Missouri Legislature Nullifies All Federal Gun Control

[Frank Ettin]

And The Tenth Amendment says; The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Yes it does. So what? Article VI, Clause 2 still says:

Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

And as provided for by the Founding Fathers in Article III of the Constitution, disputes about which applies when and how will be a matter for the federal courts.

It's a legal theory recognized by Thomas Jefferson and James Madison. The Virginia and Kentucky Resolutions of 1798 spell it out clearly. James Madison said the states were “duty bound to resist” when the federal government violated the Constitution....

In over two hundred years that has not been adopted by the courts. It seems it's pretty unlikely to be now.

...You are reading the Supremacy Clause like this: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.” The key part to the Supremacy Clause is "in pursuance thereof."...

No, I'm pointing out that any dispute about whether a federal law has been adopted in pursuance to the Constitution will be decided, as the Founding Fathers intended, by the federal courts -- not by you or by the Legislature of the State of Missouri.

...Which part of the Constitution indicates that? Judicial review is not in the Constitution. It was a precedent set by Marbury v. Madison (1803)....

Again, as the Founding Fathers provided in the Constitutions (Article III):

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish....

Section 2. The Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution,...

And thus disagreements concerning the application of the the Constitution to the resolution of particular disputes is the province of the federal courts -- something clearly the Founders intended.

The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute.

And, as Chief Justice John Marshall wrote in the decision in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), emphasis added:

....It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.

So, if a law [e.g., a statute or treaty] be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.....

Note also that many of the Founding Fathers (the delegates to the Constitutional Convention who signed the Constitution) were lawyers. They were familiar with English Common Law (the basis of out legal system) and that for a long time it had been customary for the courts, under the Common Law, to consider the validity of such matters as the Acts of Parliament and the actions of the Crown under the rather amorphous collection of statutes, court judgments, treaties, etc., that became understood in the Common Law to be the English Constitution. And thus there was Common Law precedent, as no doubt understood by the Founding Fathers, for the invalidation of a law as unconstitutional being within the scope of the exercise of judicial power. (And English cases continued to be cites by courts of the United States for many years after Independence.)

And while John Marshall may not have been a Founding Father, he wasn't at the Constitutional Convention, he should at least be entitled to be considered a founding uncle. He was a delegate to the Virginia Convention that would ratify or reject the Constitution and, together with James Madison and Edmund Randolf, led the fight for ratification.

So:

• In its ruling in Marbury the Supreme Court was merely exercising its explicit authority given it in the Constitution to exercise judicial power to decide cases arising under the Constitution. In doing so and reaching its decision in Marbury it was applying established Common Law principles -- just as courts were, and are, expected to do.
  
  
• And as Marshall pointed out, to decide the matter in Marbury the Court had to either sustain an act of Congress or conclude that the act of Congress was contrary to the Constitution, and thus sustain the Constitution. Either the act of Congress was valid, yielding one result, or it was invalid as conflicting with the Constitution, yielding a different result.
  
  
• In other words, the Court could not, in Marbury, decide the case without choosing either a law enacted by Congress or the Constitution.
  
  
• And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

...In the same way, why can’t states nullifying federal laws set a precedent?...

Only if the United States Supreme Court sustains the proposition. Can you cite any U. S. Supreme Court ruling which could serve as a basis for a future ruling sustaining the proposition that a State may nullify federal law?

In fact, the U. S. Supreme Court has consistently rejected State attempts to nullify federal law. See:

1. United States v. Peters, 9 U.S. (5 Cranch) 115 (1809)
   
   
2. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816)
   
   
3. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
   
   
4. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
   
   
5. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824)
   
   
6. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
   
   
7. Prigg v. Pennsylvania, 41 U.S. 539 (1842)
   
   
8. Ableman v. Booth, 62 U.S. 506 (1859)
   
   
9. Cooper v. Aaron, 358 U.S. 1 (1958)
   
   
10. Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).

 

[taliv]

I know that many people share that belief. I just haven't seen anyone state a solid basis for that belief, at least with regard to an action in the courts, under the law. But maybe it can have a political effect.

there might be what? 150 federal agents in MO? and 6000 State and Local? How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect?

