NYT: State Legislators Who Oppose New Federal Gun Controls 'Reach Back to John C. Calhoun'

New York Times reporter Jack Healy espies "a tide of anger at Washington's gun-control efforts" that has impelled "lawmakers in at least 15 states" to introduce "bills that would nullify any new efforts to further restrict access to guns or high-capacity magazines within their borders." A few sentences later, Healy makes the obligatory allusion to slavery:

Quixotic as they may be, the nullification moves reach back to John C. Calhoun and the antebellum South, and tap a deep frustration with what conservative lawmakers call Washington’s intrusion on the rights of states and gun owners. The spirit, while more muted, echoes the state-level backlash to President Obama's health care law in 2010.

Healy's link between federalism and racism is a bit subtler than the one suggested by his colleague Kate Zernike, who a few years ago came up with this marvelously concise smear: "In the Tea Party's talk of states' rights, critics say they hear an echo of slavery, Jim Crow and George Wallace." Still, you get the idea: People who oppose new federal gun control laws are intellectual descendants of the guy who called slavery "a positive good." 

They also do not understand the Constitution, Healy suggests, since "legal experts and even lawyers for solidly Republican legislatures have warned that the Constitution’s supremacy clause would allow federal gun laws to override any state measures." But the Supremacy Clause applies only to valid acts of Congress—those "made in pursuance" of the Constitution. Would a federal ban on "assault weapons" or a 10-round limit on magazine capacity be constitutional? When it comes to the Second Amendment, there surely is room for debate, especially since the Supreme Court has recognized an individual right to weapons "in common use for lawful purposes" and has not said what level of scrutiny is appropriate for laws that impinge upon that right.

There is also the more fundamental question of whether the Constitution grants Congress the authority to ban certain kinds of guns or magazines. For those who accept the Supreme Court's current, absurdly broad reading of the Commerce Clause, the answer is clearly yes. But in an earlier time—say, back when everyone thought it was obvious that Congress did not have the authority to ban alcoholic beverages without a constitutional amenment—the notion that the federal government could simply prohibit the production and sale of politically disfavored products was a bit more controversial. Healy himself mentions the Commerce Clause issue:

Three years ago, [Montana] passed the Firearms Freedom Act, declaring that any guns manufactured and owned entirely inside the state were off-limits to the reach of federal laws. Gary S. Marbut, president of the Montana Shooting Sports Association, spent years pushing for the law. Once it passed, he asked the Bureau of Alcohol, Tobacco, Firearms and Explosives whether, without a federal license, he could now go into business making a bolt-action rifle for young shooters—the Montana Buckaroo.

No way, the agency told him.

Mr. Marbut sued, saying their denials flew in the face of Montana’s law. His case is to be heard in March before the United States Court of Appeals for the Ninth Circuit.

Whatever your view of the Second Amendment and Commerce Clause questions, one thing should be clear: If Congress enacts an unconstitutional law—banning a particular religion, say, or abolishing due process—the Supremacy Clause does not prevent states from resisting it. To take an example closer to Healy's subject, the Supreme Court has held that Congress cannot require state officials to perform background checks on gun buyers, since that sort of "commandeering" would upset the constitutional balance between state and federal powers.

It is telling that Healy describes the 10th Amendment as "the Constitutional provision that grants power to the states and people." To the contrary, the federal government has only those powers explicitly granted by the Constitution, while the 10th Amendment merely observes that the rest "are reserved to the States respectively, or to the people." There is nothing racist, right-wing, or sinister about that arrangement. As Supreme Court Justice Anthony Kennedy has observed, it is an important tool for preserving liberty, one that can be useful to progressives as well as conservatives. That much should be obvious at a time when marijuana legalization is one of the major issues pitting states against the federal government.

Addendum: Commenter Hugh Akston reminds me of some relevant reading material: Thaddeus Russell and William R. Tonso on the racist roots of gun control.

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  • Hugh Akston||

    Do you really want to being up the topic of gun control and racism bruh? I mean really. Because we will if you really want to.

