Don’t Comply. Nullify!

Tenth Amendment Center: Constitutional Conversation

There are currently more than two dozen states considering bills to nullify various federal gun laws around the country. Some address restrictions on semi-automatic weapons and large capacity magazines, and others address any and all federal rules, regulations, acts, or orders on firearms, ammunition and accessories.

Some of them seek nullification success by requiring all state and local agencies to refuse to enforce the specified federal acts.

For example, Montana House Bill 302 says the following:

A peace officer, state employee, or employee of any political subdivision is prohibited from enforcing, assisting in the enforcement of, or otherwise cooperating in the enforcement of a federal ban on semiautomatic weapons or large magazines and is also prohibited from participating in any federal enforcement action implementing a federal ban on semiautomatic weapons or large magazines.

Idaho House Bill 219 provides criminal charges for any state or local agents who help implement any new federal law, rules, regulation, or order that “requires any firearm, magazine or firearm accessory to be registered in any manner.”

Bills such as these have gotten strong support from the grassroots, much like the support being given to the many sheriffs around the country who have stated that they will refuse to enforce any of the newly proposed federal gun control measures.

The same thing is happening in many states to nullify NDAA indefinite detention powers. In Michigan, for example, Senate Bill 94 requires non-compliance with the unconstitutional federal act. It states, in part:

“No agency of this state, no political subdivision of this state, no employee of an agency of this state or a political subdivision of this state acting in his or her official capacity, and no member of the Michigan national guard on active state service shall aid an agency of the armed forces of the United States in any investigation, prosecution, or detention of any person pursuant to section 1021 of the national defense authorization act for fiscal year 2012”

But some folks, mostly self-professed libertarians, have been attacking such efforts. These same people who now support “audit the fed” as a path to “ending the fed” claim such non-compliance bills as a path to nullification are worthless. They call them weak, and many times they actively oppose them. The general concern? Well, since these bills don’t require state agents to have an armed standoff with federal agents, they supposedly have “no teeth” or are just symbolic.

NULLIFICATION

It seems to me that people are getting confused as to just what nullification is. So let’s clarify that first.

Nullification is any act or set of acts which has as its end result a particular law being rendered null, void, or just unenforceable within a specific area.

So, the question would go like this, “if the state isn’t blocking the federal government from carrying out their acts by arresting federal agents, aren’t we just saying that the state will sit by and watch the feds take our rights or kidnap us? This isn’t nullification!”

First off, nullification is less about the legislation itself and more about the end result. There are many ways to nullify a law. The courts can strike a law down. The executive branch could refuse to enforce it. People in large numbers might refuse to comply. A number of states could pass a law making its enforcement illegal. Or a number a states could refuse to cooperate in any way with its enforcement.

NONCOMPLIANCE WORKS

Here at the Tenth Amendment Center, we’ve been touting marijuana legalization efforts as a nullification of unconstitutional federal laws since our inception. And last fall, when voters in Colorado and Washington State legalized marijuana for the public at large, even the Department of Justice agreed. They put out a press release opposing these acts of the people, and referred to them as an attempt to “nullify.”

Why? Well, it’s because they know the same thing we do. Persistent, relentless noncompliance on a large scale will almost always end in a complete nullification. It may take time to get there, but get there we will. The feds know it, and they don’t like it. That’s why using state noncompliance laws to nullify an unconstitutional federal act can be so effective.

ENFORCEMENT

Federal enforcement of an unconstitutional law relies heavily on help and assistance from state or local agencies. A quick review of recent actions by the ATF, the DEA and even the FDA makes this case quite clear. Each of these agencies publish press releases on major actions, including convictions, busts, and the like. And a vast majority of those have a statement like this, “Federal, state, and local law enforcement agencies worked in partnership to carry out the investigation and execute the warrant.”

Of the ten most recent field releases from the ATF, every single one of them reported on significant state and local support to carry out the investigation and the arrest. The same goes for the DEA-Los Angeles division. And even with the FDA, nearly half of the recently published actions included praise for the assistance or even leadership of state and local law enforcement agencies in carrying out the actions.

Fact: The federal government does not have the manpower to enforce all its laws. State and local law enforcement often times carry the water during investigations and actual arrests.

If states pass laws banning both state and local participation – in any way – with the enforcement of a federal law – that federal law would never be enforced.

MOVING FORWARD

When trying to pass a state law that requires an arrest of violating federal agents, state legislators generally freak out. They’re unaware of the rich history in using this method to successfully nullify. And many of them have been taught incorrectly that only the Supreme Court can decide constitutionality.

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So, until more state and local politicians learn the truth, and more good people who already know it get in office, such nullification bills with strong interposition requirements will have a very hard time getting passed.

Now that doesn’t mean give up and go home. But it certainly does mean – don’t be an idiot. Demanding that your state go from 0-100 mph in one fell swoop is really just bad strategy. Work to get something strong passed now, but don’t be surprised if you meet a brick wall. And concurrently, work to get a good non-compliance bill passed too. That way, you can actually get something done.

It’s better to move forward now with something that will have good effect today and could even get the job done on its own, than to go for only the Hail Mary and keep the status quo. That means you’ve done nothing. As even the federal government already knows, if enough states follow your lead, you just might not have to push for the next step next year.

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