 

[MJU1983]

Maybe I am confused. What it looks like on the ground to me: If an Federal officer comes to Missouri, arrests someone on a federal gun charge, then the officer just committed a felony in Missouri by state law. That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??
LL

That's what they originally wanted. I was at the Capitol when HB170 was being considered. The Senators and Representatives I talked with thought that it "would be a good first step." I smiled.

http://www.house.mo.gov/billtracking/bills131/biltxt/intro/HB0170I.htm

I'm not 100% sure on the status of HB170 but I am checking with someone now on its status.

The bill that did pass is HB436 which included language for class A misdemeanors, not class D felonies as outlined in HB170.

 

[Frank Ettin]

...The Principles of ’98 were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it....

Yet, as I've noted, such efforts were uniformly rejected by the U. S. Supreme Court. Cite cases in which such state action was sustained by the federal courts and was actually effective in practice.

...there might be what? 150 federal agents in MO? and 6000 State and Local? How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect? ...

Yes that can have a practical effect. But not a legal effect. It might be interesting to see what resources the federal government might decide to commit to the enforcement of federal guns laws in Missouri.

 

[readyeddy]

Say the Missouri Attorney General enforces the statute and gets charged with obstruction of justice or some other crime by the feds. Can the Missouri AG assert that the federal firearm law in question is unconstitutional under the 2A as a defense? Or is that not relevant to the charge relating to interfering with federal law enforcement?

 

[316SS]

Yes that can have a practical effect. But not a legal effect. It might be interesting to see what resources the federal government might decide to commit to the enforcement of federal guns laws in Missouri.

I think it is interesting when this legislation is referred to as "political" or more derisively as "political theater." As if the judiciary could be divorced from politics. If that were the case then we gun owners wouldn't be concerned that this administration might have the opportunity to nominate Supreme Court justices. After all, whoever nominates them, they will faithfully interpret the law, independent of their personal political beliefs. Right? I contend that practical, legal, and political issues are indistinguishable and only time will tell how those issues play out.

 

[MJU1983]

And as provided for by the Founding Fathers in Article III of the Constitution, disputes about which applies when and how will be a matter for the federal courts.

That's a pretty broad interpretation. It may be taught in various law schools but I doubt Jefferson or Madison would agree with that assertion. If you have proof for your claim, feel free to share.

You're claiming Article III settles this, Jefferson was likely aware of the existence of Article III. But the Court's powers are judicial, not political. Article III deals with cases in law and equity, not matters of political contest. It was not until the mid-twentieth century, which is rather a long span of time after the ratification of the Constitution, that the Court began seriously claiming such a power to settle political disputes between the states and the federal government. The first time it had tried to do so wasn't until 1890. Even Edward Livingston, the principal drafter of Andrew Jackson's Nullification Proclamation, conceded half the argument: "In cases in which a law of the United States may infringe the constitutional right of a State, but which in its operation cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a State that may deem itself aggrieved and the General Government."

James Madison, who was also aware of Article III, explained in his Report of 1800 that there of course needed to be an additional remedy for the people when even the judicial branch had failed them. All three branches of the federal government were liable to encroach upon the rights of the people. Said Madison:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

In over two hundred years that has not been adopted by the courts. It seems it's pretty unlikely to be now.

I don't think nullifiers care too terribly much about the courts. The Supreme Court has upheld a lot of terrible laws, they aren't infallible. Nullification is the rightful remedy for when all branches fail you. From a States perspective, they haven't had a real voice in Washington DC for the past 100 years after the adoption of the 17th amendment.

No, I'm pointing out that any dispute about whether a federal law has been adopted in pursuance to the Constitution will be decided, as the Founding Fathers intended, by the federal courts -- not by you or by the Legislature of the State of Missouri.

And I ask that you cite it. I've listed countless items to back-up what I'm saying. I disagree. As I posted previously, in the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.

Again, as the Founding Fathers provided in the Constitutions (Article III):

If they intended it to be used for what you are stating, they would have discussed it in great detail. All I ask is for some quotes from said Founding Fathers to back-up your claims.

I didn't want to quote your entire text in regards to Chief Justice John Marshall and Marbury v. Madison. BUT, I did want to comment...