  • Raven Nation||

    "It is telling that Healy describes the 10th Amendment as 'the Constitutional provision that grants power to the states and people.'"

    Representative of one of the biggest f**king problems we have today: the idea that the government via the Constitutions GRANTS us rights. Morons.

  • ||

    More than that, it's the idea that the Constitution is what allows states and people to do anything of their own, and things not explicitly "granted" to them is reserved to the Federal government, rather than the other way around.

  • ||

    Resistance is racist.

  • Juice||

    Why don't they ever say it harkens back to nullificationist Thomas Jefferson? (who was also a racist and slave owner)

  • Tulpa (LAOL-PA)||

    You kidding? The NYT would love to have the Alien and Sedition Acts resurrected.

  • Rich||

    Why did anyone "need" to own more than ten slaves?

  • Eduard van Haalen||

    "The gun-fetishists and 10th Amendment bitter clingers, who wanted slaves and free blacks to be able to own guns, contrary to the warnings of Justice Taney in *Dred Scott v. Sandford*...wait, this thing isn't on, is it?"

  • Eduard van Haalen||

    "[acknowledging that black people are entitled to the privileges and immunities of citizens] would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased...*to keep and carry arms wherever they went.*...endangering the peace and safety of the State." [emphasis added]

    Dred Scott v. Sandford, 60 U.S. 393, http://caselaw.lp.findlaw.com/.....&invol=393

  • Kreel Sarloo||

    And if blacks had "the right to enter every other State whenever they pleased," they'd start smoking marihuana and thinking they were as good as white men.

    And they'd start seducing white women with their devil music, jazz.

  • Brandybuck||

    If you need any character references in favor of John C. Calhoun, just head on over to the LvMI. They love the guy because he wasn't at all like that eevil statist Lincoln.

  • Virginian||

    Eh, The CSA used a good thing (secession and independence) to defend a monstrous evil. Lincoln used several evil methods (massive deception, denial of habeas corpus, conscription, aggressive war, direct targeting of civilian populations) to end that monstrous evil. That bad men use good things does not make these things bad in and of themselves. We don't end free speech because the Nazis march in Skokie. We don't end the right to due process because gangsters can hide behind it along with the innocent. We don't confiscate guns because madmen, from time to time, use them to kill.

    Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!
  • BakedPenguin||

    The trouble is, proglodytes today would take this speech to be a criticism of deregulation.

  • marshaul||

    lol, that they would.

  • OldMexican||

    Re: Virginia,

    Lincoln used several evil methods (massive deception, denial of habeas corpus, conscription, aggressive war, direct targeting of civilian populations) to end that monstrous evil.


    Not that he really wanted to end that evil, not even at the very end of his life...

  • Kreel Sarloo||

    That's a pretty big mischaracterization. The fact that Lincoln was willing to compromise and not try to abolish slavery in the existing slave states simply means that he was a political realist.

    His speeches showed that he was basically a radical abolitionist from the 1850s on. He often pulled his punches on the issue, especially for white audiences but his private correspondence indicates that he favored abolition.

    The fact that some of the neoconfederates at the LvMI choose to take passages of his speeches out of context does not alter the facts.

  • ThatSkepticGuy||

    "We don't end free speech because the Nazis march in Skokie. We don't end the right to due process because gangsters can hide behind it along with the innocent. We don't confiscate guns because madmen, from time to time, use them to kill."

    BOOM. Yummy.

  • Ken Shultz||

    "Would a federal ban on "assault weapons" or a 10-round limit on magazine capacity be constitutional?"

    After their ruling on the individual mandate, I wouldn't count on the Supreme Court to get anything right.

    P.S. And just for my own sanity, my rights are what they are regardless of what the Supreme Court says.

  • Virginian||

    http://static5.businessinsider.....-02-03.png

    So idiot leftists and national greatness conservatives are going gaga on my Facebook about that map. I want to castrate the men and irradiate the women to prevent them from breeding. Even if you could get a train up to 220 MPH average speed, that makes it three times slower than a jet. But some people just want to play with their choo choo.

