Most Read
Image 01 Image 02 Image 03

Crucial Components in the Creation of Successful 2nd Amendment “Sanctuary” States

Crucial Components in the Creation of Successful 2nd Amendment “Sanctuary” States

Unless we are clear in our distinction between Nullification and Anti-Commandeering, we risk dooming the movement just when it’s beginning to gain steam

Recently, Joel Osterhoudt of Reason published an interesting piece recognizing the rise in Second Amendment “sanctuary” states and cities across the nation. As Osterhoudt rightly recognizes, this movement largely relies on the model established by the immigration and marijuana sanctuaries that arose in progressive cities and states in response to the Trump Administration.

But in recognizing this important revelation in protecting individual rights, the article confuses two very distinct concepts—Anti-Commandeering and Nullification.

This isn’t just a mere academic dispute over legal terms created by and litigated in our legal system. The distinction is the difference between winning and losing. And while these states have placed themselves in a position to win, this confusion puts them in danger of losing—whether that be in a courtroom or the court of public opinion.

Nullification 

Nullification is a legal theory that has been around since the birth of our Republic. The idea is that state governments can “Nullify” federal law if the state believes the law is unconstitutional. This isn’t mere non-cooperation—this is a state affirmatively and actively preventing federal officials from enforcing federal law within a state’s borders.

Regardless of your views of the propriety or constitutionality of Nullification, it has never received any real support and has never been upheld by any court in the United States. When Thomas Jefferson and James Madison drafted resolutions for the states of Kentucky and Virginia arguing in support of Nullification, they received little support from their peers or other states.

For those of us who argue for interpreting the Constitution based on its Original Public Meaning—also known as Originalism—it is incredibly difficult to say the Framers intended for Nullification to be a part of our Constitutional Republic when the Framers had an opportunity to support Jefferson and Madison but chose not to.

Nullification arose again in the slave-owning south with John C. Calhoun at the head of the movement—arguing for South Carolina to Nullify any federal law banning slavery. It was again rejected.

In addition to failing to gain any popular support in the 18th and 19th Centuries, the Supreme Court has also repeatedly rejected Nullification. As early as 1809, the Supreme Court rejected a state’s attempt to nullify a federal court decision. Famously, the Court also rejected Nullification in Cooper v. Aaron, when certain states objected to the Supreme Court’s prior holding in Brown v. Board of Education. And despite the Tenth Amendment Center’s insistence on the propriety of Nullification, there is no reason to suspect the People or courts around the nation are open to revisiting that issue.

Recently, Nullification has come up in the context of immigration and drug laws—and now gun control.

Some cities have attempted to truly Nullify federal law, like Newton County, Missouri, which passed a law that purports to give the sheriff authority to arrest “any and all federal agents” trying to enforce federal gun control laws that “infringe on the people’s right to keep and bear arms.” To my knowledge, that Act has yet to be enforced or challenged.

But this affirmative rejection of federal authority, and even threat to jail federal officials, is not what the immigration and marijuana sanctuaries did during the Trump Administration, nor is it what the Second Amendment sanctuaries cited by Reason are doing now. Instead, those cities and states stand firmly on the well-established legal principle of Anti-Commandeering.

Anti-Commandeering 

Anti-Commandeering is a well-settled and well-supported legal principle—the federal government cannot force state officials to prosecute and enforce federal law.

State officials cannot be compelled—or “commandeered”—to complete federal tasks. Sure, states can voluntarily cooperate with federal law enforcement, which they often do in exchange for federal handouts, but states cannot be forced to do so.

This is the distinction that Osterhoudt highlights—by way of support from Michael Boldin and contrast from John Bolton—but ultimately misidentifies.

Bolton, in his interview with Breitbart, decried the idea that states could refuse to cooperate with the federal government. But Bolton also conflated Nullification with Anti-Commandeering. The South did not rely on Anti-Commandeering to argue for maintaining slavery. The South attempted to rely on Nullification. If Nullification were an available legal strategy, the South would have simply Nullified federal anti-slavery laws and not seceded from the Union.

But those cities and states that frustrated Bolton by refusing to cooperate with federal enforcement of immigration and marijuana laws relied on Anti-Commandeering to firmly place themselves in the legal right.

Michael Boldin, alternatively, cites Prigg v. Pennsylvania, a Supreme Court case that opened the door for establishing the Anti-Commandeering doctrine, not Nullification.

