Texas, Wyoming, guns and armed insurrection

I’m starting to wonder if the overreaction by gun regulation opponents to calls for common sense regulation aren’t doing more damage to their cause than anything else out there.

Word came out this past week that Wyoming was considering legislation declaring assault weapons to be legal within its borders and empowering local law enforcement to arrest federal agents attempting to enforce a potential assault weapons ban passed by Congress. Steve Toth, a state Representative in Texas, apparently inspired by Wyoming, announced yesterday that he was going introduce similar legislation in his home state aimed at thwarting a potential assault weapons ban via executive order from President Obama.

Yes, folks, we literally have people trying to pass laws to combat things that are completely in their imaginations. But I digress.

A state law that purposefully contradicts a federal law is called nullification. Some southern states tried to use nullification to keep their schools segregated in the ’50s. The Supreme Court has consistently rejected nullification based on the Constitution’s supremacy clause, which says that the Constitution and federal law are the supreme law of the land. This just happened with parts of Arizona’s SB-1070 in 2012.

The troubling aspect of these proposals isn’t nullification. The courts will quickly and unanimously dispense with that. It’s the provisions that would empower the state to arrest federal agents who are simply enforcing a federal law. The Supreme Court ruled in 1980 that federal agents, like Congressmen, judges, and the President, are immune from state prosecution while performing their official duties under the supremacy clause, so long as they are acting reasonably and without malice. The Roberts court even extended that immunity to federal contractors in a unanimous ruling last year. This is well settled case law.

When a state crosses the line from defying federal law to arresting federal agents that are enforcing federal law, what you’ve got is armed insurrection, de facto secession, and treason.

One would hope that if Texas or Wyoming goes ahead with its law, and a federal assault weapons ban becomes law, that the federal government would do the responsible thing (if the states won’t) and hold off on enforcing the ban in those states until the Department of Justice can get those state laws struck down, as they surely would be. But if that doesn’t happen, then under no circumstances do the states have the right to arrest federal agents acting in the line of duty.

The most likely and least harmful (to our democracy) response to that crisis would be for the state in question to cave under pressure, and release its unlawful prisoners. But the choices become progressively darker from there. The Department of Justice could ask a federal court to order the prisoners released, and it would, but how likely is it that a state ignoring federal law and arresting federal officials is going to obey a federal court order? That leaves the only appropriate response to armed insurrection and secession, which is a declaration of martial law and a military strike to free the prisoners.

If that all sounds insane, that’s because it is. Arresting federal agents for enforcing federal law, no matter what you think of the federal law, is insurrection, and you can’t tolerate insurrection. You just can’t. Even a President Santorum or Perry would be forced to act in order to maintain order amongst the states. Because if they didn’t, the very next thing that would happen is states arresting EPA inspectors, IRS agents, or any federal official they don’t want enforcing federal laws that they don’t like. It would be a de facto end to the union.

The sane thing for Wyoming and Texas to do would be to wait for a federal assault weapons ban to become law, and then challenge it in court where they have at least a 50/50 chance of winning. If they win, then the problem solved peacefully and according to our justice system. If they lose, then they know they were wrong, and just have to suck it up. But they would have no chance of winning a fight over nullification, and certainly wouldn’t win an armed standoff with the United States while holding what amounts to hostages.

My guess is that the Wyoming GOP never introduces its proposed legislation and that Toth’s bill doesn’t pass in Texas. Hopefully that’s the end of this stupidity.

Paul Tenny

Paul Tenny

I'm not a journalist but I do it anyway. I cover elections and have interviewed television writers and producers.
Paul Tenny

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