Nullification-Missouri Style

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Respectfully submitted by Lawrence E. Rafferty (rafflaw)-Guest Blogger

The Show Me state, has been making news lately.  Unfortunately, the news it has been making has nothing to do with the St. Louis Arch or the baseball Cardinals, but its legislature’s penchant for attempting to nullify Federal laws that it does not agree with.  The State of Missouri is working hard to nullify Federal gun laws and Obamacare.

“If you ever wondered what a 21st century nullification crisis would look like, look no further than Missouri. One hundred and forty eight years after the end of the Civil War, the New York Times reports, “the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them.” Meanwhile, the Show Me State is doing everything it can to effectively block implementation of the Affordable Care Act.” Daily Kos

I guess Missouri wants to Show the rest of the nation that the Constitution and its Supremacy Clause is not worth the parchment it is written on.  In case you are not sure what is meant when a State tries to nullify a Federal law, here is a little primer on the subject.

‘ “Nullification was a 19th century theory, identified most closely with South Carolina Senator John C. Calhoun, based on the notion that the states created the Constitution and retained the power to determine whether the federal government complied with limitations on its power. This theory has been universally rejected throughout the course of American history by the courts as inconsistent with the Constitution. As the Constitution’s preamble makes clear, ‘We the People,’ not the states, ‘ordain[ed] and establish[ed] th[e] Constitution.’

“The Constitution’s Supremacy Clause provides that federal law is the ‘supreme Law of the Land,’ and Article III of the Constitution gives to the federal judiciary the power to decide “all cases arising under the Constitution.’ States, thus, cannot simply declare that the acts of the federal government are null and void. But, despite the rock-solid arguments against nullification, state governments continue to press the idea that they have the power to treat certain federal laws as null and void. These arguments, while not new, have no basis in the Constitution.” ‘  Maddowblog

What would make the Missouri state legislature think that they had the power to declare acts of the Federal government null and void, when as suggested by the David Gans quote in Maddowblog, the legal arguments against nullification are “rock solid”?  Could politics be at work here?  Is it a coincidence that the nullification “movement” has come to popularity since President Obama took office?

I wish I could say that the nullification attempts are restricted to Missouri.  However, the states of Texas, Kansas, Mississippi and Arizona have all been involved in attempting to nullify Federal laws.  In Missouri, the legislature is attempting to make it a crime for any Federal law enforcement officer to enforce Federal gun laws.

‘ “Like Texas, Mississippi, Arizona and a host of other states, Missouri is seemingly turning to the Confederate Constitution as the law of the land. Hoping to override Democratic Gov. Jay Nixon’s veto, Missouri Republicans are aiming at the U.S. Constitution’s Supremacy Clause:

Richard G. Callahan, the United States attorney for the Eastern District of Missouri, is concerned. He cited a recent joint operation of federal, state and local law enforcement officials that led to 159 arrests and the seizing of 267 weapons, and noted that the measure “would have outlawed such operations, and would have made criminals out of the law enforcement officers.”

And not just criminals. As the Times explained, “A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.” ‘  Daily Kos 

The State of Missouri is attempting to turn the Constitution on its head and at the same time, criminalize the actions of sworn Federal law enforcement officers who are just doing their duty.  I wonder if the citizens of Missouri understand how much money it will spend defending its actions when the Federal government sues the State of Missouri if their nullification plans come to fruition?

The State of Missouri is also trying its darndest to prevent the Affordable Care Act from being implemented in its state.  It is even ordering state officials to not do anything to aid in its implementation.  According to the Daily Kos article linked above, the Missouri State legislature is attempting a “de facto” nullification of Obamacare.

‘ “Along with Arizona, Alabama, Oklahoma, Texas and Wyoming, Missouri is refusing to enforce the ACA’s new insurance reforms and prohibitions, such as refusing to cover those with pre-existing conditions, using “rescission” to drop coverage for those who become sick, discriminating against women and setting annual or lifetime benefits caps. And while Colorado, California, Oregon and other blue states are spending hundreds of millions of dollars to fund thousands of customer service “navigators,” in Missouri “local officials have been barred from doing anything to help put the law into place.” ‘  Daily Kos

Whether the dispute is about gun laws or health care, it seems that Missouri is showing the country that it won’t sit by and watch its citizens get protected by Federal gun laws or Health care systems.  At what point do the hundreds of thousands of Missouri citizens who need health care actually factor into the state legislatures nullification attempts?