The problem is Osterhoudt (or Boldin) gets Prigg’s holding wrong. Prigg did not uphold Pennsylvania’s “right not to enforce the Fugitive Slave Act of 1793.” Quite the opposite. Prigg explicitly rejected Nullification and struck down the Pennsylvania law that prohibited individuals from acting under the Fugitive Slave Law of 1793 as violative of the Constitution’s Supremacy Clause (Art. 6, cl. 2).

The support for the Anti-Commandeering doctrine comes from a single, non-binding sentence in Prigg:

“As to the authority so conferred on state magistrates, while a difference of opinion exists, and may exist on this point in different States, whether state magistrates are bound to act under it, none is entertained by the Court that state magistrates may, if they choose, exercise the authority unless prohibited by state legislation.”

But Anti-Commandeering isn’t just some theoretical idea when it comes to federal gun control. One of the most recent Anti-Commandeering cases was directly related to a federal gun control law—the Brady Act. In Printz v. United States, the Supreme Court ruled that the portion of the Brady Act requiring “local chief law enforcement officers” to perform background checks on handgun purchasers was an unconstitutional violation of our dual sovereignty model—a violation of the Anti-Commandeering doctrine.

Based firmly on these principles, the concept of Second Amendment “sanctuary” states and cities is constitutionally sound.

By classifying what states and cities are doing as Nullification, we risk undermining their efforts. Nullification does not have popular or legal support. It has failed any time a state has tried it—whether in a courtroom or in the public square. And it has been employed by some of the worst people to call themselves American—those like John C. Calhoun.

But Anti-Commandeering is not only legally sound, it already has widespread support from people on both sides of the aisle. Progressives supported the principle to defend their immigration and marijuana sanctuaries. Now conservatives can get behind the concept to support Second Amendment sanctuaries. And, of course, libertarians will support any principle that better establishes a state’s power to refuse cooperation with the federal government.

Osterhoudt is not wrong to support the idea of the broader “sanctuary” movement. But unless we are clear in our distinction between Nullification and Anti-Commandeering, we risk dooming the movement just when it’s beginning to gain steam.

____

Cody J. Wisniewski (@TheWizardofLawz) is the Director of Mountain States Legal Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions. 

DONATE

Donations tax deductible
to the full extent allowed by law.

Comments

henrybowman | July 19, 2021 at 7:46 am

“Nullification… it has been employed by some of the worst people to call themselves American—those like John C. Calhoun.”

I don’t care. The magnificent Miranda Doctrine was created to acquit a rapist. The abhorrent Aviation and Transportation Security Act was created to protect innocent air passengers. The indispensable Fifth Amendment is used exclusively by criminals.

A law is either good or bad, and that’s never dependent on whose case it was written to cover, or who makes the most use of it.

    MattMusson in reply to henrybowman. | July 19, 2021 at 10:55 am

    But Today, every male in South Carolina is a member of the Militia by state law. I guess it is time to amend this to include females.

None of this matters to me. I am 70 YO and live in a household with four disabled people when last week a very drunk man kept coming by the house to ask crazy questions. The final time he showed up at 10PM and simply would not leave. I called the police and they came as quickly as they could, but, being that we live on a rural homestead, it took them 30 minutes to arrive. Having a legally owned firearm was the only thing that caused this drunk to leave and that firearm could have been the reason why he did not try something worse. They can pass whatever laws they want, but they are not taking my only means of protection away from me. Rural law enforcement knows all of this and that is why they are trying to protect our rights.

    henrybowman in reply to Cleetus. | July 19, 2021 at 5:40 pm

    I hate to bring the bad news, but rural law enforcement will protect your rights only until the rural area gets a woke leftist mayor. Given a choice between honoring their oaths and cashing their paychecks, law enforcement will follow the paycheck every time. Never, ever forget the lesson of Katrina — law enforcement mindlessly engaging in the single most egregious violation of their citizens’ constitutional rights in US history. For years, optimists had been claiming that “the military/police would never obey an order to confiscate guns.” Well, when given precisely that order, they did, and never even gave it a second thought.

Does the application of the two concepts depend on the Federal Government operating in compliance with its own laws and the underlying Constitutional principles (e.g. innocent until proven guilty, equal protection, etc.)? If one side plays by the rules and the other side does not, will the loser even be around to argue fairness?

