Misunderstanding Nullification

BY Herschel Smith
1 month ago

WSJ.

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.

 


Comments

  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?

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