better than the national government?
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Bingo!!!!

I live in OK and can tell you that this state is the most corrupt place north of the Rio Grand river. Okies never have the guts to clean up the mess themselves, the federal government almost always has to come in and do the job.

In the early 80s the feds charged about 200 county commissioners in OK with fraud. The FBiI operation was called OKScam. In the end the feds got 280 fraud convictions. Read: A Bad Day For The Good Old Boys.

http://prowlingowl.com/Comments/OKScam.cfm

In the mid 60s three OK Supreme court justices were found guilty of taking bribes. The lawer of one justice was the former mayor of OK City: The mayor went to federal prison for lying to a federal grand jury. The speaker of the OK house also went to jail. Read: Justice For Sale.

A few years ago the feds had to clean up a scandal that involved the issuance of truck license plates.
 
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