Are we in a environment of law or an environment of war? Can the concept of Nullification bring the enemy more into the open (if they allow that to happen)?

Thank you for the good explanation of the concepts.

    Dathurtz in reply to TX-rifraph. | July 19, 2021 at 10:06 am

    I think there is really only one remedy to the feds ignoring their own rules. Fixing it would require replacing all the top people in every agency and almost all of the people under them. You can’t make a dishonest liar be honest.

    An interesting analysis, but I am not sure either is controlling in the long run. While “court decisions” (right up to and including SCOTUS) can be reversed (and sometimes are reversed in courageous deference to the Constitution), more frequently the path of least resistance is the “easy out”, stare decisis (i.e., cover for the fact that judges are fallible humans subject to political and physical threats). As the “founders” noted, “government is a necessary evil” (even one envisioned as “self-checking”).

    Regardless, states asserting their sovereignty and “reminding” the federal government that its “powers” flow from the states and the People offers hope. And while I will not yet begin to hold my breath, perhaps the inevitable push back from the federal government and courts will cause some states’ attorneys general to consider whether the time has come to question the ratification processes of various amendments relevant here is the 14th Amendment (but all “reconstruction amendments” and the 16th and 17th Amendments should be challenged).

    And, knowing there will be at least one commenter who will claim “an amendment to the Constitution cannot be unconstitutional”, I say if any amendment or purported amendment (challengeable as to the validity of its ratification) changes the “direction from which ‘power’ flows” or has the federal government removing restrictions on its limited delegated “powers” and thus undermines the fundamental concept of the Republic – it can be nothing other than “unconstitutional” as its genesis and sponsorship would be from “enemies within”.

      Milhouse in reply to Sisu. | July 19, 2021 at 11:59 am

      You’re a complete moron. Constitutional amendments amend the constitution. How can that very simple concept not penetrate your thick head? It’s a simple syllogism. It doesn’t matter what the constitution said before the amendment; once it has been amended it says whatever the amendment says. Therefore the amendment can’t be unconstitutional.

      Or do you have difficulty with the word “unconstitutional”? Do you think it means something other than “contrary to the constitution”?

      An amendment’s “genesis and sponsorship” are irrelevant. The constitution doesn’t even mention either of those terms. Nor is “the fundamental concept of the Republic”, as you imagine it, relevant in any way; the concept of the republic is whatever the constitution says it is, and when the constitution changes then the concept changes with it. It’s as simple as that.

        CommoChief in reply to Milhouse. | July 19, 2021 at 12:05 pm

        Milhouse,

        A bit harsh on Sisu, but the constitutional amendment portion is certainly correct.

          fscarn in reply to CommoChief. | July 19, 2021 at 12:53 pm

          If they thought they could get away with it and see success the left would declare the Constitution unconstitutional. The whole thesis of the Constitution is limitation.
          And fedgov does everything it can to expand its reach. If the document were followed to its letter and spirit, fedgov would be one-tenth its present size and the people would be richer with fewer strings tying their hands and ankles.

          CommoChief in reply to CommoChief. | July 19, 2021 at 1:04 pm

          fscarn,

          I don’t necessarily disagree with that. However there is a process, multiple processes in fact, for amending the constitution.

          We don’t have to agree with the purpose or the specific policy of the amendment for that amendment to be constitutional.

        Sisu in reply to Milhouse. | July 19, 2021 at 2:39 pm

        Such eloquence. And, predictability. ,,, Typical run of the millhouse.

          thetaqjr in reply to Sisu. | July 19, 2021 at 5:54 pm

          So I guess it’s possible to write and pass the 28th amendment rendering null and void the 27 preceding amendments. And that would be constitutional? Technically?

          It makes little sense to me to suggest that the Founders would have devised the Constitution with some obvious mechanism built into it so voters or legislators could destroy it through a technicality.

          A long time ago, I read, never confirmed it, that there was much ado in the convention about actually Delineating a set of rights for fear that, over time, folks would come to believe citizens had no rights beyond the ones so enumerated.

          I think the 10th was a compromise. And the 10th is defunct in its applicability to guarantee individual citizens rights not enumerated.

          Milhouse in reply to Sisu. | July 19, 2021 at 6:20 pm

          So I guess it’s possible to write and pass the 28th amendment rendering null and void the 27 preceding amendments. And that would be constitutional? Technically?