When any state has a legitimate beef against a Federal law or policy, it can use the courts to sort out those issues.  However, when the state legislature is relying on a 19th century theory that has been universally rejected by the courts, is that legislature actually working on behalf of its citizens?  Or is it working on behalf of political or corporate interests?  What do you think?

94 thoughts on “Nullification-Missouri Style”

  1. **Is it a coincidence that the nullification “movement” has come to popularity since President Obama took office? **

    I’m disappoint in you Rafflaw, even when I presented you with evidence proving your assertion false, that you weren’t a big enough person to even muster an excuse that you’re insertion of inflammatory racism into your article might not/may not have been helpful & that it adds nothing to the story line.

    The reason I’m interested is that Oklahoma, like many other places, we have here every kind of Native American Tribal members there are & every race from around the world.

    Most of us are trying to get along with all these people & I resent people using that race crap, buzz words like neo confederate, etc.., as a political tool to spread hate & divide people rather then unite them.

    Below is a story on some of the people harmed by your type of slide of hand hate speech.

    ** “I Hate White People”: Media Downplays Brutal Racial Attack

    More black-on-white violence largely ignored by the mainstream media

    UPDATE: After being in a coma since the attack, Jeffrey Babbitt died tonight from his injuries.

    Kit Daniels
    Prison Planet
    September 9, 2013 **

    http://www.prisonplanet.com/i-hate-white-people-media-downplays-alleged-racial-attack.html

  2. David scrawls, “Higher laws always nullify lower laws that contradict them, even before the courts have ruled on the matter.”

    **************************************

    What a load of barnyard puckey. Higher laws than the ones on the books? Show me any statute, law textbook, or case law where there is such a creature. That is the kind of crap the sovereign citizen movement, neo-nazis and right wing fundaloons spew. Which one of those do you identify with the most?

    Even a bad law is still the law until it is repealed or overturned on appeal. As a law, bad or not, it is still the law and enforceable. Dred Scott is an example of that. Dr. King went to jail for violating the law. Bad law, yes. Enforceable anyway, yes–until it was eventually overturned. Miscegenation laws were on the books, and enforced, for the first two centuries of this country’s existence until they were overturned in Loving v Virgina.

    When individuals decide a law is bad and deliberately violate it in protest, they must be prepared to face the consequences as Dr. King did. If every person decided they would only obey those laws with which they agree, we would have anarchy. We do not want this country to become Somalia West.

    What a craptastic load of grandiosity.

    1. OS wrote: “When individuals decide a law is bad and deliberately violate it in protest, they must be prepared to face the consequences as Dr. King did.”

      Sounds like you agree with me then. As I said, we may suffer for doing it.

      OS wrote: “If every person decided they would only obey those laws with which they agree, we would have anarchy.”

      No, we would have freedom from tyranny. In any case, it is not about picking and choosing which laws we agree with. It is about recognizing when a lower law contradicts a higher law. If the Constitution gives you the right to bear arms, and a lower law, whether by the federal government, a State Statute, or a local ordinance, attempts to violate that higher law of the Constitution, he have not only the right, but the duty to violate that law in order to preserve freedom. It is amazing to me how some people support going to war with other countries to secure liberty and freedom, calling it the price of freedom, but then they deny the duty of citizens to disobey their own government when the government violates its own laws.

  3. I don’t know why I should need to explain to an adult how laws work. I’m no legal scholar, but I can read the Constitution. A high-school education provides some indication of what one can and cannot do, legally.
    Is this deliberate ignorance a neo-confederate lesion? Their lesions are legion.

    Thanks, Swarthmore mom. CNN is obviously incorrect. HB 436 would not have nullified anything.
    I’m sure this fantasy exercise served its purpose. The cretins in the MO legislature can strut about, saying, “Yep, we almost beat them Yankees, again!”
    This ain’t a game of horseshoes. “Almost” don’t cut it.

  4. Kearney, Missouri (CNN) — [Breaking news update at 9:44 p.m. Wednesday]

    A controversial gun measure won’t become law in Missouri after a push to override the governor’s veto fell one vote short of approval in the state’s Senate Wednesday. The measure, HB 436, would have essentially nullified federal gun laws in Missouri.

