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August 29, 2013 1:04 PM Will Constitutional Conservatives Defy the Constitution?

By Ed Kilgore

In the last few years we’ve gotten used to a renaissance in secessionist and nullification rhetoric on the Right. But there is nothing quite like the current saga in Missouri, where the Republican-controlled state legislature may be on the brink of overriding a (Democratic) gubernatorial veto of legislation that not only purports to nullify federal gun laws but to make their enforcement a criminal offense.

The New York Times’ John Schwartz notes that the sponsors of this legislation make no bones about its radical intent:

Unless a handful of wavering Democrats change their minds, the Republican-controlled Missouri legislature is expected to enact a statute next month nullifying all federal gun laws in the state and making it a crime for federal agents to enforce them here. A Missourian arrested under federal firearm statutes would even be able to sue the arresting officer.
The law amounts to the most far-reaching states’ rights endeavor in the country, the far edge of a growing movement known as “nullification” in which a state defies federal power.
The Missouri Republican Party thinks linking guns to nullification works well, said Matt Wills, the party’s director of communications, thanks in part to the push by President Obama for tougher gun laws. “It’s probably one of the best states’ rights issues that the country’s got going right now,” he said.

Clearly, John C. Calhoun was just a bit ahead of his time.

It’s all too much even for many gun rights advocates (the NRA has not taken a position on the bill), and for at least one lonely Missouri Republican:

The lone Republican opponent of the bill in the House, State Representative Jay Barnes, said, “Our Constitution is not some cheap Chinese buffet where we get to pick the parts we like and ignore the rest.” He added, “Two centuries of constitutional jurisprudence shows that this bill is plainly unconstitutional, and I’m not going to violate my oath of office.”

It’s a good time to remind ourselves that picking and choosing among constitutional provisions is one of the hallmarks of latter-day “constitutional conservatism.” Some treat the Second Amendment as a sort of Super-Amendent that trumps all other provisions because it offers a right of armed insurrection essential to protect every liberty. Others are devoted only to their understanding of the “original” Constitution designed as a permanent governing arrangement by the Founders as inspired by God Almighty (though they have some trouble with the slavery stuff). But the Supremacy Clause is tough for them to overcome. Here’s one circular-reasoning effort from a libertarian blogger:

[D]espite some conservative protests, nullification is justified and is even seen by some as a tool to reject looming tyranny in the 21st century. Contrary to what Governor Nixon claims, the Missouri nullification bill does not violate the Supremacy Clause since the former is meant to protect a constitutional right violated by the federal government, namely the Second Amendment. The Supremacy Clause is usually applied in pursuance of the Constitution, for example if Missouri tried to re-enact slavery or ban women suffrage.

Oh brother. When you are a hammer, everything’s a nail, but it won’t do much for the reputation of constitutional conservatives if they ride this crazy train to the Sea of Madness, where the furies howl.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.

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