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.
