By Robert A. Levy
Today, anti-gun-control legislators in the Missouri General Assembly are likely to pass a bill, over the governor’s veto, that renders almost all federal gun laws void in the state, and even makes it a crime for federal agents to enforce them.
Missouri is only the latest state to push back against federal gun laws. In Montana, the Firearms Freedom Act, passed in 2009, purports to exempt any gun manufactured and kept within the state from federal regulations; despite a federal appellate court decision last month invalidating the statute, it has served as a model in more than a half-dozen states.
But while states are not powerless in the face of federal law, there are limits to what they can do to prevent enforcement of constitutionally valid regulation.
The bills are based on the theory of nullification, which has its roots in the late 18th and early 19th centuries and holds that the federal government exists by the will of the states, and that states therefore can decide which federal laws are constitutionally valid within their borders.
When it comes to gun control, the claims of nullification advocates are threefold: No state is required to enforce federal gun regulations, states may prevent federal officials from enforcing laws declared by the state to be unconstitutional, and some federal gun restrictions are unconstitutional.
On the first point, the nullifiers are correct: In 1997, the Supreme Court held that “the federal government may not compel the States to enact or administer a federal regulatory program.” That case involved the Brady Act of 1993, which established a national system for background checks and commanded state law enforcement officials to conduct them.
Of course, background checks are still required in every state. That’s because federal officials are authorized to enforce their own laws, even if they cannot compel the states to do so. Thus, on the second point, the nullifiers are wrong: States cannot impede federal enforcement of a federal law merely because the state deems it unconstitutional.
Strangely, if nullification proponents had their way, Chicago’s gun ban, which the Supreme Court invalidated in 2010, might still be in effect. Moreover, if the court had not held in 1960 that nullification “is illegal defiance of constitutional authority,” many public schools might have remained segregated.
That brings us to the third point: whether the Constitution holds that federal gun laws are unconstitutional. If it does, then states would be justified in preventing enforcement. But despite pleas from the gun rights community, the Supreme Court has not gone that far.
Indeed, when the court overturned Washington, D.C.’s handgun ban in 2008, Justice Antonin Scalia, who wrote the majority opinion, was careful to note that the right to keep and bear arms is not absolute.
Subsequent cases will determine which regulations are allowable. But until the courts say otherwise, federal gun laws are presumptively consistent with Second Amendment rights.
What about Montana’s argument that federal restrictions on guns made and transported within the state exceed Congress’s power to regulate interstate commerce? Over protests from some activists, myself included, the Supreme Court has consistently expanded the federal government’s power to regulate commerce to cover any economic act that, in the aggregate, could have a substantial effect on interstate commerce — even if the act is not strictly commercial and is wholly within one state.
I support those who see risks in the expansion of federal power. However, to defend those rights, we can’t begin by flouting the very document that inspires that fight in the first place: the Constitution.
Robert A. Levy is chairman of the libertarian Cato Institute. He wrote this for The New York Times.