State lawmakers around the nation are increasingly attempting to defy federal control over firearms through so-called “nullification” laws, with more than 200 such bills introduced over the last decade, a News21 investigation found.
Particularly in Western and Southern states, firearms are increasingly the weapon of choice for a political movement that aims to enshrine states’ rights and void U.S. gun laws within their borders.
“I think the president and the majority of Congress, both in the House and Senate, are just completely out of touch with how people feel about Second Amendment rights,” said Missouri state Sen. Brian Nieves, who has fought for bills to weaken the federal government’s authority over firearms in his state.
In Idaho, the Legislature unanimously passed a law this year to keep any future federal gun measures from being enforced in the state. In Kansas, a law passed last year says federal regulation doesn’t apply to guns manufactured in the state. Wyoming, South Dakota and Arizona have had laws protecting “firearms freedom” from the U.S. government since 2010.
A News21 analysis shows 11 such bills in nine states have been signed into law, mainly in Western states, along with Kansas and Tennessee. Three more passed but were vetoed by governors in Montana, Missouri and Oklahoma. Many others failed to pass, even in conservative states.
Nullification laws have been introduced in more than three-quarters of U.S. states since 2008. More than half of those bills have come in the last two years, after the shooting at Sandy Hook Elementary School in Newtown, Connecticut. All but three have been introduced since President Barack Obama took office.
“Not only is it our right in state legislatures to do this, it’s our obligation to do it. Somebody’s got to put a 'whoa' on it.”
Supporters of such legislation say that it is an effort to correct the federal government’s overreach.
“(The federal government) is diving off into areas unchecked that they’re not supposed to be involved in,” said Montana state Rep. Krayton Kerns, who introduced a bill in 2013 to limit the ability of local police to help enforce federal laws. “Not only is it our right in state legislatures to do this, it’s our obligation to do it. Somebody’s got to put a 'whoa' on it.”
Opponents counter that the laws that seek to negate federal gun regulation are themselves unconstitutional.
The Brady Center to Prevent Gun Violence filed a lawsuit on July 9 to stop enforcement of Kansas’ recently passed Second Amendment Protection Act, which makes it a felony for federal officials to enforce U.S. firearms law in the state.
“The law should not be called the Second Amendment Protection Act, it should be called the Gun Violence Preservation Act,” said Jonathan Lowy, director of the center’s Legal Action Project.
Two types of bills are the primary vehicles for the nullification movement.
The first type holds that federal laws do not apply to firearms manufactured and sold within a given state. These bills cite the Constitution's interstate commerce clause to argue that the federal government has no power to regulate trade within states.
In Utah, for example, guns made, purchased and used in the state are exempt from federal laws under state legislation signed into law in 2010. Commonly known as the Firearms Freedom Act, similar versions of the law have been debated during 78 legislative sessions across 37 states since 2004.
The other approach says gun regulation falls outside the scope of the federal government’s power, making it state territory. Such bills, often titled the Second Amendment Preservation Act, usually say state officials cannot enforce federal gun laws or limit their ability to do so. Some bills seek to punish any state employees or elected officials who help federal officials.
“It's basically saying, ‘Federal government, if you want to enforce federal firearms laws in the state of Arizona, you're welcome to do it, but we won't give you any assistance. So in other words, no state police help with (Bureau of Alcohol, Tobacco, Firearms and Explosives) raids, no local law enforcement enforcing a federal gun law, none of that,” said Mike Maharrey, a spokesman for the Tenth Amendment Center, a for-profit nullification group based in California.
The Brady Center’s lawsuit against Kansas shows that gun control advocacy groups view nullification as a threat.
“This is a matter both of constitutional law and common sense,” said Stuart Plunkett, a Brady Center attorney in that case. “Our system of laws would break down if each of the 50 states could offer its own interpretation of congressional authority over interstate commerce.”
The bill’s sponsor and co-author, Republican Rep. John Rubin, said he believes it’s the Brady Center that errs in interpretation of government authority regarding intrastate commerce.
“The founders never envisioned … that a modern federal government would construe the commerce clause so broadly as to enable … (it) to regulate every aspect of the lives of the states,” said Rubin.
The Tenth Amendment Center responded to the Brady Center suit with a pledge to ramp up its campaign to pass Second Amendment Preservation Acts in more states in 2015.
In Kentucky, Rep. Diane St. Onge has already introduced a nullification bill for the 2015 session. Although she’s expects a court challenge from the federal government if the bill is passed, she believes it will hold up.