  5. David,
    You may certainly choose to disobey any law that you wish, as I stated above. You may be disciplined for it.
    Authorities following the law, when they arrest you, may be behaving “unjustly” in your opinion, but they are not behaving illegally.

    Two of my friends knowingly disobeyed federal law, and served prison time for it. They were not foolish enough to argue that the federal law was unConstitutional. That’s a waste of time. They took their lumps.

    So, David, one lump, or two?

  6. David,
    Once again you show you do not understand how laws work. A law is not “invalid” until it has been ruled so by a court of competent jurisdiction. That means if you don’t like a law, or think it is wrong, it is still a law. Disobeying or flaunting a law is, by definition, illegal. Illegal acts have consequences.

    The guy who shot Dr. Tiller took it upon himself to decide the law against murder did not apply to him and his belief system. Dr. George Tiller’s murderer has a RED date of 2060, when he will be 98 years old. Fifty years without the possibility of parole.

    It wasn’t that clown’s first self-proclaimed above the law behavior. He was caught with explosives and also did time for not paying taxes. See how this works? Make up which laws you will and will not obey and there are consequences.

    Notice how I did that? Mentioned Dr. George Tiller a couple of times, but the bottom feeder who shot him does not get a mention by name. As it should be. Let him die of old age in prison in anonymity.

    1. OS wrote: ” A law is not “invalid” until it has been ruled so by a court of competent jurisdiction.”

      Not true. Higher laws always nullify lower laws that contradict them, even before the courts have ruled on the matter. Once the high court declares such laws as unconstitutional, the legal situation is as if that invalid law was never created to being with. The invalidness does not start at the point when the court has ruled it so, which is what you seem to assume.

      Before Lawrence v. Texas, there were 14 states with anti-sodomy laws. These laws were invalid even before the ruling by SCOTUS in 2003. People of the same gender always were free to engage in sexual relations even before the court ruling. The court ruling simply made clear that these were invalid laws. These laws were always invalidated by the Constitution which was written and in force prior to the creation of these illegal laws. Any arrests done under the authority of these laws were invalid and illegal.

      Our Constitution is somewhat unique in that it attempts to make the people sovereign. Tyranny is always about an hierarchical government where there is a chain of command that stops at the top in an ultimate sovereign whose personal will overrides all laws. Our Constitution tries to flip that somewhat, recognizing ultimate authority resides with the people, but establishes a federal government as a system of checks and balances. While there is that chain of command that makes common sense for the enforcement of law, it creates limited rights for that higher government. Ultimate legal authority is meant to be retained by the people, and this is what gives rise to the concept of fundamental rights that no government is allowed to violate. It is a government of the people, for the people, and by the people. You either believe that concept or you don’t. If you believe this declaration, then legally the sovereign is the people, next the States, and last the federal government. The Ninth and Tenth Amendments were designed to protect this concept.

      Men who get into power in the Judicial system usually want to behave as tyrants, so they deceive the people into thinking that the laws they create are valid until overruled by a higher court. This simply maintains their power over the people, contrary to the democratic principle that the people are the sovereigns and that government only functions with the consent of the governed. Educated people who understand the Ninth and Tenth Amendments and the history and philosophy of our legal system know better. We are free to operate within the freedoms we recognize that we have. Yes, we may suffer for it. I have been arrested several times for exercising my rights, but the courts ultimately have justified me and have invalidated the law which pretended to make my arrest legal, or the actions of officers who arrested me illegally were invalidated.

      In some cases, you will get people who have legal arguments not recognized by the courts and who attempt to usurp the authority of the court system. It is one thing to exercise a right that you have, but it is quite another thing to usurp the authority granted to the court system. Shooting an abortionist is usurping authority granted to another. The authority for punishing crimes does not reside with any individual. It resides with our courts who operate based upon the laws created by a legislature. In contrast, speaking in a public park is exercising a legal right and is not the usurpation of authority, but the free exercise of authority that resides already with the individual.

      The Second Amendment protects the right of the people to keep and bear arms, and if the federal government attempts to violate this right without a Constitutional Amendment to repeal the Second Amendment, they are violating the rights of the people. Those federal laws would be illegal. States that fail to violate such illegal federal laws are failing their duty to the people of their State. They should also file lawsuits on behalf of the people, but they should not allow tyrants of the federal government to usurp authority over the people in a way that has not been legally granted to them.

