Misunderstanding Nullification

BY Herschel Smith
1 month ago


Texas is renewing a strategy that seeks to circumvent federal gun-control laws, one that lawmakers hope makes its way to the Supreme Court to test longstanding doctrine on gun regulation.

Texas Gov. Greg Abbott gathered with Republican lawmakers at the Alamo Thursday to ceremonially sign several gun-related bills passed during the recent legislative session, including one making the open carry of handguns without a license legal, and another allowing state residents to buy Texas-made gun silencers without a federal license.

While the open carry bill drew national attention, the less-noticed silencer bill revives a strategy to avoid federal regulation of guns, a strategy that federal courts have blocked in other states. Gun-rights advocates think they have a better shot now because of the addition of three conservative justices appointed by former Republican President Donald Trump.

The GOP-controlled Legislature last month passed a bill along mostly partisan lines that would allow residents to sidestep federal regulation, including background checks and a special tax, on the theory that the U.S. Constitution doesn’t expressly allow federal regulation of commerce within a state’s borders, only commerce between states.

“Passing the bill is a first step,” said Rachel Malone, the Texas director of Gun Owners of America, an advocacy group. She said it could be years before silencers, also known as suppressors, can be bought and sold in Texas, because the measure needs to wend its way through federal courts. The bill also requires the Texas attorney general to bear the legal burden of defending challenges to the law in federal court.

[ … ]

Other states have passed similar laws in hopes of making silencers more available, all of which have been struck down by the federal courts. In 2013, Kansas passed a similar measure that was found unconstitutional by federal courts, and the Supreme Court declined to weigh in on the matter. Two Kansans were arrested and convicted in federal court when they tried to take advantage of the state measure before it was subjected to scrutiny in federal court.

Robert Leider, a law professor at George Mason University, said the law is unlikely to prevent federal enforcement of the silencer rules, pointing to the Supreme Court’s expansive reading of the Commerce Clause under longstanding precedents.

Federal authority also rests on Congress’s constitutional taxing power. The original federal gun law, the National Firearms Act of 1934, is essentially an excise tax with registration rules, establishing a $200 tax on the manufacture or transfer of specific types of firearms and equipment, including silencers.

And when Kansas passed that law, I said beware because Kansas wasn’t serious and had no intention of protecting its citizens from FedGov overreach.

““Passing the bill is a first step,” said Rachel Malone, the Texas director of Gun Owners of America, an advocacy group. She said it could be years before silencers, also known as suppressors, can be bought and sold in Texas, because the measure needs to wend its way through federal courts.”

This is silly and trivial.  It misunderstands the point of nullification, and they may as well hang it up now.  The federal courts will never find in their favor, and the SCOTUS won’t hear the case.  Texans who make use of this law are set up to be hanged out to dry.

Nullification only has teeth if the state is prepare to ignore the rulings of federal courts and send agents of the state to arrest and imprison agents of the FedGov who attempt to enforce the laws which are the subject of nullification.

Ms. Malone has given up the case before it ever becomes a case.  This is nothing more than symbolism.  Call me when a state of really ready to do nullification the right way.



  1. On June 21, 2021 at 3:08 am, Show Me said:

    Yep. Well said. It’s all theater and political posturing, as is.

    Thinking positively, it *might* be a good sign of things leaning in the direction of nullification and, eventually, secession. Time will tell.

  2. On June 21, 2021 at 7:47 am, Whynot said:

    If my dealings with a state judge in a relatively conservative county is any indication, jury nullification is a moot point. To quote the judge – “ there is no such thing as jury nullification in Texas.”

    His answer was in response to my question regarding same as a potential juror in a marijuana possession case. I pushed as fas as I could without going to jail myself (contempt). Needless to say, the prosecutor moved that I be struck from the jury (which was granted). I will never ask that question again, preferring instead to sit the jury and push it in behind door deliberations.

  3. On June 21, 2021 at 10:22 am, Frank Clarke said:

    I crack enamel off my teeth every time I read something like “…a machinegun made in the State of Texas and that has not traveled in interstate commerce cannot be regulated by the Federal Government under the interstate commerce clause.”

    First, the I/C clause was intended to grant Congress the power to prevent STATES interfering in the free transfer of value, not persons actually transferring value.

    Second, it is a fundamental principle of jurisprudence that later law trumps earlier law. if the I/C clause ever gave Congress any power over firearms, the Second Amendment revoked that grant.

    It is also provable by direct deduction that the I/C clause is currently misinterpreted. Article I section 8 of the U S Constitution begins “Congress shall have the power to…” and proceeds to list 17 specific things Congress shall have power to do. One of these things is to regulate commerce. If “to regulate commerce” is accepted in its modern interpretation, viz. to micromanage all activity which involves or might conceivably someday involve commerce that has, does, or might in the future involve more than one state, then that is the only power that needs to be granted in I(8), all the others being subsumed within the power to micromanage the economy of the entire United States. Could that have been what the writers intended? “Congress shall have the power to do these 16 things plus anything else that occurs to them”? To ask the question is to know the answer. That’s patently ridiculous!

