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 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 is a well-settled and well-supported legal principle—the federal governme
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
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