Gun Bill in Missouri Would Test Limits in Nullifying U.S. Law

Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.

The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.

The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.

The measure, which would seem certain to face a court challenge, was vetoed last month by Gov. Jay Nixon, a Democrat. But when the legislature gathers again on Sept. 11, it will seek to override his veto. Nearly every Republican and a dozen Democrats appear likely to vote for the override.

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

Historically used by civil rights opponents, nullification has bloomed in recent years around a host of other issues, broadly including medical marijuana by liberals and the new health care law by conservatives.

>> Charge them with Treason from the MO Constitution — and, if they're found guilty, kill and bury them the same day. When the FedGov says you can't do that — tell them reverse our judgment and bring them back from the dead. i.e. If the punishment is permanent, there's no undoing it.
>
>There won't be a conviction because there won't be a trial. Once the charge is filed, the case is transferred to federal court, which will dismiss the charge as unconstitutional.

Art I, Section 30. Treason—attainder—corruption of blood and forfeitures—estate of suicides—death by casualty.— That treason against the state can consist only in levying war against it, or in adhering to its enemies, giving them aid and comfort; that no person can be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on his confession in open court; that no person can be attainted of treason or felony by the general assembly; that no conviction can work corruption of blood or forfeiture of estate; that the estates of such persons as may destroy their own lives shall descend or vest as in cases of natural death; and when any person shall be killed by casualty, there shall be no forfeiture by reason thereof.

They can say that the actions of the Federal Government disregarding its sovereignty makes it an enemy, and that its operations to continually undermine the State's sovereignty are rendering aid and comfort to the state's enemies. Then they could deny the validity of federal jurisdiction claiming a conflict of interest.

Or if you want to invoke the federal judicial system, take this portion of CAPERTON v. A. T. MASSEY COAL CO.:

The second instance emerged in the criminal contempt context, where a judge had no pecuniary interest in the case but had determined in an earlier proceeding whether criminal charges should be brought and then proceeded to try and convict the petitioners. In re Murchison, 349 U. S. 133 . Finding that “no man can be a judge in his own case,” and “no man is permitted to try cases where he has an interest in the outcome,” id., at 136, the Court noted that the circumstances of the case and the prior relationship required recusal.

Then they could deny the validity of federal jurisdiction claiming a conflict of interest.

A federal agent or official charged with a state crime (or sued in a state court) for something they did in the course of their federal employment has an absolute right to be tried in federal court. Once they file the removal notice, the state court loses all jurisdiction. If the state court doesn't recognize that, federal marshals will come to see the state judge and set him straight. If the state resists them, the President will federalize the state's National Guard. This happened in the desegregation days when state courts refused to follow state court orders.

Or if you want to invoke the federal judicial system, take this portion of CAPERTON v. A. T. MASSEY COAL CO.

Caperton was talking about an individual judge being biased, not about the entire federal government.

>>Or if you want to invoke the federal judicial system, take this portion of CAPERTON v. A. T. MASSEY COAL CO.
>
>Caperton was talking about an individual judge being biased, not about the entire federal government.

If it matters for the instance of the person, how much moreso the institution?

>>Then they could deny the validity of federal jurisdiction claiming a conflict of interest.
>
>A federal agent or official charged with a state crime (or sued in a state court) for something they did in the course of their federal employment has an absolute right to be tried in federal court. Once they file the removal notice, the state court loses all jurisdiction. If the state court doesn't recognize that, federal marshals will come to see the state judge and set him straight. If the state resists them, the President will federalize the state's National Guard. This happened in the desegregation days when state courts refused to follow state court orders.

Then there is no use in pretending that [federal] government overreach can be solved on the legal level — the only option is war or subjugation.

Then there is no use in pretending that [federal] government overreach can be solved on the legal level — the only option is war or subjugation.

It cannot be resolved by states choosing which federal laws they will obey. (Incidentally, how would you react if California chose to "nullify" the federal ban on on partial-birth abortions-- a ban which was justified by Congress on the stated basis that it was a regulation of interstate commerce?).

It can be resolved by electing Congressmen and Senators more sensitive to federalism, or by judicial challenges to unconstitutional legislation (which were successful on the gun-control front, and came within one vote of being successful on Obamacare). War is not, I think, likely to be a successful option-- I, for one, don't want to see Sherman's March to the Sea re-enacted, this time with Sherman carrying tactical nuclear weapons.

>>Then there is no use in pretending that [federal] government overreach can be solved on the legal level — the only option is war or subjugation.
>
>It cannot be resolved by states choosing which federal laws they will obey.

Ah, so you're one of those folks that thinks the States derive their authority from the Feds, instead of the Federal-government from the States then.

(Incidentally, how would you react if California chose to "nullify" the federal ban on on partial-birth abortions-- a ban which was justified by Congress on the stated basis that it was a regulation of interstate commerce?).

Interstate commerce is the most abused phrase in the Constitution, and it's been abused by the Judiciary to justify all sorts of overreach: Wickard, Schenck, Raich.

You have more faith in the judiciary than I. My state supreme-court just ruled that a business cannot refuse services to homosexuals… in direct violation of the State Constitution: NM Constitution, Art II, Sec 11.

Moreover, things like Wickard, Schenck, Raich, Kelo leave very little confidence that the judiciary would push toward what the Constitution actually says rather than what is (a) convenient, (b) popular, and/or (c) their own ideology.

So you think California can nullify the federal ban on partial-birth abortions?

There are very few federal crimes, constitutionally speaking: treason, counterfeiting, international/interstate commerce^* and arguably tax-violations^**.
Seeing that the Partial Birth Abortion [PBA] ban is none of these, then the question must be asked: By what authority does the federal government impose this law?^***

Aside from the question of legitimacy is the question of impact: is the PBA-ban effective? Given the number of loopholes, the question may reasonably be answered in the negative. (This, too, is laying aside the very real issue of selective-enforcement of laws by the federal government.) It may reasonably be argued that the PBA-ban is nothing more than feel-good legislation, or if you are cynical enough something the useless Republican Party can point to and say see! We really do push for things on our platform! Honest! while knowing full-well that the legislation is worse than useless.

So, while I loathe, hate, and detest abortion — and think the practice should be ended. I cannot in good conscience recommend that the proper course is a federal law, as that sort of law is not permitted by a strict reading of the Constitution. (Indeed the best course would be to alter people's hearts so that such a law would be unnecessary.) So, aside from an amendment, I cannot think how such a law could be actually legitimate. — this is a common problem with many today, though: not every issue is best settled within the confines of government and especially within the law.

^* International and interstate commerce are in the same clause (as is trade with Indian Tribes) — this means that the same regulatory powers of the Federal Government apply to foreign countries as the states. This, in turn, leads to questioning the legitimacy of the current interpretation of interstate commerce: for if the federal government were to assert the economic control inside foreign countries as it does inside the states that would rightly be considered an act of war; moreover, the enforcement of that control would be the waging of war. So, it is certainly reasonable to consider the current assertions/enforcements of the "interstate commerce clause" to be definitionally Treason.
^** Taxes occupy a very weird state in the law: the constitution prohibits Ex Post Facto law, which [according to the USSC] is a criminal law which retroactively makes something illegal or increases the punishment(s) of a crime. The tax laws have been retroactively changed, and yet they are pursued in criminal courts. Logically this should not be.
^*** This question should be asked of every law, bill, rule, regulation, and ruling from the Federal government. Most, sadly, are of the "I'm from the government, the government is the authority, therefore it is legitimate" school of thought.

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