Constitution Check: Do states have the power to block new federal gun controls?

National Constitution Center

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Lyle Denniston looks at efforts by states to ban the federal government from enforcing national gun laws, and why those efforts face a serious constitutional roadblock.

The statements at issue:

“Lawmakers in at least 15 states have introduced bills that would nullify any new efforts [in Washington] to further restrict access to guns or high-capacity magazines within their borders.  Some have provocative language calling for states to arrest and prosecute federal agents who dare to enforce new firearms regulations.”

 – Jack Healy, writer for The New York Times, in an article on February 7. The article noted that the lower house of the Wyoming legislature had passed the Firearm Protection Act on February 1, and that the measure now moves to the state Senate.

“Any federal law, rule, regulation or order created or effective on or after January 1, 2013, shall be unenforceable within the borders of Wyoming by an officer or agent of the federal government or of the state of Wyoming or any political subdivision thereof if the law, rule, regulation or order attempts to (1) ban or restrict ownership of a semi-automatic firearm or any magazine of a firearm that remains exclusively within the borders of Wyoming; or (2) require any firearm, magazine, or other firearm accessory that remains exclusively within the borders of Wyoming to be registered in any manner.”

 – Text of HB0104, the Firearm Protection Act, as passed by the Wyoming house of representatives on February 1, by a vote of 46 to 13.

We checked the Constitution, and…

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The constitutional barrier to a state veto of any federal law, or regulation that has the force of law, is very high, and might even be insurmountable. Indeed, at the Constitutional Convention in 1787, the Founders were so determined to create a strong national government that they wrote into the original document the Supremacy Clause, in Article VI:

“The 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, anything in the constitution or laws of any state to the contrary notwithstanding.”

Although the specific text only binds the judges of a state to respect national laws, Article VI has long been understood to apply to all branches of state government. And, though the Constitution was changed in 1791 with the addition of the 10th Amendment, protecting the rights of the states, that amendment has not given states the power to veto or ignore national laws.

Those basic constitutional understandings, however, have not deterred defenders of states’ rights from attempting from time to time to challenge national supremacy. Indeed, Thomas Jefferson and James Madison wrote the Kentucky and Virginia Resolutions that were passed by those states’ legislatures in the late 1790s to contest the validity of the national Alien and Sedition Acts. President Andrew Jackson in 1832 had to move aggressively to put down the “nullification crisis” in which South Carolina sought to veto the national tariff laws passed in 1828 and 1832.

And the Civil War, of course, was provoked in part by the insistence of the southern slave states that Congress could not legislate against that institution. After the Supreme Court ended racial segregation of public schools, the “massive resistance” movement spread across the South in the 1950s and 1960s.

In recent years, with the rise of the tea party movement and the revival of states’ rights sentiment, resistance to the national government is having a sturdy comeback. There were, for example, a number of laws passed by state legislatures to resist the new federal health care law’s requirement that individuals purchase health insurance, before the Supreme Court upheld that mandate.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Now that resistance movement is spreading to the issue of gun control, as President Obama seeks to apply significant pressure for new control laws from Congress.

As the wording of the Wyoming law clearly shows, the proposed new state laws are written precisely to challenge Congress’ authority to enact laws that would reach inside a state’s borders, to guns and gun accessories that are owned or made in the state and kept there. That is a direct challenge to the power of the national legislature to reach activity that is claimed not to be a part of “interstate commerce.”

If other states follow the lead of the Wyoming House of Representatives and pass new laws declaring those states to be off-limits to new federal gun controls, the courts may be busy with constitutional challenges to those maneuvers.

So far, there has been only one full-scale opinion by a federal court on the constitutional issue arising over such laws. It was a ruling in March 2010 by a federal magistrate judge, Jeremiah C. Lynch in Missoula, Montana, declaring that a Montana law similar to Wyoming’s could not survive the Constitution’s Supremacy Clause.

Directly confronting the claim that Congress has no power to regulate guns inside of a state, Judge Lynch wrote: “Congress could rationally have concluded that allowing local firearms commerce to escape federal regulation would severely undercut the comprehensive regulatory scheme set in place by federal firearms laws. The rationality of this conclusion is evidenced by the number of states that have already enacted or are contemplating enacting similar Firearms Freedom Act legislation.”

Judge Lynch’s ruling has since been upheld by a U.S. district court in a brief opinion endorsing his reasoning, and the case has slowly worked its way up to the Ninth U.S. Circuit Court of Appeals. That court is scheduled to hold a hearing on it in Portland, Oregon, on March 4.

Sponsors of the Montana law at issue in that case have said they expect to lose in the Circuit Court of Appeals. Gary Marbut, president of the Montana Shooting Sports Association, who worked to get the law passed in his state, said last month that “we need to get to the U.S. Supreme Court in order to overturn a century of bad Commerce Clause precedent.”

That test case might reach the Supreme Court about a year from now.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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Constitution Check: Do states have the power to block new federal gun controls?

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