          Yes, of course it is. Just as the 21st repealed the 18th. And of course it would be constitutional. Not “technically”, but actually. How could you possibly have ever thought otherwise?????

          Seriously, how is it possible that a person able to string words into a coherent sentence does not understand such a basic idea? How can anyone think that there is any part of the constitution that can’t be amended? Even the equal representation of the states in the senate can be amended, by first amending Article 5 to allow it.

          Milhouse in reply to Sisu. | July 19, 2021 at 6:21 pm

          A constitutional amendment is not a technicality.

          And a constitution that can’t be amended is a tyranny.

          thetaqjr:

          Yes, that would be constitutional, and it would indeed render null and void the first 27 Amendments, including the Bill of Rights. At that point, the first 27 Amendments are no longer part of the Constitution; they exist only as historical commentary, just like how you can read all twelve proposed Amendments for the Bill of Rights (Articles 3-12 became what we know as the Bill of Rights; Article 2 was ratified in 1992 as the 27th Amendment, and Article 1 was never ratified) and read the original, un-amended Constitution.

          However, good luck getting that Amendment passed and ratified. You’d need to pass it through the Legislatures of 38 states, and most states — Red and Blue alike — won’t go for it, albeit probably for differing reasons.

          Milhouse:

          I have a similar discussion with my older kids when they ask about the nature of God. For example: God is omnipotent and can do “anything”. However, He cannot lie.

          Why not?, they ask.

          Because — I say — when God speaks, He makes reality. He spoke the entire universe into existence. Reality shapes itself around His words. He literally cannot lie, because if He says something that is not true, it becomes true the moment He says it.

          Constitutional Amendments are similar. They cannot be unconstitutional, because upon ratification they ARE part of the Constitution. The Constitution, by definition, cannot be unconstitutional.

          It’s not hard to understand, but I’d bet a lot of people — far too many, in my opinion — just haven’t considered it in that light. No need to call names.

          thetaqjr in reply to Sisu. | July 19, 2021 at 8:14 pm

          That’s my point, my question, my worry. If the Constitution can be amended, without limit, to say anything the states decide it should say, that in itself is tyranny one step removed.

          Milhouse in reply to Sisu. | July 20, 2021 at 3:23 am

          Archer, if that’s the way your mind turns you may enjoy The Raven Tower, by Ann Leckie. It’s a novel whose premise is that what a god says must be true; therefore if it says something that isn’t currently true, and its power isn’t sufficient to make it true, it dies. A canny god is therefore very careful what it says, and tries very hard not to say things that it doesn’t already know to be true.

          Milhouse in reply to Sisu. | July 20, 2021 at 3:26 am

          thetaqjr, a constitution has to be amendable. If it isn’t then how can it be legitimate? How is it not a tyranny? What right do the adopters of a constitution have to enforce it on their descendants forever? Such a constitution loses all legitimacy and will be overthrown by force.

          Milhouse in reply to Sisu. | July 20, 2021 at 3:58 am

          Archer, you’ll also like C.S. Lewis’s explanation of why it’s invalid to ask, “If God can do anything, can He create a stone that He can’t lift?”

          “Meaningless combinations of words do not suddenly acquire meaning simply because we prefix to them the two other words, ‘God can.’ It remains true that all things are possible with God: the intrinsic impossibilities are not things but nonentities. It is no more possible for God than for the weakest of His creatures to carry out both of two mutually exclusive alternatives; not because His power meets an obstacle, but because nonsense remains nonsense even when we talk it about God.”

          Milhouse:

          I have read — and found thoroughly enjoyable and enlightening — C.S. Lewis’ various essays on his faith. Those are classics I return to periodically, and I always find something I missed on prior reads.

          RE: “If God can do anything, can He create a stone so large He can’t lift it?” — I always got a kick out of the semi-glib response: “God is so great, He can answer that question.” 😀

          I’ll have to check out The Raven Tower. That does sound interesting! Thanks for the recommend!

          lurker9876 in reply to Sisu. | July 20, 2021 at 11:41 am

          From my readings and observation, the Election Count Act of 1887 contradicts the 12th amendment; yet, there were two groups of lawyers and law professors that advocate the 12th amendment and the other advocating the ECA 1887.

          How can the ECA 1887 be considered constitutional, if contradictory to the 12th amendment? And how come US Congress never bothered to address this issue?

