Idaho Has Declared It Won’t Obey New Federal Gun Laws

In conservative states, “nullification” laws are becoming popular — but they’re likely pointless.

This February 4, 2013 photo illustration in Manassas, Virginia, shows a Remington 20-gauge semi-automatic shotgun, a Colt AR-15 semi-automatic rifle, a Colt .45 semi-auto handgun, a Walther PK380 semi-auto handgun and various ammunition clips with a copy of the US Constitution on top of the American flag. US President Barack Obama Monday heaped pressure on Congress for action 'soon' on curbing gun violence. Obama made a pragmatic case for legislation on the contentious issue, arguing that just because political leaders could not save every life, they should at least try to save some victims of rampant gun crime. 
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Emma Roller
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Emma Roller
March 25, 2014, 1 a.m.

Last Fri­day, Idaho passed a law de­clar­ing that the state does not have to abide by fed­er­al gun laws go­ing for­ward. The law, which crim­in­al­izes the en­force­ment of fed­er­al gun laws, passed un­an­im­ously in both the House and the Sen­ate and takes ef­fect im­me­di­ately.

Un­der the new law, state law-en­force­ment of­fi­cials could also be fined up to $1,000 and charged with a mis­de­mean­or for en­for­cing fed­er­al gun laws.

“This is an im­port­ant first step for Idaho,” Tenth Amend­ment Cen­ter spokes­man Mike Ma­harrey told Ben­ “Get­ting this law passed will en­sure that any new plans or ex­ec­ut­ive or­ders that might be com­ing our way will not be en­forced in Idaho. Then, once this meth­od is es­tab­lished and shown to be ef­fect­ive, le­gis­lat­ors can circle back and start do­ing the same for fed­er­al gun con­trol already on the books.”

Both Alaska and Kan­sas have passed sim­il­ar “nul­li­fic­a­tion” laws. Kan­sas ap­proved the Second Amend­ment Pro­tec­tion Act last April, and Alaska en­acted a sim­il­ar law in June. A ProP­ub­lica in­vest­ig­a­tion from last spring found that at least 37 oth­er states have in­tro­duced sim­il­ar bills. Un­der the Kan­sas law, res­id­ents could “man­u­fac­ture and sell semi-auto­mat­ic weapons in-state without a fed­er­al li­cense or any fed­er­al over­sight.” The law also made it a felony for fed­er­al au­thor­it­ies to en­force any law that con­flicts with state law.

Idaho’s Le­gis­lature — which en­joys a Re­pub­lic­an su­per­ma­jor­ity in both its cham­bers — has be­come home to many state laws that at­tempt to cir­cum­vent fed­er­al law. Earli­er this month, the state tried and failed to pass a bill that would have out­lawed fed­er­al en­vir­on­ment­al reg­u­la­tions. And in 2011, Idaho tried to de­clare the Af­ford­able Care Act null and void. Since then, Gov. Butch Ot­ter has come un­der at­tack from his fel­low Re­pub­lic­ans for soften­ing his po­s­i­tion on Obama­care.

Writ large, many con­ser­vat­ive states are ex­plor­ing cre­at­ive but ar­cane ways to cir­cum­vent fed­er­al law. One grow­ing con­ser­vat­ive cause at the state level, the Art­icle V move­ment, would at­tempt to call a con­ven­tion of states to make laws in lieu of fed­er­al over­sight.

The prob­lem for states that have passed such nul­li­fic­a­tion laws is that they are un­con­sti­tu­tion­al, prima facie. The Con­sti­tu­tion’s su­prem­acy clause es­tab­lishes that fed­er­al law trumps state law, and pre­ced­ent has es­tab­lished the Su­preme Court as the ul­ti­mate ar­bit­er of a law’s con­sti­tu­tion­al­ity. Un­der the su­prem­acy clause, for ex­ample, fed­er­al drug-en­force­ment agents could tech­nic­ally ar­rest marijuana users in Col­or­ado or Wash­ing­ton, even though it is leg­al un­der state law. For the same reas­on, Obama­care is the law of the land, wheth­er states like it or not.

After the Kan­sas law was passed, U.S. At­tor­ney Gen­er­al Eric Hold­er wrote a let­ter to Gov. Sam Brown­back say­ing the law was un­con­sti­tu­tion­al. “Fed­er­al of­ficers who are re­spons­ible for en­for­cing fed­er­al laws and reg­u­la­tions in or­der to main­tain pub­lic safety can­not be forced to choose between the risk of a crim­in­al pro­sec­u­tion by a state and the con­tin­ued per­form­ance of their fed­er­al du­ties,” Hold­er wrote. “The United States will take all ap­pro­pri­ate ac­tion, in­clud­ing lit­ig­a­tion if ne­ces­sary, to pre­vent the State of Kan­sas from in­ter­fer­ing with the activ­it­ies of fed­er­al of­fi­cials en­for­cing fed­er­al law.”

Still, these states ar­gue that they, not the Su­preme Court, should be the ul­ti­mate ar­bit­ers of a law’s con­sti­tu­tion­al­ity: “This is def­in­itely a case that could make it to the Su­preme Court,” Kan­sas Sec­ret­ary of State Kris Kobach said back in 2013. “There is noth­ing sym­bol­ic about this law.”

So iron­ic­ally, in or­der for these laws to re­main leg­al, states would have to get the Su­preme Court to agree to its own im­pot­ence in mat­ters of con­sti­tu­tion­al­ity when state laws are in­volved. It’s a bit of a catch-22. For now, though, the fed­er­al gov­ern­ment mostly seems to be ig­nor­ing these laws and car­ry­ing on with busi­ness as usu­al.

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