Jefferson did nothing to erase what has since proved to be the fatal precedent established by Marbury, that the Supreme Court had the authority to strike down a state or federal law whose constitutionality it disputed. Jefferson could have asked Congress for an amendment to reverse Marshall's opinion in Marbury and formally declare that the Supreme Court did not have the power of judicial review. Jefferson believed that since Marshall's opinion was issued obiter dictum and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it.

And without judicial review under the Constitution of acts of Congress or other actions of public officials, what would be the remedy for such a law or action that one believed was repugnant under the Constitution? Do we have a civil war over every disagreement about the constitutionality of a law? Does each person get to decide for himself whether a law is constitutional and therefore whether to abide by it?

Nullification. No, secession is fine to any non-tyrant, and acceptable under the 10th amendment, Civil War need not apply. Thomas Jefferson believed that the 10th amendment “was the cornerstone of the entire Constitution” and he believed in a states right to secede from the Union. Yes.

Only if the United States Supreme Court sustains the proposition. Can you cite any U. S. Supreme Court ruling which could serve as a basis for a future ruling sustaining the proposition that a State may nullify federal law?

No. However, we should.

 

[Lunie]

Did anyone consult with the citizens of Missouri or was the Democratic process hijacked like it was in New York under the latest hysteria.

The Citizens of Missouri were working in support of, and not in opposition to, this bill. The public hearings in the House and Senate were packed with more witnesses supporting than there would have been time to hear, and no one rose to speak against.

Citizens were calling, emailing, or telling their legislators in person to support pro-gun measures like this. Missouri may be somewhat bipolar when it comes to political parties, but it is supportive of the right to keep and bear arms.

Last year, there was no significant grassroots push for good legislation, and none fell out of the tree. This year there was a push, and it has borne fruit.

 

[Frank Ettin]

And as provided for by the Founding Fathers in Article III of the Constitution, disputes about which applies when and how will be a matter for the federal courts.

That's a pretty broad interpretation. It may be taught in various law schools but I doubt Jefferson or Madison would agree with that assertion. If you have proof for your claim, feel free to share.

You're claiming Article III settles this,...

That plus 200 years of U. S. Supreme Court precedent rejecting nullification. You, on the other hand, have not cited a single case.

No, I'm pointing out that any dispute about whether a federal law has been adopted in pursuance to the Constitution will be decided, as the Founding Fathers intended, by the federal courts -- not by you or by the Legislature of the State of Missouri.

And I ask that you cite it....

And I have. See the citations to U. S. Supreme Court cases rejecting nullification.

...I've listed countless items to back-up what I'm saying...

None of which has been upheld by the U. S. Supreme Court.

Again, as the Founding Fathers provided in the Constitutions (Article III):

If they intended it to be used for what you are stating, they would have discussed it in great detail. All I ask is for some quotes from said Founding Fathers to back-up your claims...

Phooey. What I have is over 200 years of Constitutional jurisprudence. In the real world that will be the basis upon which courts will be deciding future cases.

...Jefferson believed that since Marshall's opinion was issued obiter dictum and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it...

No, Jefferson was wrong about Marshall's opinion in Marbury being null and void. What has proven Jefferson wrong is the Marshall's opinion has continued to be applied in the deciding of subsequent cases. It in fact has helped shape the entire history of constitutional jurisprudence and has thus affected the ways in which courts have ruled, affecting the lives and property or real people in the real world, for over 200 years. That doesn't sound very "null and void" to me.

Only if the United States Supreme Court sustains the proposition. Can you cite any U. S. Supreme Court ruling which could serve as a basis for a future ruling sustaining the proposition that a State may nullify federal law?

No. However, we should.

In other words, the U. S. Supreme Court has never ruled in a way that would support your contentions. And thus your view rests entirely on wishful thinking.

 

[Frank Ettin]

...Thomas Jefferson believed that the 10th amendment “was the cornerstone of the entire Constitution” and he believed in a states right to secede from the Union...

I should have addressed this earlier.

