Last week I reported on the fact that Tennessee made the move to nullify all federal gun laws by introducing new legislation. Now West Virginia is following suit with their version of the “Firearm Protection Act.”
HB2832 was introduced by Cindy Frich (R), along with five co-sponsors. According to the bill, it prohibits all state public servants from enforcing “act, law, statute, rule or regulation of the United States Government relating to a personal firearm, firearm accessory, or ammunition,” as long as the item remains “exclusively within the borders of West Virginia.”
The bill would ban enforcement of any federal legislation which would seek to:
- Ban or restrict ownership of a semiautomatic firearm or any magazine of a firearm; or
- Require any firearm, magazine or other firearm accessory to be registered in any manner.
According to Judge Andrew Napolitano, legislation such as HB2832 would make federal gun laws “nearly impossible to enforce.”
Our own Publius Huldah agrees and has stated that all federal gun laws are unconstitutional because no authority was given to the federal government to make such laws.
Publius cited James Madison in Federalist 46, where he wrote:
Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.
According to the Tenth Amendment Center national communications director Mike Maharrey, the legal standing for West Virginia’s legislation stands on 170 years of Supreme Court jurisprudence (1842-2012) and its legal standing is based on anti-commandeering doctrine.
“There is absolutely no serious discussion opposing anti-commandeering,” said Maharrey. “On top of it, this is just what James Madison advised the people and states to do if they wanted to thwart federal acts.”
The Tenth Amendment Center breaks down Madison’s commentary in the following fashion:
“Should an unwarrantable measure…” What does Madison mean by “unwarrantable?” The word literally means “unjustifiable.” Madison was clearly talking about federal acts with no constitutional justification. In other words, unconstitutional.
But notice something interesting, Madison implies that state governments can even resist a “warrantable” or justifiable federal act.
So what does Madison suggest states do when the feds overstep their authority?
“…the means of opposition to it are powerful and at hand.” Madison anticipated the possibility of federal usurpation and clearly believed the states would serve as a check on federal power. He believed the states should and would resist unconstitutional acts.
So, what are the “means of opposition?”
1. Disquietude of the people – This would include protests and petitions generated at the grassroots level. Madison expected the people would throw a fit when the feds usurped power – even using the word “repugnance” to describe their displeasure. That’s a pretty strong word. And inevitably, disquietude leads to action – first at the local level, then bubbling up to the state level. That leads to the next step.
2. Refusal to co-operate with the officers of the Union – Noncompliance. We preach it every day at the Tenth Amendment Center. Madison apparently knew what we know today. The feds rely on cooperation from state and local governments, as well as individuals. When enough people refuse to comply, they simply can’t enforce their so-called laws.
Noncompliance works. And it should be happening at both the state and local level.
3, The frowns of the executive magistracy of the State – Here Madison envisions governors formally protesting federal actions. This not only raises public awareness; executive leadership will also lead to the next step – legislative action. Prior to passage of the Kentucky Resolutions of 1798, Gov. Garrard delivered a powerful message condemning the Alien and Sedition Acts and calling on legislative action.
4. Legislative devices, which would often be added on such occasions –What exactly does Madison mean by “legislative devices?” He doesn’t make that clear. But we know they include resolutions, because he and Thomas Jefferson penned the Kentucky and Virginia Resolutions in response to the draconian and unconstitutional Alien and Sedition Acts of 1798. Together, these Principles of ’98 formalize the doctrine of nullification.
But do legislative devices stop at non-binding resolutions? Clearly not, because Madison said these measures would create “difficulties” and “impediments.” 18th-century dictionaries list “obstruction” as a synonym for impediment. In other words, these legislative devices could serve to block the operation of unconstitutional power. This infers actions including formal, binding prohibitions of state or local cooperation, and outright interposition: “to intervene or place an agency between two positions.”
The Tenth Amendment Center says that the personal liberty laws, which the northern states passed to thwart the Fugitive Slave Act of 1850 is one of the best historical examples of “legislative devices.”
“The federal government simply does not have the manpower or resources to enforce the countless laws they have on the books,” said Maharrey. “All one needs for proof is the miserable failure that the Obama administration has experienced while trying harder than any president in history to stop states’ rights on marijuana. After a while, they had to throw in the towel.”
The bill requires a majority vote to leave the House Judiciary Committee and head to the floor of the House to be considered. There is also a State Senate companion bill.
If you are in West Virginia, it is vital that you contact your representatives on the committee and urge them to get this legislation to the House.
Tim Brown is the Editor of Freedom Outpost.