SHAPIRO: Another attempt at nullification

But Washington gets a message, loud and clear

Illustration by Alexander Hunter for The Washington Times
By Jeffrey Scott Shapiro
Monday, May 13, 2013

“Nullification” laws have been introduced in 37 states that technically make it a felony for law enforcement agents to enforce federal restrictions banning firearms, and a recent Rasmussen poll shows that 38 percent support such state laws.Nullification laws are a legal device used by states to “nullify” federal laws deemed unconstitutional by that state’s legislature and governor.

They stem from a proclamation that Andrew Jackson issued in 1832, but in reality have little if any actual authority in overriding federal law.

In fact, under the Supremacy Clause of Article VI, federal law is the “supreme law of the land,” and in a conflict between state and federal law, federal law wins out.However, Washington should take notice that 37 states in the union passing such laws is a clear sign that the majority of the country disapproves of federal gun laws that may be unconstitutional and that states are becoming bolder about rebelling.As a former Washington, D.C., prosecutor who has just about always sided with the United States in circumstances in which the states have tried to pre-empt the federal government, I can only hope that President Obama and the Democratic Senate finally realize their anti-Second Amendment views are unconstitutional and alarming state governments and their citizens.Exercising their rightful power of judicial review to interpret the Constitution, the U.S. Supreme Court decided in 2008 in District of Columbia v. Heller that there was a fundamental right to keep and bear arms.

In 2010, the Second Amendment Foundation brought another challenge in McDonald v. Chicago, and the court decided that the right to keep and bear arms not only applied in Washington, D.C., but should also be incorporated to all 50 states.States may not have a legal basis for enforcing the new nullification laws, but technically they are right that any attempt by the federal government to disregard the U.S. Supreme Court’s ruling in Heller or MacDonald is unconstitutional and should not be enforced. For once, I’m inclined to side with the states on this matter — at least in spirit, since I know many of the federal laws being proposed by the Democratic Party are unconstitutional.The entire point of the Heller and MacDonald cases were to secure the Second Amendment as a guaranteed right to keep and bear firearms that are in “common use.”

But since the tragic Sandy Hook shootings in Connecticut, the Democrats have done everything they can to ban firearms that are in common use.

Gun-control advocates have waged a diabolical misinformation campaign, mislabeling AR-15’s as “assault weapons,” a term designed to mislead the public into thinking they’re actually machine guns or automatic “assault rifles,” when, in fact, they only fire one shot at a time, no different than a handgun.Democratic senators such as California’s Dianne Feinstein should know by now that just because a gun looks like a machine gun doesn’t necessarily mean that it fires like a machine gun.

The state of New York originally banned guns that held more than seven bullets, which included just about every semi-automatic handgun in existence. Only recently after Gov. Andrew Cuomo realized there were no semi-automatic guns that carried only seven bullets did he redesign the law to permit guns that carry 10 bullets — as long as the firearms owner does not load it with more than seven bullets.

Connecticut also joined in with similar measures, which, under Heller and McDonald, are clearly unconstitutional since the majority of guns carry 10 or more bullets, and are therefore in “common use.”The fact is that the Democrats’ continued attempts to pass federal laws that defy the Supreme Court have compelled the states to pass nullification laws.

The real solution to such unconstitutional laws, of course, is for citizens in those states to file more constitutional challenges and give the Supreme Court the opportunity to clarify the Heller and MacDonald rulings so that gun-control advocates are left with little or no leeway to pass such laws in the first place.

Constitutional-rights organizations such as the Second Amendment Foundation have been spearheading such legislation around the country and will undeniably continue to do so.

The Obama administration is not waging a war against guns, it is waging a war on the Constitution and the Supreme Court of the United States, and ultimately, they must lose.Any law, whether state or federal, must comply with the Supreme Court; otherwise, we compromise our entire system of checks and balances and the Separation of Powers doctrine that dictates the branches do not overstep one another’s function. Nullification laws are not necessary.

The White House and Democratic Senate simply needs to comply with the court and the Constitution of the United States of America.Jeffrey Scott Shapiro is a former prosecutor in Washington, D.C.