In any case, while Jefferson might have believed that, he was wrong. The U. S. Supreme Court indeed ruled that a State could not unilaterally secede from the Union (Texas v. White, et al, 74 U.S. 700, 19 L.Ed. 227, 7 Wall. 700 (1868)).

...I don't think nullifiers care too terribly much about the courts. The Supreme Court has upheld a lot of terrible laws, they aren't infallible...

They probably don't. But that doesn't matter. Ultimately the rulings of the U. S. Supreme Court will be the final statements of the law.

Yes, the Court has upheld terrible laws, but --

1. It's not necessarily the province of a court to decide if a law is good or not. It's the province of a court to apply the law to decide the dispute before it. But the fact is that a great many improper, unwise, useless or dangerous things the government can do would be found by a court to be entirely constitutional. Being constitutional is not a guaranteed of wisdom.
   
   
2. The Supreme Court can, and has on rare occasion, reversed itself or carved out a better result by distinguishing a current case from a past, perhaps unsuitable, precedent.
   
   
3. All branches of government, both state and federal, can make bad decisions. Congress and state legislatures have passed lousy laws, and federal and state executives have done really dumb things. That's why we have elections and a system of checks and balances.

The bottom line is that you have laid out a lot of interesting historical information. But none of it really relates to how things are going to be worked out and decided here and now. Perhaps such things would be material in an alternate universe; but in our real world, not so much.

 

[303tom]

All I can say is, all of you that are arguing against what we are trying to do here in Missouri.......We are sorry your states gun laws suck & you are just jealous, now I am done with this discussion !...................

 

[Outlaw Man]

there might be what? 150 federal agents in MO? and 6000 State and Local? How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect?

This sums up what I think would be the biggest, immediate effect. Sure, there will be people that will turn others in to the Feds, but that won't be commonplace. Eliminating enforcement is a due facto nullification.

I'm not sure I'd be willing to take that chance, though.

 

[Cosmoline]

That officer could then be tried and convicted of a felony by the state of Mo. YES or NO??

Assuming you could find a DA willing to do it, the officer could be indicted, at which time the federal district court would step in and quash the indictment. There is zero chance of a conviction or even a trial. It's a protest law, not a real one.

How could telling 95+% of the sworn officers to ignore federal gun laws NOT have an effect?

Well in practice the state troopers and local LEO's don't go around enforcing arcane federal gun laws. Federal law may be used as a leveraging tool. There are, for example, federal enhancement statutes for gun crimes that state prosecutors do use as a threat (ie cooperate with us or it's over to the feds). I'll be interested to hear from them on this, but my guess is a law barring such things will do far more harm to state prosecutions than to federal.

 

[mgkdrgn]

ya, we tried something along those lines here in SC 150 so years ago ... didn't work out all that well

 

[NickEllis]

Well in practice the state troopers and local LEO's don't go around enforcing arcane federal gun laws.

But this isn't just about arcane federal gun laws. I have never, not once, bumped into a federal LEO in daily life. I have however been concerned on multiple occasions about small-town sheriffs and highway patrol that I encounter that don't seem to know even local law. If this law can eliminate (through coercion and threat of law) the knee-jerk negative reaction by LEOs to firearms I'm very happy indeed.

 

[Bruno2]

All I can say is, all of you that are arguing against what we are trying to do here in Missouri.......We are sorry your states gun laws suck & you are just jealous, now I am done with this discussion !...................

I like this one!

 

[Cosmoline]

I have however been concerned on multiple occasions about small-town sheriffs and highway patrol that I encounter that don't seem to know even local law.

There are still plenty of state and local gun laws for those folks to enforce. In fact I would have been a lot more impressed if MO had opted to clean their own house first and struck all their own gun laws off the books. Something they'd be well within their rights to do. This is symbolic measure, not a real one.

 

[Lunie]

Frank Ettin,

I have considered responding several times. I don't doubt your expertise, but I do disagree with your attitude. One thing is certain; if we only continue to do do the same things (that is, to not attempt to push boundaries), we will continue to get the same result. It's easy to get lost in "How things are done around here" and lose sight of "How things could be better".