  7. David,
    If the states are “sovereign entities,” then surely you can show me where the word “sovereign” occurs in the Constitution of the U.S.A. I can’t seem to find it. A nation is sovereign within its borders. Individual states within the U.S.A. cannot be sovereign. They are not nations. Why do I need to explain something this obvious? This is the old slave-state argument. It’s been tested and settled. Think it’s about time to drop it?

    A state may declare a federal law unConstitutional, if it wants to waste its time, but it will have no legal bearing. It’s just blah-blah. If the state follows through and breaks the federal law, the state can be sanctioned by the Federal government.

    “…if the federal government creates a law that attempts to take away a right I have, and that law is not specifically enumerated in the Constitution itself, then I have a legal right to disobey that law.”

    You can disobey any law you choose, but it won’t be legal. That’s at your own risk.

    “I don’t have to wait for the SCOTUS to declare it unconstitutional. If I want to prevent tyranny in the federal government, then I not only have a right to disobey the federal government, but I have a duty to do so.”

    That’s fine. You can declare any law you want unConstitutional. You will be in violation of the law if you do not obey it. You may be subject to punishment.

    By a state “decree,” I mean a state court declaring, on its own, that a federal law is unConstitutional. It’s unConstitutional for a state to do that, on its own.
    So, to reiterate:
    It’s unConstitutional for a state to decree that a federal law is unConstitutional. A state may contest any law in court.

    1. Bob Kauten –

      When a person disobeys an invalid law, he expects that the SCOTUS would vindicate his actions should it require being heard by that court. For example, if I know the Constitution protects my right to speak in a public park, even though the city expects me to apply for a permit 10 days ahead of time to do it, I may violate that law and expect the legal system to protect me once it is appealed to the Supreme Court. Yes, I might be arrested and be harmed by the authorities, but this would all be done unjustly by the authorities.

      In the same way, States may exercise rights that are not specifically prohibited to it by the Constitution. They don’t have to go through some lengthy legal process of asking permission from the federal government to approve it first. What you advocate for leads to tyranny. This is exactly what tyrants want, for the people to ask permission to do what the law has already acknowledged is their right to do.

      Consider the following quotes about how unconstitutional laws are treated as void… as never having been made in the first place, when the high court has declared the law or regulation unconstitutional:

      “The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it …. A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, insofar as a statute runs counter to the fundamental law of the land, it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.
      — (American Jurisprudence, 2nd edition, Vol 16, Section 177)

      “Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There are, it is true a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from it’s perpetration. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.” –(William Blackstone – Section 2 – Of the Nature of Laws In General)

  8. the actions of sworn Federal law enforcement officers who are just doing their duty….
    That’s a good one.
    Gee, I wonder why all those states would try to send a message to the criminal Feds? It’s just terrible that they want freedom from voluminous, onerous federal laws.

  9. If only “We the People” follow the rules, and the government doesn’t, they can put that on the tombstone of what used to be America. I agree that this probably isn’t going to end well, as the shades of Jefferson Davis and John C Calhoun can attest, but it’s good to see someone beyond a few scattered individuals standing up and saying “enough is enough.”

  10. Darren: “I can see what you are saying about your concern for someone who has a dangerous mental disorder having a concealed pistol license (or a firearm for that matter) but it is arguable if being blind constitutes the same nefarious threat to society as a blind person being able to possess a concealed pistol. Carrying a a firearm is a civil right in Washington. …. It is illegal for an able bodied hunter to shoot game from a motor vehicle or within a certain distance of a public roadway. But a disabled person may apply for a disabled hunter permit that allows the accomodation with the vehicle.”

    **LOL, well thank Dog they can shoot from vehicles and close to roadways too! Blind people with guns, what could possibly go wrong? LOL, I am truly amused by this but it still gets filed under the heading of ‘the law is an ass’ IMO. 🙂

    I know about the petitions for ex-felons, I’ve been reading about that. It seems that some states make those petitions hard to comply with using added requirements. Florida comes to mind from my reading. I’m more digital on the question: once the prison door slams shut as one walks out or the parole officer/probation officer checks the ‘completed successfully’ box on the proper form, the citizen should immediately have access to all rights and obligations of citizenship. It shouldn’t even be a legal question in my way of thiking. I suspect the Jim Crow and class aspect’s of incarceration come into play in this aspect of the justice system.

