Missouri Just Came Within One Vote of Re-Fighting the Civil War

A bill which would have "nullified" federal gun regulations was narrowly defeated in the Missouri legislature on Wednesday. The GOP-led measure — which would have penalized any federal agent enforcing, you know, the law — was well on its way towards overriding Democratic Governor Jay Nixon's veto when it fell just one vote short in the State Senate, where presumably some elected officials did not feel like declaring war on the federal government for the purposes of political theater. Though a less ambitious, more policy-oriented bill could have hacked away at gun regulations, the Missouri GOP gave that up when they decided to go after the federal government, which has a history of faring well against the Missouri state capitol. Unless the Missouri GOP feels like refortifying Jefferson City, they should spare us any more close calls.

Though the boldest, this bill is hardly the first GOP-led attempt to nullify federal gun regulations. During the Obama administration's now-forgotten push for a gun bill in the wake of the Sandy Hook shooting, GOP legislatures across the country from Wisconsin to Alaska proposed bills that would have preemptively blocked any new restrictions on ammunition, assault weapons, or background checks. A bill that passed the Montana legislature in 2009 almost went as far as Missouri's, "freeing" all firearms manufactured, owned, and kept within the state from all federal regulations (the law was recently struck down by a federal court).

All of these attempts are grounded in good old-fashioned "Nullification Theory," which has been updated a bit since its heyday in the 1850s. Whereas Civil War-era nullification was grounded on the belief that states, having freely entered the union, were free to leave it, contemporary nullification theory is more similar to the Nullification Crisis of 1832, when South Carolina nullified President Andrew Jackson's new recent tariffs, deeming them unconstitutional. Today's GOP has very similar opinions about Obamacare, gay rights, and federal gun regulations. Utah State Representative Brian Greene, writing in a January op-ed, claimed that the constitution's Supremacy Clause, which establishes the supremacy of federal law over state law whenever the two may conflict, depends on the federal law being constitutional in the first place. If federally-mandated background checks are unconstitutional, then the states have no legal obligation to respect them.

The problem with this argument is that we already have an institution whose sole job is to decide whether or not laws are constitutional. Until GOP nullifiers get themselves appointed to the Supreme Court, their opinions on the constitutionality of federal laws is just that — their opinions. Unless the Supreme Court finds background checks for felons and the mentally ill violate the constitution (for those of you keeping score, Scalia has stated the opposite), then those federal statutes are empowered by the Supremacy Clause. If the Missouri State Police one day decides to obstruct a federal prosecution, then they are the ones breaking the law, not the other way around.

If only the Missouri GOP stopped short of declaring war on the FBI, they would realize that there is still a lot that they can do. On a number of issues, from gay marriage to medical marijuana, state legislatures have enacted policies that go directly in the fact of federal statutes. If Colorado and Maine can decriminalize pot, why can't Missouri and other states merely decide to "decriminalize" ammunition restrictions and the like?

Thanks to a 1997 Supreme Court decision, they can. In Printz v. U.S., the Court decided that, though federal law is supreme to state law, Congress cannot force state officials (such as police officers) to work on its behalf. Known to legal experts as the "anti-commandeering rule," state and local officials are perfectly within their rights to ignore federal statutes. If Congress wants them enforced, they have to do it themselves. In the end, though the specter of federal prosecution can hang over individuals in rogue states, for most Americans the effect is of de facto state and local supremacy. So long as local governments don't pass anything unconstitutional, they mostly get away with ignoring the federal government. The Missouri GOP's insistence on crossing that red line reveals its bill to be less of a principled stand on policy and more of a cheap political stunt.