"We've been making sand by banging two rocks together for generations." Well, does that mean it is the "right" or "best" way to do it, or are we just doing it as a matter of precedent? I don't believe that our system is operating according to what our Constitution mandates, and my choice is to either accept that or work to fix it. We need a more effective means of keeping Federal power within Constitutional limits, because what we have been doing is not enough. We need a more effective check on Federal encroachment. Is it nullification? Maybe, or maybe not. A repository of absolute foreknowledge, I am not.

I think this bill does good things, many of which have been discussed here. The only aspect I think is dubious is trying to prevent enforcement by Federal authorities (in the case of this bill, by making it a misdemeanor for them to do so). If anything, we set the stage for an actual court challenge, something that wouldn't happen if we weren't pushing the envelope.

History is filled with things that "couldn't happen". Sometimes, if only by shear numerical probability, they do. If it becomes law, we need to figure out how best to make it work.

 

[Frank Ettin]

I have considered responding several times. I don't doubt your expertise, but I do disagree with your attitude. One thing is certain; if we only continue to do do the same things (that is, to not attempt to push boundaries),..

But my point has been that this isn't pushing the boundaries in any meaningful way. State nullification, as a legal matter, is a well proven losing proposition. It has been rejected by the U. S. Supreme Court consistently for 200 years.

...It's easy to get lost in "How things are done around here" and lose sight of "How things could be better"...

The progress we've actually made in recent years has been made by people who understand and can operate effectively in the legal and political realities of our time.

...I don't believe that our system is operating according to what our Constitution mandates, and my choice is to either accept that or work to fix it. We need a more effective means of keeping Federal power within Constitutional limits, because what we have been doing is not enough....

Believing as you do and wanting to improve things is fine. But that doesn't mean that state nullification is going to get you there. It sure hasn't worked that way in the past.

And if you want to try to fix things, you first need a solid grounding in reality and a thorough understanding of how things work. Just "doing something" isn't necessarily well calculated to achieve the results you might want.

Understand also that there are people who disagree with your vision. We live in a pluralistic, political world; and other people have their rights and interests which they will assert.

...I think this bill does good things, many of which have been discussed here. The only aspect I think is dubious is trying to prevent enforcement by Federal authorities...

Yes, the Missouri legislation includes some very attractive state law reforms. It's the nullification of federal law business that will be going nowhere.

History is filled with things that "couldn't happen"....

Such as? Anyway, history is filled with a lot of things. One thing our history is filled with is failure in the courts of attempts by states to nullify federal law.

 

[Bruno2]

Frank ,you are kind of a glass half empty guy.

 

[Frank Ettin]

Frank ,you are kind of a glass half empty guy.

Not really. It's just in thirty years of practicing law I've found that non-critical optimism is a bad practice, especially if one wants to actually accomplish things for his clients.

In other news, I am guardedly optimistic about our chances to see some more favorable litigation results. We have some very good arguments building on Heller and McDonald.

Of course I can appreciate that many are impatient. But the time line goes with the process, and impatience isn't necessarily a good reason to pursue doubtful strategies.

And I must have some degree of optimism or I wouldn't be spending the time and effort I do bringing new shooters into the gun community. I work with a group of instructors who volunteer our time to teach monthly Basic Handgun classes, introducing annually around 100 (+/-) new people to our world of guns.

 

[Lunie]

But my point has been that this isn't pushing the boundaries in any meaningful way. State nullification, as a legal matter, is a well proven losing proposition. It has been rejected by the U. S. Supreme Court consistently for 200 years.

The progress we've actually made in recent years has been made by people who understand and can operate effectively in the legal and political realities of our time.

Believing as you do and wanting to improve things is fine. But that doesn't mean that state nullification is going to get you there. It sure hasn't worked that way in the past.

And if you want to try to fix things, you first need a solid grounding in reality and a thorough understanding of how things work. Just "doing something" isn't necessarily well calculated to achieve the results you might want.

Understand also that there are people who disagree with your vision. We live in a pluralistic, political world; and other people have their rights and interests which they will assert.

Yes, the Missouri legislation includes some very attractive state law reforms. It's the nullification of federal law business that will be going nowhere.

Such as? Anyway, history is filled with a lot of things. One thing our history is filled with is failure in the courts of attempts by states to nullify federal law.