          Milhouse in reply to Sisu. | July 21, 2021 at 1:03 am

          Lurker, nobody claims that it can contradict the 12th and still be constitutional. That is impossible, and there is no “group of lawyers and law professors” that maintain such a position.

          I don’t know what “groups” you’re referring to, but the overwhelming majority of legal opinion is that it doesn’t contradict the 12th. That was certainly the congress’s opinion in 1887, and it remains the congress’s opinion to this day. Some people, a small minority, have recently claimed that there is a contradiction; that would of course mean the act was never a valid law. No court has ever even considered the question, because nobody has ever challenged it.

      Sisu in reply to Sisu. | July 19, 2021 at 10:15 pm

      All just do your own investigation (unlike the “run of the mill(guy)” I don’t need you to agree); it’s a discussion –

      Search: “can a constitutional amendment be unconstitutional” there are opposing arguments – does one preserve a sound foundation and build upon it, or as in a “millhouse” allow the prevailing flow dictate the singular direction and force of your every move ? … Millhouse stones are inanimate objects only the “don quixotes” of the world cannot see them for the rustling noise the sails that move them make; by themselves they are cold, lifeless … only to have purpose when “doers” or moss have need.

        Milhouse in reply to Sisu. | July 20, 2021 at 3:28 am

        You’re a ****ing idiot. There are no “opposing arguments”; anyone who argues that an amendment doesn’t amend the constitution is also a ****ing idiot.

Aside from the standard demonizing and dehumanizing of gun owners and firearm manufacturers, there has actually been very little action from the Biden* regime.

The real assault on the 2nd amendment – the entire Bill of Rights, actually – is coming in the form of the not-dead HR1. If Congress fails to pass it, the next strategy will be to implement most or all of HR1 via executive orders backed up by a crooked and corrupt Federal judiciary. Before firearms can be taken, elections at ALL levels must be rendered moot. Once that is accomplished, the FBI and ATF (and eventually the military) can be used to Waco gun owners.

    The thing is, there are more of us – be several orders of magnitude – than there are of them. They are going to run out of enforcers long before we run out of resisters, assuming we maintain our will to resist.

      Correction: “by several orders…”

      We need an edit function…

      I would add another component to your analysis: economic. Rising inflation is eating away at our buying power faster than Biden* can print money. Redistribution in the form of punishing taxes and “racial reparations” will remove still more resources from the productive. “Green energy” will be another blow to an already reeling economy. The Krazy Kovid Karens are talking about another shutdown to combat this or that variant of the Wuflu. And if the “War on Domestic Terrorism” gets going millions of productive citizens will be jailed or killed, delivering yet another blow to the economy.

      In other words, the Communist regime running the US may not be in power long enough to confiscate guns before we get economic collapse.

    The problem the d/progressive face with HR1 or other attempts to assert federal control of elections is that Congress can only do so over House and Senate elections.

    Even there the States retain the right to select ‘the place of choosing’ for the Senate elections. The States have control of Presidential elections.

    That’s why I advocate for passage of State legislation that would condition a bifurcation the the elections process in the States. If HR1 ECT are signed into law then the State legislation kicks in.

    What would this look like? Separate ballots for House/Senate and all other offices. Then the States simply go about the business of running their voter registration and election systems, laws and procedures.

    If the Congress doesn’t want to utilize the States voter registration systems, voter integrity and ballot security systems then the Congress is free to establish a separate and parallel system for the House and Senate.

    The feds can’t simply impose their election policy preferences upon the States and require the States to comply. The States can’t be commandeered or conscripted to serve federal policies.

    If the expectation of those pushing these federal elections laws is that the States must continue to voluntarily cooperate in creating and establishing a mechanism for House and Senate elections they need it pointed out that the States do not have to do so.

    The States have historically done so because, until now, Congress hasn’t asserted it’s power to override the States in the election of House and Senate. Once the feds do so then they assume responsibility for all aspects of those elections from registration to final tally.

      Milhouse in reply to CommoChief. | July 19, 2021 at 12:07 pm

      Nope. States have to hold congressional elections, or they don’t get representation. And they have to hold them as congress dictates (except for the location of polling places for the senate). If someone shows up in Washington claiming to represent the state, but they were not lawfully elected, then the house or senate won’t and shouldn’t seat them.