    Thanks for the reply, it was very interesting.

  11. Humm…nullification on gun law… ANd fundamental healthcare ?? That’s all you want ??? Ok, here”s the deal for nullification… If you want to have to abide by ZERO federal gun law in Missouri, then the way you do that is leave the guns here and YOU leave…AMF.

    AND, the healthcare question…this one is easy… You don’t want healthcare, ok, we’ll put you on the list and if ANYTHING HAPPENS TO YOU, YOU’RE ON YOUR OWN… NO DOCS, NO MEDS, NO PATCHING UP, NO DRUGS, NO PRESCRIPTIONS, NO SHOTS, NO INHALERS, NO BANDAGES, NO STITCH WORK, NOTHING… YOU COME IN FOR HEALTHCARE FOR ANY REASON – YOU GET NOTHING – TURNED AWAY. DIE IN THE DRIVR AND WE DO NOT CARE…

    HOORAY !!!

  12. Additionally, the state has laws for disabled hunters. It is illegal for an able bodied hunter to shoot game from a motor vehicle or within a certain distance of a public roadway. But a disabled person may apply for a disabled hunter permit that allows the accomodation with the vehicle.
    —————————————————————————————–
    Darren

    i guess that’s right, there is no legal obligation to track and finish a wounded animal.

    but damn

  13. Bob do you really have any idea how many people are viewing your & rafflaws comments?

    And I’ve a pretty fair idea what most of them are thinking, but it’s late & that gives rafflaw time to attempt to clean up his position on a number of issues.

    Gnite.

  14. Oky1,
    “Because what you’re claiming is that if VP Dick Cheney was having a dinner party in the WH basement & needed is nightly CCTV entertainment you would comply, under John Yoo’s Tortured Memo, & take a pair of pliers & crush a 10 yr old boy’s balls in front of his dad to get him to confess to whatever. ”
    Are you all right?
    Do you read the things that you write?

  15. Best I can recall one of the persons hung at Nuremberg was German’s equivalent to the US’s Chief Justice of the Supreme Court & was hung to make a point of law regarding people/govts enforcing Supremacy.

    Judgment at Nuremberg

  16. Lottakatz

    In our state here, the mental illness would apply as a restriction because federal law mandates that those judged to be mentally ill are prohibited in possessing this. But that can be reversed by a court order and the person may be allowed a concealed pistol license afterward. The same applies with sufferage (voting rights) and restoration of firearm rights by ex-felons who may petition a superior court judge after 7 (?) years post conviction.

    I can see what you are saying about your concern for someone who has a dangerous mental disorder having a concealed pistol license (or a firearm for that matter) but it is arguable if being blind constitutes the same nefarious threat to society as a blind person being able to possess a concealed pistol. Carrying a a firearm is a civil right in Washington.

    Article 1 Section 24 of the state constitution reads: RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

    Washington state does not have a firearms proficiency requirement to obtain a concealed pistol license. So the government lacks the authority to deny a CPL based on if the applicant cannot see a target when shooting. BEcause of this if the sheriff or chief of police denied a CPL for this reason it would be construed as arbitrary and unlawful by the courts.

    Additionally, the state has laws for disabled hunters. It is illegal for an able bodied hunter to shoot game from a motor vehicle or within a certain distance of a public roadway. But a disabled person may apply for a disabled hunter permit that allows the accomodation with the vehicle.

  17. As I understand it everything Hitler & his Nazis did was legal under German law at the time.

    I guess you boyz must have missed the fact that they hung a bunch of the SOBs at Nuremberg.

    Because what you’re claiming is that if VP Dick Cheney was having a dinner party in the WH basement & needed is nightly CCTV entertainment you would comply, under John Yoo’s Tortured Memo, & take a pair of pliers & crush a 10 yr old boy’s balls in front of his dad to get him to confess to whatever. (I can’t recall all the details of that case)

    Now I realize I’m not the best person to be explaining to you boyz the facts of life, but my words should be clear enough for you to get the point that you & the States are Legally/ethically compelled disobey unconstitutional court rulings.

    We in the USA are about 3 years past the moment the Govt got the msg out that the states/citizens can just “Go eat Cake”, so we’ll all see together how future events shake out.

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