“We’re making a statement here about what we hold true, what we believe in here in Kentucky,” St. Onge said.
The federal government has said little on the matter so far, but U.S. Attorney Eric Holder rebuked Kansas for its law in April.
“In purporting to override federal law and to criminalize the official acts of federal officers, (Kansas’ law) directly conflicts with federal law and is therefore unconstitutional,” Holder wrote in a letter to Kansas Gov. Sam Brownback, who signed the bill.
The National Rifle Association doesn’t support nullifying federal gun laws because that could undo NRA legislative success in Washington.
“I think that is a misguided distraction,” said Todd Rathner, an NRA board member from Arizona. “I empathize with what they’re trying to accomplish, but I am not convinced it’s the right way to do it.”
A movement born in Montana
The nullification movement traces to Montana, where one man has been pushing these bills since 2005.
Gary Marbut, president of the Montana Shooting Sports Association, has written scores of gun bills that have been introduced in the Montana statehouse, 64 of which have become law.
Marbut, who lives in a geodesic dome on his family’s ranch near Missoula, has failed in three bids for a seat in the Montana Legislature, but he has succeeded in starting a movement to weaken federal authority over guns across the country.
Marbut, who is running for state representative again in 2014, said his focus on guns is almost incidental. His true aim is challenging federal authority.
Justine McDaniel / NEWS21
Guns line the basement walls of Gary Marbut's home. He said he doesn’t know how many guns he owns, and if someone called to ask, he would never tell.
“I would like to see some of this power shifted back from governments, especially the federal government, to the states and to the people,” Marbut said.
It took the Montana Legislature three tries to pass the first Firearm Freedoms Act, written by Marbut, in 2009.
“I designed it as a way to test federal commerce-clause power using firearms as the vehicle for the exercise,” Marbut said. The law said that guns made in Montana are not subject to federal law.
Almost immediately, Marbut announced he would manufacture a Montana-made rifle. He was challenged by the Bureau of Alcohol, Tobacco, Firearms and Explosives, so he sued for his right to make the guns.
Eventually, the suit made it to the 9th U.S. Circuit Court of Appeals, which ruled against Marbut, saying the Supreme Court had established precedent upholding federal regulation of a commodity under the commerce clause. He tried to take the case to the Supreme Court, but it declined to hear it earlier this year.
"We could be arguing over crescent wrenches if they wanted to make that the debate. It just boils down to the federal government stepping across a boundary that they shouldn’t.”
This libertarian streak, coupled with a deep-seated appreciation of the Second Amendment, is at the heart of a broader national movement to nullify federal laws.
“We could be arguing over crescent wrenches if they wanted to make that the debate,” said Kerns, the Montana state representative who introduced nullification legislation there. “It just boils down to the federal government stepping across a boundary that they shouldn’t.”
One of the major forces behind these bills isn’t even a gun rights group.
The Tenth Amendment Center, which created the model firearms legislation known as the Second Amendment Preservation Act, is actually focused on the Tenth Amendment, which says any powers not granted to the federal government by the Constitution belong to the states.
The group promotes federal firearm law nullification, but also advocates legalizing marijuana and nixing federal Common Core education standards.
"The kind of motto of our organization is, follow the Constitution every time, no exceptions, no excuses," Maharrey said. "So we focus on any constitutional issue and try to limit federal power to its constitutionally delegated role."
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Critics like Adam Winkler, a law professor at the University of California, Los Angeles, say that both types of nullification laws are unconstitutional.
“States are not entitled to nullify federal law,” he said. “Any law that interferes with a valid federal law is unconstitutional. The federal law is supreme over state law.”
“Nullification is no more valid today than it was during the 1950s during desegregation or during the pre-Civil War era,” agreed Brady Center attorney Plunkett.
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But constitutional conservatives aren’t giving up, hoping to harness a deep dissatisfaction with the federal government among a large swath of Americans.
“I think it’s part of a larger interest in pushing back against federal power,” said Maharrey. “I think the gun debate’s become more pronounced over the last couple of years due to some of the tragedies that we’ve seen, but on the other hand, interest in general of re-establishing state sovereignty and limiting federal power … has also grown.”
Wade Millward contributed to this report.
Jessica Boehm is a News21 Hearst Fellow. Robby Korth is a News21 Peter Kiewet Fellow.
This report is part of a project on gun rights and regulations in America produced by the Carnegie-Knight News21 program.
First published August 21 2014, 3:47 AM