  • ||

    You know, I'm a national-greatness-type guy, but publicly funded railroads seem precisely counter to what made us great. Fuck these assholes and their commie trains.

  • VG Zaytsev||

    What we really need, to win the future, is a nationwide network of canals and high speed barges.

  • ||

    I think irradiation will work on guys too.

  • Virginian||

    Castration is more visceral.

  • Ken Shultz||

    Denver to Albuquerque to El Paso/Juarez needs its own high speed rail line--why?

    They're either thinking this is more than just for passengers, or they're wanting to waste an awful lot of money.

  • Tejicano||

    Denver to El Paso? Jeez, I grew up in and spend most of my time - when in the US - along that track. The population numbers barely rate occasional maintenance of the interstate highway.

  • SweatingGin||

    Is that the John Galt line?

    What's the one that got nationalized in Mexico? Durango-rio line or something?

  • ||

    Everybody knows you should turn left at Albuquerque.

  • SweatingGin||

    The logo at the top seems like they swiped it from Starship Troopers (the movie).

    Maybe it's a star fleet font.

    But yea, look forward to the time you can spend only 18 hours from Chicago to LA (assuming it doesn't actually stop anywhere in between)' rather than the grueling 3 hours of flight.

  • OldMexican||

    If Congress enacts an unconstitutional law—banning a particular religion, say, or abolishing due process—the Supremacy Clause does not prevent states from resisting it.


    The reason being because the Supremacy Clause is very explicit in stipulating that only those laws written that FOLLOW the Constitution ("in pursuance thereof;"...) shall be the law of the land. That means that unconstitutional laws can be ignored (i.e. nullified) and, in fact, have been ignored many times before, for instance: the Fugitive Slave Act.

  • waaminn||

    OK wow those guys really seem to know whats going on. Wow.

    www.Go4Anon.tk

  • Tulpa (LAOL-PA)||

    This is a very dishonest comparison, since the nullification controversy in which Calhoun was embroiled was about tariffs. It had nothing to do with racism or slavery, though that's the association the NYT is obviously trying to create in readers' minds.

  • Tulpa (LAOL-PA)||

    But in an earlier time—say, back when everyone thought it was obvious that Congress did not have the authority to ban alcoholic beverages without a constitutional amenment—the notion that the federal government could simply prohibit the production and sale of politically disfavored products was a bit more controversial.

    You mean like when Congress passed the Marihuana Act and the National Firearms Act? They would just set an absurdly high tax on a product, and in the case of the NFA allow the feds to decide whether they would let you pay it. Effectively, a ban.

  • ||

    I think they were looking a bit further back. To, I don't know, let's say 1920.

  • NL_||

    When the 'slave power' controlled Congress, abolitionists advocated nullification and maybe secession or revolution to oppose slavery. The fugitive slave act was a particular focus for nullification. When Republicans took power, the sides flipped. States rights is a process argument, same as the filibuster, so anybody will wield it when his position is less popular.

  • Tulpa (LAOL-PA)||

    This.

    Plus the New England states wanted to secede during the War of 1812.

  • Night Elf Mohawk||

    Would a federal ban on "assault weapons" or a 10-round limit on magazine capacity be constitutional?

    Let's check... "...shall not be infringed." No, not constitutional.

  • Number 2||

    So I take it that the New York Times and the liberal Democrats they support opposed the medical marijuana laws that the states passed during the Bush years. Because refusing to enforce federal drug laws constitutes a form of "nullification" and that means being pro-slavery, right?

    What's that you say? That was different? Oh...

  • Enjoy Every Sandwich||

    That's one of the amazing things about our electoral process: its power to erase the memories of those who participate in it. I wonder if anybody on the left even remembers who was president before Saint Barack ascended to the throne.

  • mad libertarian guy||

    I wonder if anybody on the left even remembers who was president before Saint Barack ascended to the throne.

    They definitely remember that. They have to blame someone for anything bad that happens. BOOOOOOSH!!

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