    The verb “to regulate” meant, at the time the Constitution was written, “to adjust for proper operation (like a clock or a machine)”. Congress is here given authority to make commerce happen, not to prevent it happening. Its power is the power to keep states from tossing their shoes into the gearbox. We are supposed to be living in The Free Trade Zone of the United States, and the only reason we’re not is that somebody misinterpreted the I/C clause.

    Since Congress is misusing this power, we should withdraw it and undo all the evil done in its name.

    Problem solved.

  4. On June 21, 2021 at 1:00 pm, scott s. said:

    If you read the committee hearing reports on the NFA, it is clear that at that time they didn’t see the commerce clause as extending to this, that’s why they were careful to pass it under the taxing power. Likewise the FFA was limited in scope to what was clearly interstate commerce. As the supremes declared in Hylton v United States back in 1796 the taxing power is plenary.

  5. On June 21, 2021 at 7:10 pm, JB said:

    Who really believes we are freemen living in a constitutional republic ?

  6. On June 21, 2021 at 9:51 pm, X said:

    “Nullification only has teeth if the state is prepare to ignore the rulings of federal courts and send agents of the state to arrest and imprison agents of the FedGov who attempt to enforce the laws which are the subject of nullification.”

    Not necessarily. Nullification can work if the Federal government abdicates the right to enforce it’s own laws and chooses not to prosecute.

    That’s exactly what has happened with the 20+ states that have now ignored Federal weed laws, and the hundreds of states and municipalities that have declared themselves “sanctuaries” for illegal aliens. The Feds just shrugged and said “OK, whatever.”

    But God forbid if you have a 17 3/4″ shotgun, they will fly into Ruby Ridge in helicopters, surround your place in combat gear, murder your 14-year-old son when his dog barks, shoot your unarmed wife’s head off while she’s clutching an infant, and mock you the way the Romans mocked Christ on the cross.

  7. On June 21, 2021 at 9:56 pm, X said:

    “As the supremes declared in Hylton v United States back in 1796 the taxing power is plenary.”

    And as they declared in Barron v. Baltimore, “the power to tax is the power to destroy.”

    The NFA is 100% completely unconstitutional, root and branch. Neither the Taxation Clause nor the Commerce Clause empowers Congress to infringe on a constitutionally-enumerated right. Does Congress have the right to tax churches and newspapers out of business? Does it have the right to arrest you and throw you in prison for ten years for possessing an unregistered newspaper in interstate commerce without a Federal permit?

RSS feed for comments on this post. TrackBack URL

Leave a comment

You are currently reading "Misunderstanding Nullification", entry #27610 on The Captain's Journal.

This article is filed under the category(s) Gun Control and was published June 20th, 2021 by Herschel Smith.

If you're interested in what else the The Captain's Journal has to say, you might try thumbing through the archives and visiting the main index, or; perhaps you would like to learn more about TCJ.

