by Justin Hinckley
LPNC 2nd Amendment Liaison Coordinator

Nullification is an oft-discussed topic amongst Libertarians. The idea a citizenry or smaller government body can declare a larger government body's laws null and void is an appealing one to us. Nullification is a term used often in reference to attempts to undermine or sabotage the enforcement of federal regulations and laws. To better understand the broad topic of nullification, let us look at some recent examples.

In the early 2000s, a new term became common in the news vernacular, "sanctuary cities." Though the movement has its roots in the 1980s, much of the activity for which the sanctuary movement is known occurred in the 2010s. These were cities which, by their own city council or mayoral actions, declared their cities as sanctuaries for illegal immigrants. Most commonly this took the form of prohibiting local police and government offices from detaining people for or questioning them about their immigration status. It also often includes prohibitions on cooperation with federal immigration authorities.

Today, there are estimated to be over 500 cities, counties, and states that have declared themselves sanctuaries in the US. Covering a similar time frame and gaining momentum over the last decade is the nullification of drug laws in US states. While many drugs remain illegal at the federal level, an increasing number of states are declaring medicinal and recreational use of a variety of substances to be legal.

Now let’s examine what characteristics generally encompass successful nullification campaigns. Nullification campaigns often involve two different strategies. The first strategy is to change the governmental perspective of the given topic in a legal or official sense. This would be through legalization or a change in policy that results in a different approach to the topic by the government in question. The second strategy is to refuse to assist federal authorities in the enforcement of their own laws and regulations. This occurs through prohibitions on cooperation with federal agencies or through the restriction of funding or resources directed at local/federal cooperation programs.

I feel the need to pause and praise both the sanctuary and drug legalization movements for their success in expanding their ideas both officially through government actions and socially through the growth of public support for such ideas. It is indisputable that more people use drugs legally (at the state level) in the US than were doing so before the drug nullification movement took hold. It is likewise indisputable that there are more places for illegal immigrants to live without fear of pursuit by local government entities than before that movement took hold.

Finally, we come to the guns. Success surrounding nullification of federal and state gun laws has almost exclusively occurred in the courts. We have also seen numerous victories in state legislatures with regards to gun laws, beyond nullification drives. The multiple resounding victories in these avenues does not excuse the firearms community from its lack of significant victories in the nullification space. This is not through a lack of effort, but a lack of effect.

In fact, during the same period of the sanctuary city and drug law nullification movements in the 2010s, a "firearms freedom" movement was building. This movement led to nine states passing firearm freedom legislation, essentially declaring federal gun laws irrelevant to firearms and accessories built within each respective state, due to them not being subjected to the Interstate Commerce Clause. These gun laws were quickly struck down in federal courts, as the courts have a long history of abusing the Interstate Commerce Clause to ensure federal power over all manner of things not mentioned in the Constitution.

Some firearms freedom acts remain in effect but have little to no consequence when it comes to protecting or expanding gun rights. But momentum is building again. Recently, we have seen a flurry of activity in the space of gun law nullification. The revival was in part due to the declaration of sanctuary counties and states for the 2nd amendment. These laws, to date, have proven entirely symbolic and do not seem to influence federal enforcement of gun laws throughout the US. Part of the reason for this is many of these laws and resolutions have no funding mechanisms, do not provide penalties for government officials violating the acts, and do not grant protections to citizens who may be arrested or prosecuted by higher levels of government.

Nonetheless, these gestures have generated fervor in the firearms community, now creating approximately a dozen states with sanctuary laws (depending on how "sanctuary law" is defined) and over 70 counties in NC which have declared themselves sanctuary counties. Here is where it gets interesting, as firearms nullification could be gaining traction to stifle authoritarian gun legislation in a real way. Illinois passed an inaccurately titled "assault weapons ban" and almost immediately 80 Illinois sheriffs declared they would not be enforcing any of the provisions of the legislation. For context, there are 102 counties in Illinois. As of this writing, no significant actions have been taken in Illinois to indicate the commitment of the sheriffs, but a majority of sheriffs opposing new gun regulations is a promising development for sure.

It is unclear if this new gun law nullification movement will amount to any significant progress in expanding gun rights in the US. If we are to learn anything from the immigration or drug activists, it is that nullification can be used to great effect when done correctly. We in the gun community must continue to find creative ways to employ nullification to forward the cause of liberty in relation to the right to self-preservation. Litigation is certainly the strongest tool in the gun rights arsenal, but nullification offers a path to increased public support and a bulwark against federal overreach. As we continue down this path, I would encourage each of us to consider the tools needed to employ effective nullification strategies and support or implement sound nullification legislation and regulations at every opportunity.