Nullification-lite: Why states are stepping in to protect the Second Amendment from the feds

Bruce Parker Freelance Journalist
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While New York Mayor Michael Bloomberg and Mayors Against Illegal Guns are confiscating firearms in apparent violation of the Second Amendment, a growing number of states are on track to end federal gun control once and for all.

On April 16, 2013, Kansas Gov. Sam Brownback signed SB102 making Kansas the first state to outlaw federal gun control. The bill, titled “The Second Amendment Protection Act,” declared federal gun regulations “void and unenforceable in the state,” and it prohibited state and local officials from enforcing any law, order, or treaty of the United States with regard to guns and ammunition.

The development drew a stern reaction from U.S. Attorney General Eric Holder, who issued a statement saying that states lack authority to block federal gun control laws. In  reply to the attorney general, Gov. Sam Brownback issued a statement of his own: “The people of Kansas have clearly expressed their sovereign will.”

Since that dramatic encounter, states across the country have chosen to stand with Kansas by advancing their own versions of the Second Amendment Protection Act. In June, Alaska enacted a version of the bill that applied to all guns. In September, Missouri passed its version through the House and Senate, but narrowly failed to override a veto from the state’s Democratic governor. The bill will be debated again in the upcoming legislative session.

According to StandWithKansas.org, a grassroots website that tracks the push by states to end federal gun control, approximately 30 states introduced versions of the Second Amendment Protection Act in 2013. The model bill listed on the site — which was formulated by the Tenth Amendment Center and subsequently endorsed by Gun Owners of America — prohibits state officials and agencies from enforcing federal gun control regulations.

The bill has some noteworthy teeth: violators who attempt to cooperate with feds could lose their jobs, funding, and contracts with the state. Also of note, the model legislation applies to all guns and ammo, not just guns and ammo manufactured and used within a state’s borders.

As lawmakers prepare for the start of the 2014 legislative session, Ohio, Virginia, and Missouri have pre-filed Second Amendment Protection Acts that would ban state implementation of federal gun control. Additional bills are forthcoming in West Virginia, South Carolina, and elsewhere.

Apparently even counties can pass versions of the Second Amendment Protection Act. In 2013, both Beaufort County, North Carolina, and Franklin County, Indiana, passed ordinances refusing local compliance with federal gun control.

Dormant for decades, state-led resistance movements have had enormous success in recent years. Dozens of state and local governments have successfully opted out of federal marijuana laws, the Real ID Act, the National Defense Authorization Act, and even federal immigration laws. As was true in those cases, states now seeking to “stand with Kansas” believe that simple non-compliance is the easiest and most effective way to stop federal overreach.

As distinct from Thomas Jefferson’s doctrine of nullification, state non-compliance comes from the non-commandeering doctrine affirmed in Supreme Court cases like Printz v. United States and the National Federation of Independent Business v. Sebelius (the landmark Obamacare decision). Simply put, the non-commandeering doctrine states that the federal government cannot compel states to assist in the implementation of any federal law.

This vestige of American federalism has big implications for gun control, health care, medical marijuana, education, and other state-federal disputes. Should a dozen or more states pass Second Amendment Protection Acts, the very idea of federal gun control becomes implausible, as the federal government lacks the funds, personnel, and mandate to implement its own laws.

As demonstrated by the more than half of U.S. states refusing to expand Medicaid or build state-run exchanges for Obamacare, when enough states refuse to carry out a program on behalf of the federal government, the federal program becomes effectively void or inoperable.

For America’s gun owners, the state-led movement to preserve the Second Amendment is good news. Combined with the hundreds of sheriffs nationwide who are refusing to enforce gun control out of loyalty to their constitutional oaths, a pushback by states has the power to end federal overreach — and perhaps end federal gun control altogether.

Bruce Parker is a freelance reporter and commentator specializing in state news and policy.