Pro-gun conservatives ignore Constitution in misguided attempts to protect it

Gregg Re Editor
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Influential lobbyist Gary Marbut and dozens of elected pro-gun conservatives across the country are making it clear they’re willing to ignore most of the Constitution to preserve the Second Amendment.

In Montana, as The Daily Caller reported Thursday, both state legislative houses repeatedly passed a bill championed by Marbut’s gun lobby that would, with certain narrow exceptions, prevent federal agents from unilaterally arresting anyone living in the state, for any reason whatsoever. In South Carolina, as TheDC wrote in January, several tea party senators cosponsored a bill that would prohibit the federal government from obstructing access to firearms in the state in any way. And, as TheDC reported in January, Wyoming Republicans even introduced a bill calling for any federal agent who tries to enforce gun laws in the state to be sentenced to up to five years in prison and fined thousands of dollars. (RELATED: Read about the Montana bill, the South Carolina bill, and the Wyoming bill)

These are not throwaway online White House petitions that exist because people are bored on the Internet, or want to make a symbolic point. In each of these cases, legislators have reiterated that they believe these bills — which do not reject specific federal laws, but vast arrays of established government powers — are on firm constitutional ground.

“I take an oath to uphold, support and defend the Constitution of the United States and the constitution of Wyoming,” Republican state Rep. Kendell Kroeker boasted, explaining why he feels comfortable locking up federal agents on sight.

You might be wondering how all these initiatives square with the Supremacy Clause, which states that enforceable, constitutional statutes passed by the federal government trump all conflicting state laws, with the Supreme Court having the final word on the constitutionality of state laws. What’s the secret constitutional sauce that everyone’s been missing, then — the one that prohibits the federal government from unilaterally taking any enforcement action within a state, and effectively subjugates all legitimately enacted federal laws to the whims of state officials?

I posed that question to Marbut, who serves as president of the Montana Shooting Sports Association and has worked tirelessly with legislators to get the Montana proposal into law. He assured me that his bill, which requires federal agents to obtain local sheriffs’ permission before arresting state citizens for any reason whatsoever, is not a joke or a idle political statement, then replied.

Marbut: “The Supremacy Clause only applies to federal laws and actions that are well-founded in the U.S. Constitution, among the ‘enumerated powers.'”

This is obviously true, but gets us nowhere. The Supreme Court is in most cases the sole arbiter of whether laws are ultimately “well-founded” constitutionally, and has long determined that the Constitution’s enumerated powers also convey a variety of extensive, necessary capacities to the federal government. Among those capacities are the ability to effect arrests for a variety of offenses within state borders. Otherwise, it’d be awfully difficult for the federal government to enforce its taxing power (which is explicitly enumerated in the Constitution), or the Commerce Clause, or any number of other powers. The power to tax, as the Supreme Court has held for decades now,  necessarily implies the power to arrest those who don’t pay taxes. Marbut’s bill would unconstitutionally gut that power.

Marbut: “The enumerated powers do not include the ‘police power’ that has always been reserved to the states”

This is also self-evident, although it should not be taken to mean, as Marbut suggests, that only the states can exercise any kind of policing function within a state’s borders. Since the 18th century, federal agents for the postal inspections service have protected federal property within state lines. Since the 19th century, the Supreme Court has held that the federal government’s constitutional authority to regulate interstate commerce is a far-reaching power that permits the government to regulate and criminalize a host of activities — even the creation of home-grown marijuana gardens.

Because this power would be meaningless if it depended on constant state approval, the federal government can also enforce these laws and regulations through the use of agents Marbut would describe as “police.” While Marbut may not like that, the Constitution also provides that he’s not the one who makes the final call. And while Marbut may be right that certain federal anti-gun laws are unconstitutional and unenforceable under the Supremacy Clause, he is wrong that he or any state government can simply ban federal agents from acting within their borders as a result. The appropriate recourse is to challenge the specific federal provisions he has an issue with in court, or work on an amendment to the Constitution.

Marbut’s second contention, which he has circulated to like-minded legislators in his state, moves into the realm of constitutional fan fiction.

Marbut: “There is an ancient principle of law that if there is a conflict between two provisions of a co-equal body of law, the most recently-enacted must be given deference as the most recent expression of the enacting authority. Without that principle, no law could be amended, once enacted, and, for example, the 21st Amendment could not have repealed the 18th Amendment and we’d still have Prohibition.”

Putting aside the question of whether this “ancient principle” exists anywhere but Marbut’s head, it is inarguable that the 21st Amendment conflicted with the 18th Amendment, because it literally stated that it was invalidating the 18th Amendment. What conflict is there between the Supremacy Clause and later constitutional provisions? Marbut has an answer:

Marbut: “Under [our] claim, the Supremacy Clause would be in conflict with the Tenth Amendment. Since the Tenth Amendment was enacted subsequent to the Supremacy Clause, the Tenth Amendment must prevail as the most recent expression of the enacting authority. Thus the Tenth Amendment actually amended and changed the import of the Supremacy Clause. See the recent and unanimous decision of the US Supreme Court in Bond v. US.”

The suggestion that the Tenth Amendment invalidates the whole of the Supremacy Clause has never been upheld by any federal court, much less the Supreme Court. Laws have been upheld and overturned on Supremacy Clause grounds — including ones that enable federal law enforcement to effect arrests within state boundaries — for generations, despite cries from certain conservatives that the federal government should be able only to maintain an army and a postal service.

“Bond v. U.S.,” the only citation Marbut provided me, is a recent case that addressed whether a state resident has standing to challenge the federal enforcement of a chemical weapons treaty — not whether the thousands of laws and regulations passed by Congress and justified by other federal powers are valid.

And the Tenth Amendment went into effect less than three years after the Supremacy Clause itself did, as part of a package of amendments known as the Bill of Rights that were debated alongside the Constitution. If Marbut wants to claim that the Founders contradicted themselves in such a short period, he takes a dim view of their competence for a supposed constitutional conservative.

In short, there is no way Marbut’s bill — or any of the similar bills being floated across the country by gun-rights advocates — would pass constitutional muster or survive Supreme Court review. It would be far more economical for these conservatives to simply announce that they will not comply with federal laws, and it would be significantly more logical to wage thoughtful, targeted legal challenges at specific gun-control regulations or even the president’s suitability for office, rather than federal authority generally.

The Constitution does not provide all the answers to complicated questions of gun ownership or federalism, but that it contain some fundamental principles — all of them open to interpretations — and also prescribes specific procedures for handling the inevitable disputes that arise about them over hundreds of years. These legislators’ bills do not follow those procedures, and mistake their understanding of the Constitution for the only legitimate one. They unconstitutionally and irresponsibly deny the federal government all practical authority, instead of following the Constitution’s built-in checks against federal government overreach, such as the impeachment or amendment processes, or the federal courts of appeal.

For good measure, it is worth noting that Marbut also insisted in an email to TheDC that states can arrest federal agents “just like rapists,” and expressed glee that, like the Nazis, the “Nuremberg Defense of just following orders” wouldn’t offer them any reprieve.

By supporting people like Marbut and his ideas, elected, pro-gun Republicans across the country careen from showmanship to brinkmanship. They have unfortunately left nothing to the imagination — except, of course, how people so contemptuous of the country’s founding principles could possibly have been elected in the first place.

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Gregg Re