      Even senate polling places are subject to the 15th amendment, and the equal protection clause of the 14th, so if a state wanted to be a dick and make people vote for their senators in a different location from where they vote for everything else, and they put the senate polling places where it’s harder for people of one race to get to than it is for people of another race, then congress could stop that. The same applies to presidential elections (if a state chooses to have those) and to internal state elections.

        CommoChief in reply to Milhouse. | July 19, 2021 at 12:25 pm

        Perhaps I didn’t make it clear. If the feds refuse to administer their policy preferences contained in the law they promulgated then the State simply administer the elections under State law.

        In this eventuality the question of seating will turn on whether the decision is made to disenfranchise voters. Maybe they will and maybe they won’t.

        The status quo and historical tradition has the States administer the process for elections of HoR and Senate. Should Congress disrupt the status quo then they assume responsibility for administration of this new federal law.

        A federal election law that asserts the right of Congress to modify elections of HoR and Senate isn’t a special or elevated type of law. It isn’t accorded any unique attributes.

        I contend that the States may not be compelled or forced or conscripted to administer federal laws. Not immigration law or tax law nor this law.

        We have have gone through this discussion previously and we disagree. That’s fine. It’s a free country.

          Milhouse in reply to CommoChief. | July 19, 2021 at 6:31 pm

          You made yourself perfectly clear. You just don’t seem to understand. The federal government does not run congressional elections. States do. But congress has the right to regulate them, and the states must hold the elections according to congress’s regulations.

          If they don’t, not only are they in violation of the constitution, which says: “When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies”, but also they don’t get any representation in congress. An election held contrary to congress’s regulations is an illegal election, and the winners are not entitled to be seated, and won’t be.

          Congress will simply go ahead without anyone from those states, and will make laws without their input, which will be the supreme law of the land, overriding anything to the contrary in any state law or constitution. That’s what the US constitution says.

          CommoChief in reply to CommoChief. | July 19, 2021 at 7:09 pm

          Milhouse,

          You are certainly welcome to cite the specific text of the Constitution which declares that the States are required to administer elections for HoR and Senate in accordance with the preferences of Congress or have their representation forfeited.

          When you do so your argument will be much stronger than your opinions and speculations about the matter.

          The fact is no such text exists. There are strands of other portions of text which might be woven together to form the tapestry you claim exists.

          That tapestry you are weaving might even survive real world pressures and judicial scrutiny. Until your theory is tested it is a theory not a fact.

          Milhouse in reply to CommoChief. | July 20, 2021 at 3:36 am

          CommoChief, I’ve already cited the text that when there’s a vacancy in congress, as there is at least every two years, the state executive shall issue writs for an election. Not “may”, “shall”. So if it doesn’t hold an election it’s in breach of the constitution.

          And the constitution explicitly gives congress the right to regulate how congressional elections are to be held. It follows that any purported election a state holds that doesn’t comply with those regulations isn’t an election. So what right would those who win it have to be seated in congress?

          The constitution also makes congress alone the judge of who has been elected to congress and who hasn’t. So it clearly has the right to turn away anyone purportedly elected in a process that is itself unconstitutional because it doesn’t comply with congress’s regulations. And it surely will. That will not exempt the state from having to comply with all federal laws, because the constitution says that they are the supreme law of the land.

          CommoChief in reply to CommoChief. | July 20, 2021 at 9:22 am

          Milhouse,

          As I said your tapestry may very well be correct. You may even be correct about your prediction as to how Congress will react should they be presented with these factors.

          Then again you might not. IMO we should all account for the truth that none of us are omnipotent and that people and institutions don’t always act as expected.

Cody,

I have a slight quibble with your analysis. Nullification isn’t a universal good. That much I agree with. However that doesn’t mean Nullification is always uniformly bad.

The States retain Sovereignty. They have a role to play in our Constitutional balance of interest and powers. Nullification is an important part of that balance within our federalist system.

Let’s say the Federal government passes a statute that is clearly unconstitutional, based on the text and case law. Is a State then required to sit passively by and allow federal agents to trample the Constitutional rights of the Citizens of that State?

IMO, the answer is no. The State could, under such circumstances, actively resist and prevent these unconstitutional actions. In fact they must or be fore sworn of their oaths and duty to ‘protect, preserve and defend’ both the State and US Constitution.

