States push against federal gun laws

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Across the country, a thriving dissatisfaction with the U.S. government is prompting a growing spate of bills in state legislatures aimed at defying federal control over firearms - more than 200 during the last decade, a News21 investigation found.

Particularly in Western and Southern states, where individual liberty intersects with increasing skepticism among gun owners, firearms are a political vehicle in efforts to ensure states' rights and void U.S. gun laws within their borders. State legislators are attempting to declare that only they have the right to interpret the Second Amendment, a movement that recalls the anti-federal spirit of the Civil War and civil rights eras.

"I think the president and the majority of Congress, both in the House and Senate, are just completely out of touch with how people feel about Second Amendment rights," said Missouri State Sen. Brian Nieves, who has fought for bills to weaken the federal government's authority over firearms in his state.

In Idaho, the Legislature unanimously passed a law to keep any future federal gun measures from being enforced in the state. In Kansas, a law passed last year says federal regulation doesn't apply to guns manufactured in the state. Wyoming, South Dakota, and Arizona have had laws protecting "firearms freedom" from the U.S. government since 2010.

A News21 analysis shows 14 such bills were passed by legislators in 11 states, mainly in Western states, along with Kansas, Tennessee, and Alaska. Of those, 11 were signed into law, though one was later struck down in court. In Montana, Missouri, and Oklahoma, three others were vetoed.

More than three-quarters of U.S. states have proposed nullification laws since 2008. More than half of those bills have come in the last two years after the shooting at Sandy Hook Elementary School in Newtown, Conn. All but three have been introduced since President Obama took office.

Pennsylvania has seen five bills proposed in the last three sessions, but none were passed. Three were proposed in 2013, one of which would have prohibited the regulation of firearms by executive order.

None have been proposed in New Jersey. There, state firearms laws are stricter than federal law, said Evan Nappen, a New Jersey attorney who focuses on firearms-related issues and is pro-gun rights.

"I mean, let's face it, New Jersey is not the bastion of firearms freedom by any means," he said. "Who is going to pass a Jersey nullification law when all they're talking about is an antigun law?"

But in numerous other states, beneath the policy jargon lies a culture of firearms woven into the heritage and politics of states whose histories were shaped by guns.

The federal government "is diving off into areas unchecked that they're not supposed to be involved in," said Montana State Rep. Krayton Kerns, who introduced a bill in 2013 to limit the ability of local police to help enforce federal laws. "Not only is it our right in state legislatures to do this, it's our obligation to do it. Somebody's got to put a 'whoa' on it."

Opponents say it's not federal gun regulation that's unconstitutional, but laws to nullify it.

The Brady Center to Prevent Gun Violence filed suit against Kansas on July 9 to stop enforcement of the state's recently passed Second Amendment Protection Act.

"The law should not be called the Second Amendment Protection Act," said Jonathan Lowy, director of the center's Legal Action Project. "It should be called the Gun Violence Preservation Act."

Two types of bills are the primary vehicles for the movement, both based on model legislation introduced in statehouses from Tallahassee to Juneau.

The first type holds that federal laws do not apply to firearms manufactured and sold within a given state, relying on the Constitution's interstate commerce clause. It says Congress can regulate trade between states, but says nothing about trade within states.

Under Utah law, for example, guns made, purchased, and used in the state are exempt from federal laws. Commonly known as the Firearms Freedom Act, versions of the law have been debated during 78 legislative sessions across 37 states in the last decade.

The other approach says gun regulation falls outside the scope of the federal government's power, making it state territory. Such bills, often known as the Second Amendment Preservation Act, usually say state officials cannot enforce federal gun laws or limit the ability to do so, and some bills have tried to impose penalties on officers who help federal officials.

"It's basically saying, 'Federal government, if you want to enforce federal firearms laws in the state of Arizona, you're welcome to do it, but we won't give you any assistance. So in other words, no state police help with [Bureau of Alcohol, Tobacco, Firearms and Explosives] raids, no local law enforcement enforcing a federal gun law, none of that," said Mike Maharrey, national communications director of the Tenth Amendment Center, a for-profit nullification group based in California.

The Kansas law makes it a felony for federal officials to enforce U.S. firearm law.

The Brady Center suit against the Sunflower State indicates that some are beginning to view nullification as a threat.

"This is a matter both of constitutional law and common sense," said Stuart Plunkett, a Brady Center attorney in that case. "Our system of laws would break down if each of the 50 states could offer its own interpretation of congressional authority over interstate commerce."

The Tenth Amendment Center responded to the suit with a pledge to ramp up its campaign to pass Second Amendment Preservation Acts in more states in 2015.

"To us, this is a BIG green light to push harder than ever to protect the 2nd Amendment through state level resistance to federal gun-control measures," Tenth Amendment Center founder Michael Boldin wrote in a July 9 statement.

The federal government has said little on the matter, but Attorney General Eric H. Holder Jr. rebuked Kansas for its law in April.

"In purporting to override federal law and to criminalize the official acts of federal officers, [Kansas' law] directly conflicts with federal law and is therefore unconstitutional," he wrote in a letter to Gov. Sam Brownback.

The measures often fizzle, even in conservative states. The National Rifle Association doesn't support nullifying federal gun laws, because that could undo NRA legislative success in Washington.

"I think that is a misguided distraction," said Todd Rathner, an NRA board member from Arizona. "I empathize with what they're trying to accomplish, but I am not convinced it's the right way to do it."

In Montana, one man has been pushing these bills since 2005.

Gary Marbut, president of the Montana Shooting Sports Association, has written scores of gun bills that have been introduced since 1985 in the Montana statehouse, 64 of which have become law.

A self-appointed guardian of state gun rights, he has failed in three bids for a seat in the state legislature but succeeded in starting a movement to weaken federal authority of guns across the country.

Marbut, who is running for state representative in 2014, didn't expect other states to take up the cause. His focus on guns seems almost incidental. His true target is challenging federal authority.

"I would like to see some of this power shifted back from governments, especially the federal government, to the states and to the people," Marbut said.

One force behind these bills isn't even a gun-rights group.

The Tenth Amendment Center, which created the model firearms legislation known as the Second Amendment Preservation Act, is actually focused on the Tenth Amendment, which says any powers not granted to the federal government by the Constitution belong to the states.

The group's "Tenther movement" promotes federal firearm law nullification, but also backs legalizing marijuana and nixing Common Core education standards.

Others say nullification efforts will not stand up in court.

"Nullification is no more valid today than it was during the 1950s during desegregation or during the pre-Civil War era," Brady Center attorney Plunkett said.

But constitutional conservatives aren't giving up.

What seems like a purely pro-gun trend speaks to a deeper dissatisfaction among a large swath of Americans.

"I think it's part of a larger interest in pushing back against federal power," Maharrey said.