States Can’t Really Overrule Obama on Guns, But They’re Certainly Trying

Missouri nearly passed a law this week exempting guns in the state from federal rules, but experts say the nullification movement isn't legally sound

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Orlin Wagner / AP

Participants gather for a rally to override Gov. Jay Nixon's veto of a gun bill on the south lawn of the Missouri State Capital in Jefferson City, Mo., Sept. 11, 2013

Throughout the day on Sept. 11, the Missouri General Assembly voted to override the 33 vetoes issued this year by Democratic Governor Jay Nixon. One by one vetoes fell, as the Republican-controlled legislature marshaled a two-thirds majority to overcome the governor’s objections. Conventional wisdom held that the Second Amendment Preservation Act, a controversial measure that would nullify some federal gun laws in the state and make it a crime for federal agents to enforce those laws, would survive Nixon’s veto. But the override failed by a single vote in the senate. And in the end, it may not have even mattered.

Laws prohibiting enforcement of federal gun statues are on the books across the border in Kansas and in Montana, as well as Alaska, Arizona, Idaho, South Dakota, Tennessee and Utah. Kansas’s Second Amendment Protection Act, which Gov. Sam Brownback signed into law in April, says that firearms manufactured in the state that have not left the state’s borders are exempt from federal rules. Montana’s Firearms Freedom Act, which went into effect in October 2009, also argues that firearms manufactured in the state are not part of interstate commerce and therefore not subject to federal control.

Similar bills have appeared in more than a dozen states in recent years, popping up in Colorado, Louisiana, Nebraska, and South Carolina. According to interviews with sponsors of such bills in Pennsylvania, Oklahoma and Virginia, many state lawmakers were concerned with President Obama’s push for new gun control measures and saw these laws as a way to protect their citizens from what they consider government overreach.

“To some extent, those laws can be seen as a kind of civil disobedience, a form of dramatized protest saying the federal government shouldn’t be doing what it’s going,” says Gregory Magrarian, an expert in constitutional law at Washington University School of Law in St. Louis. “Sometimes nullification statutes are symbolic in their intent.” In the eight states where gun nullification are on the books, there is little evidence that they would survive a legal challenge.

The Montana law already met a major legal blow. In 2009, Montanan Gary Marbut sued to be able to make and sell his .22 caliber rifle, the “Montana Buckaroo”, without federal interference. The Ninth Circuit Court ruled on Aug. 29  of this year that federal laws requiring licensing fees and government inspections preempt Montana’s law. “[E]ven if Marbut never sells the Buckaroo outside of Montana, Congress could rationally conclude that unlicensed firearms would make their way into the interstate market,” Judge Richard R. Clifton wrote for the three-judge panel, citing the 10th Amendment’s so-called Commerce Clause. Mabut said he will appeal the decision to the Supreme Court.

When Nixon vetoed Missouri’s nullification law, he cited a different rule: the Constitution’s Supremacy Clause, which gives precedence to the laws of the nation over those of respective states. The Supreme Court has routinely ruled in favor of the federal government on supremacy issues, and several legal experts who spoke with TIME said that nullification laws will probably not survive future court cases.

But that doesn’t mean states will stop trying. “Historically, nullification laws have been enacted at various points in time,” says Richard Levy, professor of constitutional law at the University of Kansas. “A lot of time when there are controversies and there’s an ideological polarization, nullification laws crop up, but historically they’ve never worked.”

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