Representative Nora Espinoza of Roswell, introduced bold legislation this session that would make it a third degree felony to enforce federal gun control laws. HB 114 came on the heals of President Obama's 23 executive orders designed to heavily regulate firearms across the country. The bill died this week in committee with a partisan vote of 3-2 whereby the Democrats declared the bill unconstitutional.
But is nullification of federal law unconstitutional?
If you read Tuesday's letters to the editor in the Albuquerque Journal, you might be inclined to believe that state nullification is unconstitutional, an issue "settled" with the end of the Civil War. After all, if you'd read history you'd know that the Civil War was about nullif .... err, secession.
What's that? Nullification is not the same thing as secession?
Let's get this myth busted straight away. Secession is not the same thing as nullification. Secession is actually breaking away from the union to become an independently sovereign country, while nullification is the state's power to hold the federal government in check when the federal government gets out of control. The Civil War had nothing to do with nullification, it was about the right of secession.
Checks and Balances
One thing that has kept America relatively free has been checks and balances on governmental overreach. The President has the power to veto, the Congress has the power to override a veto, and the Supreme Court has the power to shut down both the President and the Congress by declaring laws unconstitutional. This is just one example of checks and balances in our government and it's one of hundreds.
The concept of nullification permeates our founding documents, is explicit in the Bill of Rights, and has even been exercised as recently as 1997 in the landmark case of Mack/Prince vs USA (which ironically centered around the enforcement of federal gun control laws).
Our Declaration of Independence points out that it is the right and duty of the people to overthrow governments who abuse their power, and in fact, that's what the American Revolution was fought on. The colonists in Boston effectively nullified The Tea Act in their revolt better known as the Boston Tea Party. The Declaration goes on to list those actions of King George that the colonists were going to effectively nullify.
When writing the Bill of Rights, which was an addendum to the Constitution, the founders noted in the preamble "... in order to prevent misconstruction or abuse of [the Constitution's] powers, that further declaratory and restrictive clauses should be added ..." They went on to write the Bill of Rights which included the 9th and 10th Amendments which read:
IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Perhaps that is not good enough. Perhaps it's not good enough that the principle of America's founding was on this concept of disobeying authority. So let's look at something more modern.
Mack/Prince vs USA
In Prince vs USA, Sheriffs Richard Mack and Jay Prince sued the federal government in 1997 over the enactment of the Brady Bill which would have forced local law enforcement to uphold strict restrictions on the 2nd Amendment. Mack and Prince sued on the grounds that the Sheriff is not obligated to uphold unconstitutional federal law. The Supreme Court sided with Mack and Prince upholding that the sheriff is the supreme law enforcer in the state and that the sheriff held the power to even kick federal agents out of their counties. Even the governor of the state is under the jurisdiction of the sheriff.
So not only is nullification constitutional, it's actually been upheld by our Supreme Court in recent history. So whether you are an advocate of originalist interpretation, or believe the Supreme Court sets the precedent, nullification is a fully legal and suitable alternative for our state legislators to take.
What does this mean for HB 114? When a bill is tabled for unconstitutionality, the only way to un-table it is for the state attorney general to declare the bill constitutional. Looks like liberty-loving New Mexicans need to be inundating state attorney general Gary King with phone calls, emails, and faxes demanding that he declare HB 114 constitutional.
Here's a thought: On February 8th, there will be a pro-gun rally at the Round House. This could be the perfect time to pay the attorney general a visit as well.