This doesn’t extend to disagreement over basic policy differences that do not turn on constitutional questions. Clearly the State couldn’t stop the IRS from tax collection. They could prevent an obvious constitutional violation; feds decide for some bizarre reason to place Soldiers into private homes in peacetime.

In the unlikely event of such an obvious constitutional violation I contend the State has a duty to actively resist such a course.

Overall I agree with your analysis but would simply reserve nullification for obvious constitutional violations v throwing the concept overboard entirely.

    Dathurtz in reply to CommoChief. | July 19, 2021 at 10:27 am

    At the very least, there is value in making the feds deal with it. Sheriffs arrest some of our Stasi and it pops the issue front and center for the nation. It might wake up enough people to see what is happening in our nation.

    Milhouse in reply to CommoChief. | July 19, 2021 at 12:10 pm

    If a state thinks a law is unconstitutional it can sue, and the courts will decide. If the court says the law is constitutional and the state arrests a federal agent for carrying it out, then the state agent who arrested that person will be arrested by the feds, and any other state agent who assisted that false arrest, or who ordered it, will also be arrested.

      CommoChief in reply to Milhouse. | July 19, 2021 at 12:37 pm

      Maybe they would and maybe they wouldn’t. I am confining use of nullification to actual clear cut constitutional violations. A 3rd amendment violation was my example.

      In that case a Sheriff could and should intervene proactively to prevent an obvious constitutional violation. The States and their subdivisions are under no obligation to sit sit idle and simply observe their Citizens being abused.

      My recommendation to federal policy makers would be to steer clear of even approaching constitutional limits much less cross them. Consent of the governed is a proper guide. If that consent is withdrawn due to federal overreach…. best we avoid that eventuality by staying well within the constitution.

      Note I make this argument for very clear and obvious constitutional violations. A mere policy disagreement that doesn’t turn on a constitutional question isn’t sufficient, IMO to warrant a confrontation or intervention by the States or their agents.

    henrybowman in reply to CommoChief. | July 19, 2021 at 6:06 pm

    Third Amendment violations are not as nonexistent as most people believe.

    Third-party presidential candidate Andre Marrou was told he would have to vacate his hotel room because the incumbent’s protection detail “needed the entire floor.” He refused, citing the Third, and was left alone.

    During the Elian Gonzales raid, a neighbor family was told to vacate their own home so that BATF could use the residence as a listening post and staging area. No case was brought under the Third, but it was a clear violation.

      Milhouse in reply to henrybowman. | July 19, 2021 at 6:33 pm

      The third amendment is a nullity, because it only applies in peace time. The USA is currently at war, and it appears that it will be at war for the foreseeable future, so the third has no application.

      CommoChief in reply to henrybowman. | July 19, 2021 at 7:22 pm

      henry,

      Exactly right. During a declared war troops could be quartered but only as specified under law, which doesn’t exist. No law to administer how, under what circumstances, payment, a process for making claims ECT and can’t be done even at war.

      The abomination of a use of force authorization isn’t a declaration of war. It’s similar but similar doesn’t meet the specific requirement.

      As we are not in a declared state of war, we are at peace and the owner must give permission.

        Milhouse in reply to CommoChief. | July 20, 2021 at 3:48 am

        What “specific requirement”? An authorization of the use of force is a declaration of war. Do you seriously imagine that for a declaration of war to be valid it must contain the magic words “We Declare War”?! There are no magic words, and no court in history has ever said there are. A declaration of war is any resolution that, well, declares war. Which an AUMF does.

        In addition, a state of war does not require a declaration. That’s also long established law, which has never been disputed. The USA’s first war, the “Quasi-war” with France, was never declared, and yet the courts held that there was indeed a state of war. We were fighting the French, the French were fighting us, that’s the definition of a war. In the Civil War too, the courts held that the war began the moment the shooting started, not when Congress finally got around to declaring it.

        That’s why it was so important that on the evening of Sep-11-2001 George W Bush went on TV and declared that that day’s attacks had not been simply a crime but an act of war, and that the USA was now at war, not just with those who were behind those attacks but with the entire Islamist terrorist network to which they belonged. He was using his constitutional position as commander in chief to officially recognize what had happened and its legal consequences, and he didn’t need congress’s approval for that.

          CommoChief in reply to Milhouse. | July 20, 2021 at 9:02 am

          Actually I do in the case of the 3rd amendment. The founders knew what a quasi war or something less than war but quite peace was.

