Required Reading for State House LawmakersPosted: September 4, 2013
Devoted followers of conservative mayhem at the Tennessee state house will recall one of the finer moments of legislative insanity last winter: a bill aiming to nullify federal firearms legislation by making it illegal for federal agents to enforce those laws in Tennessee. In the wake of an AG opinion that the measure was probably unconstitutional and indications that Gov. Bill Haslam was disinclined to sign the thing, the bill narrowly failed to make it out of committee back in February.
GOP-dominated state houses elsewhere have pushed this gun law nullification thing further along, with Missouri’s in the spotlight this month. That state’s legislature overwhelmingly passed a nullification bill earlier this summer, which Gov. Jay Nixon promptly vetoed. Now the show-me legislature is planning a vote to override the veto when it reconvenes next week. A successful override will require fewer votes than there were in favor the first time around. (And it should be noted that while the bill was largely a GOP effort, it passed with the support of 11 Democrats in the Missouri House and 2 in the Senate.)
So with the Missouri override vote impending, The New York Times runs an op-ed today titled “The Limits of Nullification.” In a state legislature like Tennessee’s, where no failed bad idea isn’t worth bring back for another go, this is a piece that lawmakers need to read for its persuasive case against nullification:
Yes, state legislatures or governors can assert that a federal law offends the Constitution. But as James Madison wrote in his Report of 1800, such declarations are “expressions of opinion” for “exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect.” In assessing constitutionality, our system of governance recognizes one Supreme Court, not 50 individual states. Strangely, if nullification proponents had their way, Chicago’s gun ban, which the Supreme Court invalidated in 2010, might still be in effect.
The Times op-ed is compelling not just for its substance, but also on account of the impeccable Second Amendment-loving credentials of its author: Robert Levy, chairman of the conservative-libertarian Cato Institute and a guy who was plaintiff’s co-counsel in the landmark 2008 Supreme Court case D.C. v. Heller upholding individual gun rights. For any Tennessee lawmaker thinking of trying again on nullification (I’m looking at you, Mae Beavers), Levy’s closing words should change your mind: “I fully support those who see risks in the expansion of federal power, particularly when it comes to intrusions on basic rights like gun ownership. However, to defend those rights, we can’t begin by flouting the very document that inspires that fight in the first place: the Constitution.”
A version of this post appears on the Nashville Scene‘s Pith in the Wind blog.