26th MEU (10)
Abu Muqawama (12)
ACOG (2)
ACOGs (1)
Afghan National Army (36)
Afghan National Police (17)
Afghanistan (681)
Afghanistan SOFA (4)
Agriculture in COIN (3)
AGW (1)
Air Force (35)
Air Power (9)
al Qaeda (83)
Ali al-Sistani (1)
America (21)
Ammunition (151)
Animals (104)
Ansar al Sunna (15)
Anthropology (3)
Antonin Scalia (1)
AR-15s (283)
Arghandab River Valley (1)
Arlington Cemetery (2)
Army (79)
Assassinations (2)
Assault Weapon Ban (27)
Australian Army (6)
Azerbaijan (4)
Backpacking (2)
Badr Organization (8)
Baitullah Mehsud (21)
Basra (17)
BATFE (117)
Battle of Bari Alai (2)
Battle of Wanat (18)
Battle Space Weight (3)
Bin Laden (7)
Blogroll (3)
Blogs (23)
Body Armor (20)
Books (3)
Border War (11)
Brady Campaign (1)
Britain (38)
British Army (35)
Camping (4)
Canada (3)
Castle Doctrine (1)
Caucasus (6)
Center For a New American Security (8)
Charity (3)
China (14)
Christmas (12)
CIA (28)
Civilian National Security Force (3)
Col. Gian Gentile (9)
Combat Outposts (3)
Combat Video (2)
Concerned Citizens (6)
Constabulary Actions (3)
Coolness Factor (2)
COP Keating (4)
Corruption in COIN (4)
Council on Foreign Relations (1)
Counterinsurgency (216)
DADT (2)
David Rohde (1)
Defense Contractors (2)
Department of Defense (167)
Department of Homeland Security (26)
Disaster Preparedness (4)
Distributed Operations (5)
Dogs (12)
Donald Trump (26)
Drone Campaign (3)
EFV (3)
Egypt (12)
El Salvador (1)
Embassy Security (1)
Enemy Spotters (1)
Expeditionary Warfare (17)
F-22 (2)
F-35 (1)
Fallujah (17)
Far East (3)
Fathers and Sons (2)
Favorite (1)
Fazlullah (3)
FBI (32)
Featured (185)
Federal Firearms Laws (18)
Financing the Taliban (2)
Firearms (1,375)
Football (1)
Force Projection (35)
Force Protection (4)
Force Transformation (1)
Foreign Policy (27)
Fukushima Reactor Accident (6)
Ganjgal (1)
Garmsir (1)
general (15)
General Amos (1)
General James Mattis (1)
General McChrystal (44)
General McKiernan (6)
General Rodriguez (3)
General Suleimani (9)
Georgia (19)
Google (1)
Gulbuddin Hekmatyar (1)
Gun Control (1,355)
Guns (1,876)
Guns In National Parks (3)
Haditha Roundup (10)
Haiti (2)
Haqqani Network (9)
Hate Mail (8)
Hekmatyar (1)
Heroism (4)
Hezbollah (12)
High Capacity Magazines (16)
High Value Targets (9)
Homecoming (1)
Homeland Security (1)
Horses (1)
Humor (35)
ICOS (1)
IEDs (7)
Immigration (93)
India (10)
Infantry (4)
Information Warfare (2)
Infrastructure (2)
Intelligence (23)
Intelligence Bulletin (6)
Iran (170)
Iraq (379)
Iraq SOFA (23)
Islamic Facism (64)
Islamists (95)
Israel (18)
Jaish al Mahdi (21)
Jalalabad (1)
Japan (2)
Jihadists (80)
John Nagl (5)
Joint Intelligence Centers (1)
JRTN (1)
Kabul (1)
Kajaki Dam (1)
Kamdesh (9)
Kandahar (12)
Karachi (7)
Kashmir (2)
Khost Province (1)
Khyber (11)
Knife Blogging (4)
Korea (4)
Korengal Valley (3)
Kunar Province (20)
Kurdistan (3)
Language in COIN (5)
Language in Statecraft (1)
Language Interpreters (2)
Lashkar-e-Taiba (2)
Law Enforcement (4)
Lawfare (7)
Leadership (6)
Lebanon (6)
Leon Panetta (2)
Let Them Fight (2)
Libya (14)
Lines of Effort (3)
Littoral Combat (8)
Logistics (50)
Long Guns (1)
Lt. Col. Allen West (2)
Marine Corps (266)
Marines in Bakwa (1)
Marines in Helmand (67)
Marjah (4)
Media (59)
Medical (60)
Memorial Day (6)
Mexican Cartels (35)
Mexico (51)
Michael Yon (6)
Micromanaging the Military (7)
Middle East (1)
Military Blogging (26)
Military Contractors (4)
Military Equipment (24)
Militia (5)
Mitt Romney (3)
Monetary Policy (1)
Moqtada al Sadr (2)
Mosul (4)
Mountains (25)
MRAPs (1)
Mullah Baradar (1)
Mullah Fazlullah (1)
Mullah Omar (3)
Musa Qala (4)
Music (23)
Muslim Brotherhood (6)
Nation Building (2)
National Internet IDs (1)
National Rifle Association (72)
NATO (15)
Navy (22)
Navy Corpsman (1)
NCOs (3)
News (1)
NGOs (2)
Nicholas Schmidle (2)
Now Zad (19)
NSA (3)
NSA James L. Jones (6)
Nuclear (57)
Nuristan (8)
Obama Administration (221)
Offshore Balancing (1)
Operation Alljah (7)
Operation Khanjar (14)
Ossetia (7)
Pakistan (165)
Paktya Province (1)
Palestine (5)
Patriotism (7)
Patrolling (1)
Pech River Valley (11)
Personal (65)
Petraeus (14)
Pictures (1)
Piracy (13)
Pistol (2)
Pizzagate (21)
Police (531)
Police in COIN (3)
Policy (15)
Politics (885)
Poppy (2)
PPEs (1)
Prisons in Counterinsurgency (12)
Project Gunrunner (20)
PRTs (1)
Qatar (1)
Quadrennial Defense Review (2)
Quds Force (13)
Quetta Shura (1)
RAND (3)
Recommended Reading (14)
Refueling Tanker (1)
Religion (234)
Religion and Insurgency (19)
Reuters (1)
Rick Perry (4)
Rifles (1)
Roads (4)
Rolling Stone (1)
Ron Paul (1)
ROTC (1)
Rules of Engagement (75)
Rumsfeld (1)
Russia (32)
Sabbatical (1)
Sangin (1)
Saqlawiyah (1)
Satellite Patrols (2)
Saudi Arabia (4)
Scenes from Iraq (1)
Second Amendment (420)
Second Amendment Quick Hits (2)
Secretary Gates (9)
Sharia Law (3)
Shura Ittehad-ul-Mujahiden (1)
SIIC (2)
Sirajuddin Haqqani (1)
Small Wars (72)
Snipers (9)
Sniveling Lackeys (2)
Soft Power (4)
Somalia (8)
Sons of Afghanistan (1)
Sons of Iraq (2)
Special Forces (28)
Squad Rushes (1)
State Department (21)
Statistics (1)
Sunni Insurgency (10)
Support to Infantry Ratio (1)
Supreme Court (29)
Survival (50)
SWAT Raids (55)
Syria (38)
Tactical Drills (2)
Tactical Gear (6)
Taliban (167)
Taliban Massing of Forces (4)
Tarmiyah (1)
TBI (1)
Technology (17)
Tehrik-i-Taliban (78)
Terrain in Combat (1)
Terrorism (95)
Thanksgiving (10)
The Anbar Narrative (23)
The Art of War (5)
The Fallen (1)
The Long War (20)
The Surge (3)
The Wounded (13)
Thomas Barnett (1)
Transnational Insurgencies (5)
Tribes (5)
TSA (22)
TSA Ineptitude (13)
TTPs (4)
U.S. Border Patrol (5)
U.S. Border Security (14)
U.S. Sovereignty (17)
UAVs (2)
UBL (4)
Ukraine (3)
Uncategorized (58)
Universal Background Check (3)
Unrestricted Warfare (4)
USS Iwo Jima (2)
USS San Antonio (1)
Uzbekistan (1)
V-22 Osprey (4)
Veterans (3)
Vietnam (1)
War & Warfare (311)
War & Warfare (40)
War Movies (4)
War Reporting (21)
Wardak Province (1)
Warriors (6)
Waziristan (1)
Weapons and Tactics (71)
West Point (1)
Winter Operations (1)
Women in Combat (21)
WTF? (1)
Yemen (1)

