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Recently, Joel Osterhoudt of Reason published an interesting piece recognizing the rise in Second Amendment “sanctuary” states and cities across the nation. As Osterhoudt rightly recognizes, this movement largely relies on the model established by the immigration and marijuana sanctuaries that arose in progressive cities and states in response to the Trump Administration.
But in recognizing this important revelation in protecting individual rights, the article confuses two very distinct concepts—Anti-Commandeering and Nullification.
This isn’t just a mere academic dispute over legal terms created by and litigated in our legal system. The distinction is the difference between winning and losing. And while these states have placed themselves in a position to win, this confusion puts them in danger of losing—whether that be in a courtroom or the court of public opinion.
Nullification is a legal theory that has been around since the birth of our Republic. The idea is that state governments can “Nullify” federal law if the state believes the law is unconstitutional. This isn’t mere non-cooperation—this is a state affirmatively and actively preventing federal officials from enforcing federal law within a state’s borders.
Regardless of your views of the propriety or constitutionality of Nullification, it has never received any real support and has never been upheld by any court in the United States. When Thomas Jefferson and James Madison drafted resolutions for the states of Kentucky and Virginia arguing in support of Nullification, they received little support from their peers or other states.
For those of us who argue for interpreting the Constitution based on its Original Public Meaning—also known as Originalism—it is incredibly difficult to say the Framers intended for Nullification to be a part of our Constitutional Republic when the Framers had an opportunity to support Jefferson and Madison but chose not to.
Nullification arose again in the slave-owning south with John C. Calhoun at the head of the movement—arguing for South Carolina to Nullify any federal law banning slavery. It was again rejected.
In addition to failing to gain any popular support in the 18th and 19th Centuries, the Supreme Court has also repeatedly rejected Nullification. As early as 1809, […]
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JD Rucker – EIC