Have you ever had that experience of swatting an annoying fly only to have it get back up, dazed and confused, and come back around for another smackdown? That’s the life of your typical advocate of nullification. It seems that no matter how many times you swat down the same argument, it pops right back up, convinced as ever that it is right.
This brings us to a May 2nd editorial in the Montgomery Advertiser titled, “Alabama can’t nullify federal gun regulations.” The article’s confused purveyors of myth launched into a 470-word diatribe against the Alabama Senate for supporting Senate Bill 93, a measure that would declare that “All federal acts, laws, orders, rules or regulations regarding firearms are a violation of the Second Amendment.” The editorial mocks the bill’s author, State Senator Paul Sanford, as “plainly” not a constitutional scholar.
Exactly how a bill that affirms the Second Amendment to the Constitution is so patently foolish is not readily apparent. However, this doesn’t stop the editorial board from hitting all of the basic anti-nullification talking points.
Trying to strike the balance between labeling nullification as ridiculous and linking it with racism, the author points out that nullification has allegedly been unsuccessful since the 1830s, and only used by Southern politicians in response to the Civil Rights movement in the mid-20th Century. The runaway slaves protected by Northern nullification of the 1850 Fugitive Slave Act would probably have a different opinion. So too would the federal proponents of the 2005 REAL ID act who have seen their legislation unceremoniously ignored by 37 states. And those 19 states defying the federal government on weed? They’re just doing it because they hate black people, right?
Anyone who wants you to believe that resisting the federal government today is somehow associated with disgusting racists of the past is either totally ignorant or just big, fat liar. Or both.
The editorial also directs attention to the Supreme Court who “in case after case and by court after court” have struck down what Alabama is trying to do. Leaving aside the obvious fact that the Supreme Court’s decisions do not redefine reality – the esteemed Court did, after all, declare in the 1857 Dred Scott decision that African-Americans were not, nor could ever be, citizens – let’s investigate first just what Alabama SB93 is, and then the claim that all Supreme Court decisions squash the attempts of states to resist unconstitutional laws.
SENATE BILL 93
Alabama Senate Bill 93 (SB93) declares that “All federal acts, laws, orders, rules, or regulations regarding firearms are a violation of the Second Amendment,” and therefore, “are invalid in this state, shall not be recognized by this state, are specifically rejected by this state, and shall be considered null and void and of no effect in this state.”
If passed into law, the immediate effect would be that no state or local agent, employee, or asset would be authorized for us in the enforcement (or assistance in the enforcement) of any federal gun control measures – past, present, or future. Bill Sponsor Senator Paul Sanford affirmed as much during debate on the bill. He said, ”They’re not going to use our law enforcement officials to enforce their law that is unconstitutional.”
This would make a HUGE dent in any federal effort to further restrict the right to keep and bear arms in Alabama – and would be a big step forward for gun rights supporters there. As Judge Andrew Napolitano has said recently, such widespread noncompliance can make a federal law “nearly impossible to enforce” (video here). And in those limited situations where enforcement does occur, Rosa Parks has taught us all the power of “NO!” Passage of SB93 would mark the beginning of the end of federal gun control in Alabama.
In case the full state and local noncompliance doesn’t work as intended, SB93 includes a mechanism to take additional steps in the future. It reads, “The Legislature shall adopt and enact any and all measures as may be necessary to prevent the enforcement of any federal acts, laws, orders, rules, or regulations in violation of the Second Amendment to the United States Constitution.”
But, nothing is set and stone and the exact manner and process would have to be determined at a future date.
THE SUPREME COURT
There is absolutely ZERO serious dispute about the fact that the federal government cannot “commandeer” the states to carry out its laws. None. Even the Supreme Court has affirmed this multiple times.
In the 1992 case, New York v. United States, the Supreme Court ruled that Congress couldn’t require states to enact specified waste disposal regulations.could not specify how the states were required to dispose of radioactive waste.
In the 1997 case, Printz v. United States, the Supreme Court ruled that the federal government could not command state law enforcement authorities to conduct background checks on prospective handgun purchasers.
In the 2012 case, National Federation of Independent Business v. Sebelius, the Supreme Court ruled that a significant expansion of Medicaid was not a valid exercise of Congress’s spending power, as it would coerce states to either accept the expansion or risk losing existing Medicaid funding.
In each of these cases, the Supreme Court made is quite clear that their opinion is that the federal government cannot require the states to act, or even coerce them to act through a threat to lose funding. Their opinion is correct. If the feds pass a law, they can sure try to enforce it if they want. But the states absolutely do NOT have to help them in any way.
Toward the end of the editorial we finally get to the would-be coup de grace of the anti-nullifiers, the claim that federal law trumps state law. Adherents to this argument cite Article VI, Clause 2 of the Constitution, the so-called Supremacy Clause. The clause does actually say that federal law is supreme, but only those laws “which shall be made in pursuance” of the Constitution. Inasmuch as a federal gun laws violate the Constitution, they are not supreme.
Anyone who has passed sixth-grade civics is supposed to ignore this, which is likely more of an indictment of what is being taught in civics classes than of the constitutionality of nullification. Apparently sixth-grade civics class is where we learn to ignore basic logic. After all, nobody who adheres to the broad interpretation of the Supremacy Clause can explain why the rest of the Constitution exists. Why did the men who wrote the Constitution bother with all of the other enumerations and divisions of power if that could all be swept aside with one clause? That would be a little like building a fireplace to safely provide warmth and then lighting the couch on fire.
Nullification is not unconstitutional, bigoted or ineffective. Quite the opposite.
Nullification is constitutional. Nullification helps end racist programs like the federal war on marijuana. And nullification is absolutely effective. And these facts are probably why the partisan hacks at the Advertiser don’t want you to support it.
It is the best option for a people who would preserve their liberties.
If Alabamans seek the preservation of the right to keep and bear arms, it is legislation like SB 93 that should receive support.