Editor’s Note: John J. Donohue is C. Wendell and Edith M. Carlsmith professor of law at Stanford Law School and research associate at the National Bureau of Economic Research.
A controversial gun measure in Missouri failed to override veto by one vote
John Donohue: The measure's claim that a state can nullify federal law is absurd
He says in states like Colorado and Iowa, gun rights advocates are gaining ground
Donohue: Gun owners must be more responsible to not be duped by NRA deceptions
Just when one might have thought that lunacy over gun policy in the U.S. cannot be exceeded, think again.
In the wake of the Newtown massacre, Colorado adopted a universal background check system and a modest restriction on the size of high-capacity magazines. This was good news for everyone except gun sellers who don’t want the sales to felons and the insane to dry up (and those who think what for most purchasers would be a five-minute background check is too much of an imposition).
Since gun sellers call the shots at the NRA, the lobbying group launched an effort to punish Colorado legislators who stood up for public safety over gun seller profits. Now, two thoughtful Colorado legislators have been recalled and the NRA is crowing at having exercised its muscle once again.
Other states are trying to up the ante. Only last week, Iowa highlighted the nonsense by offering concealed carry permits to blind individuals.
This week in Missouri, by the thinnest of margins – only 1 vote in the state Senate – the legislature failed in its effort to make that state a haven for gun toting felons and lunatics by overriding the governor’s veto of a bill designed to thwart any form of federal gun regulation, including background checks, and even trying to make it a crime for federal agents to enforce these laws.
The claim that the state can unilaterally decide to nullify federal law is so preposterous that even the strongest of gun advocates with some understanding of Supreme Court precedent acknowledge its invalidity.
Indeed, Robert Levy, who personally funded the litigation designed to convince the Supreme Court that the Second Amendment, which begins “A well-regulated militia being necessary to the security of a free state,” had nothing to do with a well-regulated militia has recently conceded that the Missouri stunt flouts the very Constitution that its supporters claim to uphold.
Even Levy’s concessions fall on deaf ears in the legislatures of Kansas and Montana, where the idea of state nullification of federal gun laws seems eminently reasonable – despite the clear language of the Supremacy Clause of the United States Constitution, which states, the “Constitution and the Laws of the United States … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”
While Iowa is merely highlighting the absurd laxity of gun laws in this country, the damage will be slight since most blind Iowans will have the good sense not to possess or discharge firearms. But the overheated rhetoric flowing from the NRA crowd during the Colorado recall and from Missouri (and similarly inclined states) is dangerous for at least two reasons.
First, it undermines our democracy when voters act based on false and misleading views about the actual content of state and federal laws. Second, similar hyperbolic rhetoric after the passage of the federal background check system and the (now elapsed) federal assault weapons ban galvanized the unstable gun zealot Timothy McVeigh forward with his scheme to blow up the federal building in Oklahoma City.
The NRA can succeed in its efforts to punish legislators who stand up for positions its own president once specifically advocated and push for clearly unconstitutional laws by recklessly fooling voters into believing that federal gun laws are tyrannical. In fact, federal gun restrictions are so lax that the U.S. overwhelmingly dominates the world in the number of guns held by private citizens – and also among rich countries in its rate of gun deaths from murder, suicide, and accidents.
Just the other day, a child killed herself with her father’s gun while camping in Yellowstone National Park. Law-abiding citizens with guns have to recognize their obligations to prevent the types of tragedies that occur on a daily basis in the U.S. when lawfully owned guns are used, intentionally or inadvertently, to kill and maim others.
One needs to accommodate the interests of legitimate gun owners if sensible gun laws are to be passed, but gun owners must also take responsibility – first, by not being duped by NRA deceptions to advance the economic interests of gun merchants, and second, by taking every effort to ensure that their guns do not contribute to the mayhem.
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The opinions expressed in this commentary are solely those of John J. Donohue.