I don't think I got my intent across. Blind optimism isn't a good thing, but neither is closed minded pessimism. You can think critically without letting those criticisms overwhelm the discussion. In this case, the ball is already in the air... There probably isn't much point in saying "It won't work, don't do it." Instead, we are left with "What will we do when it lands?".

It took us over 200 years for the courts to apply the 2nd Amendment to the States. (Ok, so obviously the 14th Amendment didn't exist all of that time, but I think you can understand what I mean.)

Sometimes radical changes seem less revolutionary after they have happened. I don't think the outcomes of Heller or McDonald were ever guaranteed.

"Nullification-lite" or non-enforcement, is not a dead horse. If anything, it seems to be a growing trend. And while full-on nullification may well have dim prospects, it does at least allow the states to challenge Federal authority, and ultimately, to do so in the courts (when a suit is filed.) Wouldn't you say?

 

[monotonous_iterancy]

What parts of this law are practical and not symbolic? If the nullification part is struck down, and it probably will be, then will it effect these statutes as well?

 

[RPRNY]

Regardless of how the Courts ' eventually rule on it - most likely against based on the "Supremacy Clause ;-) - those who keep citing this clause seem to miss that the supremacy is dependent on Federal laws being legal under the Constitution. Missouri's new law will be perfectly valid in nullifying Federal laws that are at odds with the Constitution. We know from Miller (1937) that the NFA (1934) has been deemed compatible with the Constitution. I do not recall if the Court has ruled specifically on the GCA (1968)? But Missouri's nullification of any Federal law that it deemed unconstitutional and that had not yet been found to the contrary by the Supreme Court would be juridically sound.

In any event, well done Missouri.


Sent from my Kindle Fire using Tapatalk 2

 

[Frank Ettin]

I don't think I got my intent across. Blind optimism isn't a good thing, but neither is closed minded pessimism....

Look, this is not a matter of closed minded pessimism. This is a matter of professional assessment and knowledge. Don't forget that understanding these sorts of things, and successfully in the legal system accomplishing the purposes of my clients, is how I earned my living for thirty plus years. I have reason to "know when to hold 'em and know when to fold 'em" based on a lot of education, study and experience. And my understanding has been tested in the real world dealing with the very real wants, needs and problems of very real people.

...Instead, we are left with "What will we do when it lands?"...

So understanding that it will land and how it is likely to land, and preparing for it, makes good sense. It won't help to be caught by surprise.

...I don't think the outcomes of Heller or McDonald were ever guaranteed...

But a lot of study and thought by well educated and highly skilled people went into planning, setting up and arguing Heller and McDonald to maximize the likelihood of good results. Alan Gura and the legal team are consummate professionals well grounded in reality who would not have let themselves be carried aware on waves of wishful thinking.

And we can all be very thankful for that. Heller was "for all the marbles." I shudder to think what a "collective right" decision would have meant for the RKBA.

..."Nullification-lite" or non-enforcement, is not a dead horse. If anything, it seems to be a growing trend...

Yes, indeed it is, and it can be a very useful tool. Mack and Printz v. United States, 521 U.S. 898 (1997) was that latest of cases clearly establishing that the federal government can not simply put local officials to work to further federal policy. So if the federal government wants to pursue a particular policy, it will need to be able to commit the resources to do it by itself or the policy must be one that State would be willing to voluntarily commit local resources to implementing.

It does has the effect of "raising the price of poker" for the federal government. It gives States a certain leverage.

...while full-on nullification may well have dim prospects, it does at least allow the states to challenge Federal authority, and ultimately, to do so in the courts (when a suit is filed.) Wouldn't you say?..

But the answer there is still whether anything useful is likely to be accomplished. Are you suggesting it's good to fight the federal government in court just for the sake of the fight?

The political symbolism of this sort of nullification law might have the benefit of reminding be federal government that there is a growing schism in this country between federal and state interests and a basic philosophical division that needs some healing. But a court challenge might very well simply generate more law rejecting nullification, and that won't help anything. Any it could produce some other undesirable rulings -- such as a narrowing of the Tenth Amendment or a further expansion of the Commerce Clause (depending on the nature of the underlying dispute).