With President Joe Biden issuing a flurry of executive actions last week to strengthen federal gun laws, state representatives across the country are working in the opposite direction, taking a page from the playbook of immigration activists by advancing legislation that would make their enforcement illegal. On April 6, Arizona Governor Doug Ducey, a Republican, signed the first gun control nullification bill into law.
“Nullifying unconstitutional, federal laws is both legal and it’s also the right thing to do,” says Anthony Sabatini, a Republican lawmaker and member of the Florida House of Representatives. “It’s silly to sit around and wait for something you know is unconstitutional,” he tells Reason. “It’s time to stand up and fight back. And the methods that we need to use are the ones already being used by the left.”
In 1987, Oregon passed a law prohibiting state and local law enforcement from using public resources to arrest or detain people whose only crime was being in the country illegally. Since then, hundreds of other jurisdictions have passed similar laws, becoming so-called sanctuary cities.
Conservative activists are employing the same strategy. While Arizona is the only state where such a bill has become law, elected officials have introduced similar bills in more than a dozen statehouses. Montana‘s legislature has approved a bill that is now awaiting signature or veto from the governor; the Arkansas Senate and the Missouri, South Carolina, and West Virginia houses have each passed such bills; committees in Texas, Alabama, and New Hampshire have bills that are moving forward in their state legislatures; and similar bills have been introduced in Florida, North Carolina, Georgia, Minnesota, Ohio, Nebraska, Iowa, and Louisiana.
“We know this stuff has been working and the right can continue to complain about the things that the left is successful at, or they can look at it, learn from it, and replicate it,” Michael Boldin, the founder and executive director of the Tenth Amendment Center, tells Reason.
Sabatini is cosponsoring a bill in Florida called the “Second Amendment Preservation Act” that would prohibit any employee of the state of Florida from enforcing, or attempting to enforce “any federal act, law, executive order, administrative order, court order, rule, regulation, statute, or ordinance infringing on the right to keep and bear arms ensured by the Second Amendment.” The bill says that any state employee who assists in enforcing federal gun control laws would be terminated and never again be allowed to work for the state of Florida.
Defying federal law is something that a majority of states already do in one way or another, by becoming immigration sanctuaries or through the legalization and decriminalization of marijuana and other drugs that federal law still deems illegal.
“In terms of the method it’s identical,” says Sabatini. In sanctuary cities, “they stopped reporting to or dealing with I.C.E., and that’s basically what we’re doing.”
Boldin says that if states refuse to cooperate with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), then federal gun control becomes difficult to enforce.
“The ATF only has about 5,500 employees for the whole country. About a third of them are in administration, and that means they don’t have the manpower or resources to enforce federal gun control on their own,” he says. “Their maximum capacity, year in and year out, is between 8,000 to 10,000 closed cases. So if you get a combination of more than 10,000 people violating a federal act, and then on top of it, you have states and local communities refusing to participate in enforcement. You’ve then opened the door to actually nullify that federal act in practice and effect.”
Boldin says that the legal case for nullification doesn’t depend on the constitutionality of the law a state wants to nullify thanks to a legal doctrine known as anti-commandeering, which has been upheld in five Supreme Court cases from 1842 to 2018. It holds that the federal government can’t require states and localities to participate in the enforcement of federal laws.
“Talking about constitutionality actually does kind of get in the way of anti-commandeering,” Boldin notes. “A lot of people like that as a line in the sand. And I think that’s a good approach, but I don’t think they should be helping enforce federal gun control. Even if a federal court says this federal gun measure is ‘constitutional.'”
In March 2018, when the Trump administration was fighting with local officials over the enforcement of federal immigration laws, John Bolton, who would be appointed by then–President Donald Trump as national security adviser the following month, challenged the concept of nullification in an interview with Breitbart News Daily.
“The idea that law enforcement at lower levels shouldn’t be required to cooperate with the feds is just unthinkable,” he told SiriusXM host Alex Marlow. “That was also proposed by South Carolina Sen. John C. Calhoun before the Civil War, to say that South Carolina and other slave states would not enforce federal law regarding slavery.”
Boldin says that argument is ahistorical. Anti-commandeering originated in the 1842 Supreme Court case Prigg v. Pennsylvania, which upheld the state’s right not to participate in enforcing the Fugitive Slave Act of 1793. “The bottom line is nullification, as a tool banning participation in federal enforcement was actually a tool of the anti-slavery abolitionist North,” Boldin argues. “And when South Carolina seceded…they issued a document to explain their rationale. And they specifically cited Northern nullification of the federal Fugitive Slave Act.”
Sabatini says his bill is popular among Florida voters, but that doesn’t mean it’s likely to pass. In other states, law enforcement groups like the Missouri Sheriffs’ Association have worked to prevent gun control nullification bills from passing or to change their language, rendering them toothless.
Boldin says police departments want to continue enforcing federal law because it’s lucrative. “They get all kinds of funding from the joint task forces, through things like the Department of Homeland security grant, the Edward Byrne Justice Assistance Grant…They get civil asset forfeiture…I don’t think they’ll admit that they’re getting a bunch of loot to do this federal enforcement, but they certainly are.”
Boldin says that for the nullification movement to succeed against gun control laws and beyond, more Americans will have to recognize that the most effective way to oppose federal policies that violate their rights is at the local level.
“The whole idea of federalism is so important because it’s the only way you can have a country with a few hundred million people living together with a wide range of social, economic, political viewpoints together in peace. What’s right for people in California is probably not right for people in South Carolina and vice versa. And when we see things that come down from a one-size-fits-all centralized solution, I don’t think anyone really ever gets what they want.”
Because 36 states have nullified federal marijuana prohibition, Boldin argues, there’s mounting pressure for the federal government to follow suit. “I think we can replicate that on other issues and learn that localism is really the way forward for liberty.”