Nullification of Oppressive Federal Laws Is Catching On

By:  John F. McManus
07/14/2014
       
Nullification of Oppressive Federal Laws Is Catching On

Earlier in 2014, the Kansas state legislature enacted a law stating that some federal gun control regulations would not be obeyed in Kansas.

U.S. Attorney General Eric Holder immediately notified Governor Sam Brownback that this new state law was unconstitutional. He cited Article VI of the U.S. Constitution, specifically its “Supremacy Clause,” to support his stand.

As is customary among federal officials, Holder relied on only a portion of this clause, the part stating that laws of the United States “shall be the supreme law of the land” binding all the states. But a more complete look at this clause shows that federal laws are legitimate only if “made in pursuance thereof” of the Constitution. In other words, if a federal law is not in keeping with, or exceeds, the powers granted in the Constitution, it can rightly be declared illegitimate and not obeyed.

Though not employing the word, Kansas actually issued a decree of nullification regarding the pertinent gun control regulations issued by the federal government.

Is nullification of a federal law permissible? Thomas Jefferson thought so. In the 1798 Kentucky Resolutions he penned to help the Kentuckians gain statehood, he wrote:

That a nullification, by those sovereignties [states] of all unauthorized acts done under the color of that instrument [the Constitution] is a rightful remedy.

After he served as president, James Madison offered his view about a state’s power to nullify a federal law in 1834:

Nullification of a law can ... belong rightfully to a single state as one of the parties of the Constitution; the state not ceasing to avow its adherence to the Constitution.

Though Attorney General Holder expressed his objection to the Kansas law, he hasn’t taken any action. But the Brady Campaign to Prevent Gun Violence, a private organization, has filed a lawsuit seeking to overturn what Kansas has done. In keeping with the Holder view, this anti-gun ownership group is relying on only a portion of the Supremacy Clause while ignoring the requirement that a federal law must be “in pursuance thereof” of the Constitution.

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