We’ve been keeping an eye on state-based nullification efforts lately because, well, they’re kind of scary. The legal question of whether states can nullify federal laws they don’t like was supposed to have been resolved about 150 years ago, but there’s a right-wing effort underway to start the debate anew.
Take Kansas, for example (thanks to my colleague Laura Conaway for the tip on this).
Kansas Governor Sam Brownback signed the 2nd Amendment Protection Act into law on Tuesday. The 2nd Amendment Protection act states that, “Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas.” […]
Michael Boldin of the Tenth Amendment Center said Kansas has made history.
“The Kansas 2nd Amendment Protection Act, in my opinion, is potentially the most important state level bill passed in modern American history,” Boldin said.
Really? In modern times, no state has ever passed a bill as important as this one?
Nullification fans can be forgiven for occasional bouts of hyperbole, but for everyone else, there is some cause for alarm – at least when it comes to the underlying effort, if not this specific bill.
The drive to empower states to nullify federal laws they don’t like is obviously problematic. Some conservatives on the fringe may not want to hear this, but the fact remains that state policymakers don’t have the luxury of picking and choosing which federal laws they’ll honor.
But in this case, the Kansas 2nd Amendment Protection Act not only falls short of being “the most important state level bill passed in modern American history,” it also falls short of making any sense at all.
Under the new state law, federal measures that violate the Second Amendment will be ignored in Kansas.
They’ll also be ignored in Vermont. And Florida. And every other state. You see, laws that are deemed unconstitutional are “null, void and unenforceable” everywhere in the U.S. That’s kind of how our legal system works – if Congress passes a law, and it’s found to be in violation of the Constitution, the law goes away.
The Kansas 2nd Amendment Protection Act, in effect, declares, “Unconstitutional laws don’t apply in Kansas.” That’s nice, but unconstitutional laws don’t apply anywhere else, either.
The tricky part, I suppose, is that the Kansas 2nd Amendment Protection Act doesn’t specify the circumstances through which the state will determine whether an act, law, treaty, order, rule or regulation of the government of the United States violates the Second Amendment to the Constitution of the United States.
In other words, let’s say Congress passes a measure to prevent gun violence. It’s a fanciful dream, I know, but let’s just say it happens for the sake of conversation. At that point, if state lawmakers in Kansas want to challenge the law in the courts, they’re welcome to do so. If the law is struck down, it’s finished. If it survives legal scrutiny, it stays on the books.
What I’m curious about, though, is whether state lawmakers in Kansas think it’s up to them to decide whether the federal law is constitutional or not. The Kansas 2nd Amendment Protection Act doesn’t say that, but it doesn’t say anything on the subject at all, which makes me a little nervous.
If Republicans in Kansas want to file lawsuits challenging the constitutionality of laws they consider suspect, no problem. If they want to substitute themselves for the federal judiciary, however, there’s a fairly significant problem.