Property Rights

Utah City Considers Nullification of Federal Gun Control

Last night, the Highland, Utah city council considered passage of an ordinance which would nullify federal and local gun control laws. “As elected leaders,” said the sponsor, councilman Tom Butler, in his opening remarks, “we can either stand with the free citizens of Highland and protect their God given rights to self preservation, self defense and all other rights as enshrined in the Declaration of Independence and the Constitution, against all enemies, foreign or domestic, or we will be abdicating our duty, our responsibility and yes our oath—to ourselves, to God and to the people whom we represent.” Struggling to contain his emotion, Butler called for support from his fellow council members: “God help us to stand up for the Constitution.”

The council voted against the ordinance 3-2. Its opponents expressed support for the right to keep and bear arms, saying that despite their agreement with the ideas contained within the ordinance, they did not believe the city had the authority to push back against federal law.

The ordinance declared that “all federal or local acts, laws, orders, rules, regulations – past, present or future – which shall be in violation of the 2nd Amendment to the Constitution of the United States and the Constitution of Utah are not authorized… and are hereby declared to be invalid within Highland City and all of its boundaries within the state of Utah, shall not be recognized by this city, are specifically rejected by this city, and shall be considered null and void and of no effect in this city and all of its boundaries.”

Prior to discussion of the ordinance, the council also considered a resolution on the same subject. This declaration of the council’s position, which passed unanimously, affirms that “the right to keep and bear arms is a fundamental right to a free society” which “must be vigorously protected by the State of Utah and its elected representatives.” The resolution promises that the city will, “within its lawful powers” take “any and all action necessary to protect and defend its citizens’ Second Amendment right to keep and bear arms.”

An amendment to the resolution, which also passed unanimously, calls upon the Governor and legislature of the state of Utah “to immediately pass a bill to nullify the implementation within the state of Utah any federal law, executive order, or regulation restricting the right to keep and bear arms.”

A bill introduced into the legislature would fulfill that exact desire. The “Second Amendment Preservation Act,” sponsored by Representative Brian Greene, “provides that any federal action that attempts to impose limitations on firearms contrary to the Second Amendment of the Constitution of the United States, or the Constitution or laws of the State of Utah, is unenforceable in this state.”

This bill, HB114, introduces penalties for any officer or employee within state or its political subdivisions who “attempts to enforce any law, order, rule, or regulation of the federal government upon a personal firearm, a firearm accessory, or ammunition” by making such an attempt a third degree felony. The bill also grants immunity to such officers and employees from prosecution by the federal government for their refusal to enforce any federal law, order, rule, or regulation that contradicts the bill’s nullifying provisions.

Greene’s proposed law carries a lengthy legislative note in which the lawyer assigned to the bill argues that the bill does not pass constitutional muster. “There is a high probability that a court will find that this bill violates the Supremacy and Commerce Clauses to the extent that it conflicts with current federal regulation of firearms and establishes a criminal penalty for federal government agents who attempt to enforce federal law.”

Interestingly, the note’s discussion of the Supremacy Clause, and its application to this bill, omits a highly relevant portion of that clause that suggests that the bill can in fact succeed. The note’s citation of this clause reads: “This Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land…” The actual clause reads: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land…” The clause itself notes that only federal laws which are consistent with the Constitution can invalidate a conflicting state law—and that’s the entire point of Greene’s bill. For more on the Supremacy Clause and its common misinterpretation (including in this case), see here.

The reference to the Commerce Clause relies upon a Supreme Court case, Wickard v. Filburn, which radically reinterpreted this portion of the Constitution during FDR’s administration to justify a massive government expansion of power and control. The court’s opinion enabled the federal government to micromanage the economic behavior of individuals whose actions might directly or even indirectly affect the economy at large. For more on this clause and its common misinterpretation (including in this case), see here.

“I lived for five years in Mexico, a country with very restrictive gun laws,” Butler said. “I could not have a gun. But the bad guys still had them. I was kidnapped in 1999 and was held hostage for over 40 hours. I know what it’s like to be tied up and kneel down in subjection. I wouldn’t wish that on anyone. But I will not kneel down again.”

Though his sponsored ordinance did not pass last night, Councilman Butler may yet get his chance to see individuals in his city, and Utahns at large, protected by law from a federal encroachment of the individual right to own guns. HB114 will likely be heard in committee early next week.