Opponents of federal gun control won a victory in the Senate Wednesday. But without a doubt, Congress will pass some sort of gun-control legislation. And that act will certainly violate the Constitution.
Our founding document does not delegate firearm-regulating power to Congress or the president. No clause in the Constitution empowers the federal government to ban any type of gun or magazine, create a gun registry or implement a national system of background checks, and the Second Amendment actively restricts federal power in this area. It prevents the federal government from infringing on the right of people to keep and bear arms — even in the course of exercising otherwise legitimate federal powers. So although the feds have the power to regulate interstate commerce, they do not have the power to infringe on our Second Amendment rights in the process.
But the federal government long ago abandoned any pretext of constitutional restraint.
That elevates what happened in Kansas this week to the highest level of importance.
On Tuesday, Governor Sam Brownback signed the Second Amendment Protection Act, nullifying a wide range of federal attacks on the right to keep and bear arms in Kansas. Here’s the law’s text:
“Any act, law, treaty, order, rule or regulation of the government of the United States which violates the Second Amendment to the Constitution of the United States is null, void and unenforceable in the state of Kansas.”
In other words, the law prohibits state and local agents in Kansas from participating in any federal gun-control measures restricting the individual right to keep and bear arms as understood when Kansas became a state in 1861.
The new law also makes it illegal for any federal agent to enforce any law, treaty, order, rule or regulation regarding firearms manufactured, owned and remaining within Kansas’ borders. Violators could face felony charges. State prosecutors will serve federal agents violating the law with a complaint and summons.
In essence, Sam Brownback just told Barack Obama and his federal minions, “Bring it on!”
As Judge Andrew Napolitano recently pointed out, widespread noncompliance can make federal gun-control laws “nearly impossible to enforce.” Mass noncompliance with an unconstitutional federal act stands as both constitutionally sound and effective. In fact, the Northern states’ noncompliance with the Fugitive Slave Act of 1850 was so effective, South Carolina listed nullification of the act in its Declaration of Causes of Secession.
The new Kansas law stands as the strongest and most sweeping defense of the right to keep and bear arms in the entire country so far.
Note that this bold defense of the Second Amendment did not come from Washington, D.C. — indeed, no bold defense of the Second Amendment ever will.
James Madison envisioned state action as a check on unconstitutional power before the Constitution was even ratified. He laid out the blueprint in Federalist No. 46.
“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” (Emphasis added)
Madison makes an important point: One state can create issues for the feds. If multiple states refuse to comply with unconstitutional federal actions, they can stop D.C. in its tracks.
Other states need to follow the Sunflower State’s lead.
Mike Maharrey serves as the national communications director for the Tenth Amendment Center. He is also the author of Our Last Hope: Rediscovering the Lost Path to Liberty. You may contact Mike at: [email protected]