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Rebuttal: Can states exempt themselves from federal gun laws?

Too many people believe the Supreme Court gets to decide what the 2nd Amendment says or means ,or whether the states can resist the feds when they violate our right to keep and bear arms. It’s time to set the record straight.

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, makes this mistake when it comes to whether or not states can nullify federal gun control laws.

First, let’s give credit where credit is due. Denniston is the only person to earn a plaque in the Supreme Court press room, and his educational background and experience leave little to be desired. His accomplishments and achievements are undeniable.

Unfortunately, his work within the D.C. beltway has apparently caused him to look at this issue from the wrong perspective, and our hope is that he will reconsider his approach.

In a recent column, Denniston addresses Kansas’ law nullifying federal gun control laws, in which it is illegal for federal agents to violate aspects of the state law.

He writes on nullification:

The idea, never accepted by the Supreme Court as valid, is based on the theory that the Constitution was actually a creature of the states, joining together in a compact to give some – but not all – power to a central government. The states, the theory goes, are the ultimate arbiters of how governing power should be distributed and exercised.

This is not a theory. It is exactly what happened following the Constitutional Convention. The federal government did not create the states. The people of the states created the federal government via the ratifying conventions. The Constitution contains limited authority for the central government which was delegated to it and can be recalled. The rest of the powers not delegated to the feds are reserved to the states.

There exists not one piece of relevant historical evidence from any ratifying convention that infers or declares outright if the people of the states approved the Constitution they were consenting to permanently surrendering their sovereignty to a branch of the proposed federal government.

It does not exist because if it had, not one state would have voted in favor of ratification.

Nullification is the tool through which the states check the federal government when it attempts to usurp unconstitutional authority. In the Virginia Resolutions of 1798, James Madison, the father of the Constitution, said the states were “duty bound to resist” when the federal government violated the Constitution.

While the Supreme Court refuses to accept this, I would suggest to Denniston that we be more interested in what those who wrote the Constitution had to say about it than people who didn’t.

In fact, Denniston acknowledges both the Virginia and Kentucky Resolutions, noting that Madison and Jefferson supported nullification.

However, Denniston gets into trouble when he says “And, of course, belief in the need for nullification of attempts to end slavery was a cause of the Civil War.”

Then why did South Carolina specifically condemn nullification of federal slavery laws by Northern states in their declaration of secession, as well as Jefferson Davis during his farewell speech to the U.S. Senate?

Ultimately, Denniston’s reporting on the Supreme Court reflects the premise from which he makes his argument. For him, the court gets to decide what everyone else is allowed to do. This is why he does not offer a single reason why Jefferson or Madison’s support for nullification is incorrect, nor does he attempt to address in any way how federal gun control can be reconciled with the Second Amendment, which says our right to keep and bear arms “shall not be infringed.”

There are no exceptions contained anywhere. It does not take a legal scholar or a person in black robes to interpret this properly. It is only confusing when one believes the court decides what the words mean.

If the Supreme Court is able to declare, despite the plain meaning of the amendment, that the feds can regulate our right to keep and bear firearms, then in reality the Bill of Rights has no actual meaning, for it is entirely dependent on what the current court decides it means.

This has led, and will continue to lead us down, a dangerous path. This means Congress can make laws establishing a state religion, prohibiting the free exercise thereof, as well as censor the press – if the court says it can, that is. And the states have no authority to resist the feds when they try to enforce such laws.

If words do not retain their meaning with each new reader, then they have no meaning other than what the reader decides who has the ability to enforce their will on others. 

With all respects to Denniston, our rights today are the same as they were in 1789. Supreme Court rulings are really just opinions. It’s great when they rule in our favor, but when their opinions approve the violation of our rights, they’re wrong, and we’re going to use the states to protect our rights in any capacity at our disposal. 

Like Madison said, the states are “duty bound” to resist unconstitutional federal laws, and we’re going to hold them to their obligations with or without the permission of nine modern-day ephors.