RUTHFULLY YOURS

Senator Chris Murphy (D-CT) is exposing his ignorance of American history for all to see.

On MSNBC, he recently called laws passed in Alabama and Kansas ^[1] that sought to prevent enforcement of any new federal gun control laws “laughable.”  (Other states are preparing to pass similar laws.) While there are certainly legitimate questions as to how far states may go in this area, there is nothing laughable about the concept of state nullification: it is a fundamental part of U.S. history and constitutional law.

It started with the Virginia and Kentucky Resolutions, adopted by the legislatures of those two states during 1798 and 1799 in opposition to the newly passed Alien and Sedition Acts. Congress asserted authority to prosecute false and demeaning statements about members of the government; proponents of the two resolutions argued that these laws exceeded federal authority ^[2]. In particular, the Sedition Act, the Virginia legislature argued, violated the First Amendment’s protection of freedom of the press and of speech. Kentucky’s legislature ^[3] held:

That the several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy …

In later times, nullification came up again as free states resisted ^[4] the Dred Scott (1857) decision by the U.S. Supreme Court, passing personal liberty laws that sought to prevent runaway slaves (and those merely accused of being runaway slaves) from being dragged back into slavery, often on less than persuasive evidence.

More recently, we have decisions such as New York v. U.S. (1992) ^[5] and Printz v. U.S. (1997) ^[6] that — based on the Tenth Amendment ^[7] – found that there were limits on the authority of Congress to order state and local governments to enforce federal laws. These decisions do not hold that states may prohibit federal officials from enforcing such laws, but they at least recognize that the national government has substantial limits to its powers.

To argue that state governments have authority to prohibit federal law enforcement agencies from enforcing the law is a stretch, but it isn’t laughable: it’s a serious question as to whether the laws being discussed qualify as constitutional or not.

Senator Murphy is on even less solid ground concerning the purpose of the Second Amendment. Said Murphy:

And this idea that the Second Amendment was put in there in order to allow citizens to fight their government is insane.

Sigh.

Take a look at what the men who wrote the U.S. Constitution and the Bill of Rights had just done: they had fought their own government, kicking the British out at gunpoint. You can get a taste of some of the attitude these Americans had by reading the New Hampshire Constitution of 1784, Article X ^[8]:

The doctrine of non-resistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

Other members of the founding generation clearly recognized that armed resistance was the last resort against tyranny, such as Alexander Hamilton, in Federalist 28 ^[9], who argued that the state governments would provide the unifying force required to defend against a tyrannical national government. Without this?

The citizens must rush tumultuously to arms, without concert, without system, without resource; except in their courage and despair.

Hamilton clearly saw that this was not as good as state governments organizing this resistance, but the right to armed rebellion was nonetheless legitimate.

Similarly, James Madison — principal author of the Bill of Rights, Senator Murphy — discussed in Federalist 46 ^[10] why the new national government was not quite the tyrannical danger that some opponents claimed, pointing out that the government could simply not have a large enough regular army to suppress rebellion because they would be greatly outnumbered by the state militias (at this time, effectively every white adult man):

It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.

James Madison: another crazed NRA member, I suppose.

Additionally, Senator Murphy, juris doctor, could review the works of U.S. Supreme Court Justice Joseph Story. From his Commentaries on the Constitution of the United States (1833) ^[11]:

The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.

Even the relatively rare nineteenth state Supreme Court decisions that upheld laws regulating knives or the carrying of weapons were careful to acknowledge the purpose of the right to keep and bear arms. Aymette v. State (Tenn. 1840) ^[12] acknowledged that the right, derived from the English Bill of Rights (1689), was so that the people, “being armed, they may as a body rise up to defend their just rights, and compel their rulers to respect the laws.”

The same decision, by the way, held that only military weapons were protected — and this is next to the most restrictive gun-rights decision of the entire nineteenth century.

A more expansive view of the right comes from the Texas Supreme Court in Cockrum v. State (Tex. 1859) ^[13], which held that both the Second Amendment and the Texas Constitution’s arms provision had at least one aspect in common:

The object of the first clause cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed.

These are not isolated examples; my book For the Defense of Themselves and the State ^[14] has hundreds more.

Perhaps the insurrectionary model of the Second Amendment is out of date today, but I don’t think so. If anything, the twentieth century — the century of multiple genocides, often by the governments of the victims — is a stronger argument for a population able to fight back than it was in 1789. To pretend, as Senator Murphy does, that the insurrectionary model of the Second Amendment is crazy or ahistorical? That is crazy and ahistorical.