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

Jan. 18, 2013— -- Even before President Barack Obama laid out his gun control proposals Wednesday, calling on Congress to act as well as signing executive orders, several states responded by saying they would try to block the enforcement of any measures.

From the Mississippi governor to lawmakers in Texas, Missouri and Wyoming, even local sheriffs in Oregon and Kentucky, many of those who oppose the president's proposal believe it is within their legal right to not only refuse to enforce federal legislation, but to make it a crime for a federal agent to try and enforce the law in their states.

But, is that approach constitutional?

Theodore Ruger, a constitutional law professor at the University of Pennsylvania Law School, says no. The Supremacy Clause, which is part of the Constitution, ensures that.

"These state statutes are outrageously unenforceable," Ruger said. "They have no grounds and there has not been any grounds for 200 years for a state to criminalize the enforcement of a valid federal law."

Ruger explains that the Supremacy Clause of the Constitution says that "federal laws and treaties are the supreme law of the land and that has been interpreted to mean in case there is any conflict when Congress or the president speaks clearly and with valid authority on a topic, states cannot thwart the application of the law within its borders."

Greg Magarian, a constitutional law professor from Washington University Law School, in St. Louis, agrees, saying, "If a state tries to legislate or take action contrary to federal law, the state is in violation of the Constitution and the Supremacy Clause."

Ruger also believes the states are making these moves not because they don't know what the law is, but simply to grandstand.

"These states all know this, so we can only see this as pure political rhetoric," Ruger said. "These states are savvy enough to know that they will not be able to enforce their state laws, so they are trying to make a rhetorical point as opposed to creating a valid law."

Magarian calls it "pure political theater."

"Conservative state officials all over the country want to make a show of not being oppressed by what they are portraying as a tyrannical federal government, and I think of it as, frankly, hyperbole," Magarian said.

It's more about not liking the president than anything else, he added.

Ruger says there are moves states can make "in the area of gun control policy that might differ from federal law," but it's important to note that none of these laws have been passed yet by Congress.

But Ruger says the states "certainly can't enforce their own laws to throw federal officials in jail," something Rep. Steve Toth in Texas, among others, is calling for.

Toth represents the Woodlands district close to Houston and he is still drafting the legislation, according to his office. But it did release a statement describing the bill as making "any federal law banning semi-automatic firearms or limiting the size of gun magazines unenforceable within the state's boundaries" and most notably "anyone trying to enforce a federal gun ban could face felony charges under the proposal."

Ruger said legislation like Toth's is "pure rhetoric and no state official is dumb enough to try and enforce this."

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."