          They specified that in time of war and in time of peace, rejecting the inclusion of any middle state. Congress has the power to declare war. The executive does not have that power.

          The executive can only take actions that are immediately necessary to defend without Congress.

          Milhouse in reply to Milhouse. | July 21, 2021 at 1:07 am

          CommoChief, you’re simply wrong. The courts were very clear that the Quasi-War was a war. Not a “sort-of” war. A state of war existed, and all the laws that apply in wartime were in effect throughout its duration. Therefore the third amendment was in abeyance.

texansamurai | July 19, 2021 at 11:19 am

regardless of the doctrine applied, a clear violation of the 2nd will depend on some type of ” enforcement “–in this part of the world, regardless of what anyone in dc proclaims, that sort of activity is liable to result in serious injury or worse for the ” enforcers ”

that is the real rubicon in all of this–are any ” authorities ” willing to risk their personal asses to deny a constitutional right in force for over 200 years?

Nullification does not have popular or legal support. It has failed any time a state has tried it—whether in a courtroom or in the public square. And it has been employed by some of the worst people to call themselves American—those like John C. Calhoun.

And it has been advocated for by some of the best people to call themselves Americans, including the likes of Thomas Jefferson and James Madison. You said so yourself.

It doesn’t matter who supports what law. As someone else said the Fourth, Fifth, and Sixth Amendments are largely invoked by criminals or suspected criminals. I’d add that the Eighth Amendment exclusively protects criminals. It’s inconceivable that the Founders didn’t realize that would be the case, but they felt those rights important enough to include regardless. (After the abusive “criminal justice” system under King George III, I don’t blame them.)

Nullification is a tool; like any other, it is neither righteous nor evil. It may not have popular or historical support, but that doesn’t make it bad. Just unlikely to succeed on its own merits.

As far as “sanctuary” resolutions (of any flavor), I think the drafters would be wise to cover all their bases. One clause nullifies the federal law and optionally empowers state/county/local LEOs to arrest FLEAs for enforcing them (Nullification); another declares that state/county/local LEOs will not expend resources enforcing it (Anti-Commandeering); and a final clause says that if any item in the resolution is found to be unenforceable or invalid, the rest stand. (That last is known around here as a “severability clause”; it prevents a whole bill from being invalidated by one unconstitutional line.)

Just my $0.02.

    henrybowman in reply to Archer. | July 19, 2021 at 6:09 pm

    “As someone else said the Fourth, Fifth, and Sixth Amendments are largely invoked by criminals or suspected criminals.”

    Even stronger — the Fifth Amendment, in particular, cannot be invoked by a non-criminal. If you are not a criminal, you simply cannot use it.

      Milhouse in reply to henrybowman. | July 20, 2021 at 3:52 am

      Sure you can. Even if you’re referring only to the prohibition against compelling anyone in a criminal case to be a witness against himself, many an innocent person has invoked and relied on that clause.

      Building on what Milhouse said, the 5th Amendment protects several rights, only one of which — the right against self-incrimination, which benefits criminals and non-criminals alike — derives the phrase, “plead the 5th”.

      There’s also:
      – Grand Jury indictments required (applies to criminal suspects, not necessarily criminals)
      – Double-jeopardy protections (again, applies to criminal suspects, and particularly those who were found by a jury to be non-criminal)
      – Due process of law (applies to both criminals and suspects)
      – Just compensation for private property taken for public use (little or nothing at all to do with criminal proceedings)

      The right against self-incrimination gets the most press, but like the 1st Amendment, the 5th has multiple clauses that cover a lot of ground.

I’ve kept a record of 1,871 2nd Amendment Sanctuary counties, which are located in state sanctuaries or have declared it for themselves. I’ve read many, certainly not all, of these resolutions and found both sides with most applying the anti-commandeering principle and only a few that used the nullification argument. This issue seems a certainty to be considered by the Supreme Court and both sides will have to choose their cases carefully.

Anti-Commandeering should also mean that Federal officials who attempt to arrest citizens in the name of “enforcing this federal law are not entitled to have local police protection while doing it.”

    Milhouse in reply to SDN. | July 20, 2021 at 3:49 am

    Of course they aren’t. That’s always been the case. That’s why the federal slave-catchers had to bring their own protection. State police could not interfere with them, but they didn’t have to lift a finger to help them.

Font Resize
Contrast Mode
Send this to a friend