July 2021
June 2021
May 2021
April 2021
March 2021
February 2021
January 2021
December 2020
November 2020
October 2020
September 2020
August 2020
July 2020
June 2020
May 2020
April 2020
March 2020
February 2020
January 2020
December 2019
November 2019
October 2019
September 2019
August 2019
July 2019
June 2019
May 2019
April 2019
March 2019
February 2019
January 2019
December 2018
November 2018
October 2018
September 2018
August 2018
July 2018
June 2018
May 2018
April 2018
March 2018
February 2018
January 2018
December 2017
November 2017
October 2017
September 2017
August 2017
July 2017
June 2017
May 2017
April 2017
March 2017
February 2017
January 2017
December 2016
November 2016
October 2016
September 2016
August 2016
July 2016
June 2016
May 2016
April 2016
March 2016
February 2016
January 2016
December 2015
November 2015
October 2015
September 2015
August 2015
July 2015
June 2015
May 2015
April 2015
March 2015
February 2015
January 2015
December 2014
November 2014
October 2014
September 2014
August 2014
July 2014
June 2014
May 2014
April 2014
March 2014
February 2014
January 2014
December 2013
November 2013
October 2013
September 2013
August 2013
July 2013
June 2013
May 2013
April 2013
March 2013
February 2013
January 2013
December 2012
November 2012
October 2012
September 2012
August 2012
July 2012
June 2012
May 2012
April 2012
March 2012
February 2012
January 2012
December 2011
November 2011
October 2011
September 2011
August 2011
July 2011
June 2011
May 2011
April 2011
March 2011
February 2011
January 2011
December 2010
November 2010
October 2010
September 2010
August 2010
July 2010
June 2010
May 2010
April 2010
March 2010
February 2010
January 2010
December 2009
November 2009
October 2009
September 2009
August 2009
July 2009
June 2009
May 2009
April 2009
March 2009
February 2009
January 2009
December 2008
November 2008
October 2008
September 2008
August 2008
July 2008
June 2008
May 2008
April 2008
March 2008
February 2008
January 2008
December 2007
November 2007
October 2007
September 2007
August 2007
July 2007
June 2007
May 2007
April 2007
March 2007
February 2007
January 2007
December 2006
November 2006
October 2006
September 2006
August 2006
July 2006
June 2006
May 2006

about · archives · contact · register

Copyright © 2006-2021 Captain's Journal. All rights reserved.