An Unconstitutional Act Is No Law at All

In a recent article, I made the case that the “gun people” need to steal a page out of the “weed people’s” playbook and take action to nullify unconstitutional federal gun laws.

State, local and individual action has effectively nullified federal marijuana prohibition in half the country. Heck, they’ve even nullified it in the federal city of Washington D.C. Congress can pass all the laws it wants. Presidents can sign executive orders to their heart’s content. The Supreme Court can issue its opinions. But without state and local cooperation, the federal government can’t enforce a damn thing.”

I got some pushback from several readers arguing that important differences exist between “gun people” and “weed people,” making it more difficult to use state and local action, and noncooperation to effectively nullify federal acts infringing on the right to keep and bear arms. One commenter made a pretty astute observation.

I agree that gun owners need to stick together. It is my opinion that there is a fundamental difference between the ‘weed people’ and gun owners. Legal gun owners have inherent desire to be legal. The ‘weed people’ have been skirting the law for years. I’d say that they have a disdain for law, and it is for that reason there is no concern to attempt to thwart the government.”

I find it hard to reconcile that with the “come and take it” mentality many gun people espouse, but it would explain the reluctance of Second Amendment activists to aggressively push back against the federal government. Maybe that’s why they instead rely on a traditional national strategy of electoral politics and federal law suits.

But these national strategies will continue to fail those who wish to preserve their right to keep and bear arms, especially if the federal supremacist mentality continues to spread. The “weed people” found success in a bottom up strategy that the federal government could not effectively thwart. The gun people could do the same if they would utilize some of the tactics.

Gun owners need to wrap their heads around an important fact. When they resist federal gun laws, they do no act “lawlessly.” In fact, it’s the federal government behaving in a lawless manner by ignoring the constitutional limits on its power.

The Constitution stands as the highest law in the land. The Second Amendment prohibits the federal government from taking any action that “infringes” on the right to keep and bear arms. Whenever the federal government enforces a law that in any way limits, undermines or encroaches on the right to keep and bear arms, it violates the Constitution. As North Carolina ratifying convention delegate James Iredell put it, a law “not warranted by the Constitution is a bare-faced usrupation.”

In fact, any law contrary to the Constitution is no law at all, as Alexander Hamilton emphatically asserted in Federalist #78.

There is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”

Thomas Jefferson put it this way. Any law that violates the Constitution “is altogether void, and of no force.”

Nullification isn’t lawlessness. It is a legitimate process to check federal power and to stop what James Madison called “the progress of evil.”

So, maybe it is a little easier for the “weed people” to stand up for their rights because they have “few qualms about skirting the law.” But if that’s why “gun people” seem to be reluctant to push back against the feds and resist unconstitutional gun laws, they need to adjust their thinking. To do so wouldn’t be skirting the law. It wouldn’t be demonstrating disdain for the law. It would be preserving the law – the highest law – the Constitution.

 

 

 

 

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