Some States Say No to Obama Gun Proposals, Is it Constitutional?


However the prospect of court cases instead of just legislation, as you saw with the Affordable Care Act, is something Ruger thinks is likely with these lawmakers claiming, as they already have, that the president is violating the Second Amendment.

"The point is, this is a multi-pronged political and legal strategy," Ruger said. "Someone will surely raise the Second Amendment objection to this and the courts will hear the case."

Ruger says he think it's likely the NRA could file a suit citing the Second Amendment, but because the amendment contains the words "well regulated militia," he believes the federal government will be victorious.

He says the difference between a state or group challenging a federal law or the president's executive order compared with states' or sheriffs' threatening to throw federal agents enforcing a federal law in jail is the difference between a "legitimate case" and a "frivolous" one that would get "bounced out of court in a second."

Mark Kamin, the director of the Constitutional Rights and Remedies Program at the University of Denver Law School, agrees with his colleagues, but notes the 1997 Printz v. U.S. decision in which the Supreme Court found that Congress could not force local police officers to work on their behalf. In the Printz case, which examined an interim provision of the Brady Act , the high court ruled that local police officers couldn't mandate federal background checks of customers buying firearms.

But, Kamin says while Printz may say "local officials won't assist," it is a "fantastically different situation … to have them obstruct federal law."

"What's clear in the gun context, if there is a valid federal law, the federal government can enforce it in any state. What it cannot do is force state officers to enforce federal law," Kamin said. "Some have gone further, saying they would prevent federal officials from enforcing federal law and that is patently unconstitutional."

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