MSNBC's Sage Advice on the Second Amendment

By Michael Boldin
Sometimes it's important to pay attention to what the people on MSNBC say, because it can actually give us insight on just what we should do for liberty.  That's the case with "Pointless Nullification in Kansas," a blog post by Rachel Maddow Show producer Steve Benen.  Surprising as it may sound, conservatives interested in preserving the Second Amendment can look to Benen for all the advice they need.

Backstory

Earlier this week, Kansas Governor Sam Brownback signed into law the "Second Amendment Protection Act," a bill that reasserts the state's role in protecting the right to keep and bear arms of those living there.  The bill reads, in part:

Any act, law, treaty, order, rule or regulation of the government of the United States which violates the second amendment to the constitution of the United States is null, void and unenforceable in the state of Kansas.

In conjunction with the above clause, the bill defines what is meant by "the Second Amendment to the Constitution of the United States" and contends that it isn't based off a decision by the Supreme Court.

The second amendment to the constitution of the United States reserves to the people, individually, the right to keep and bear arms as that right was understood at the time that Kansas was admitted to statehood in 1861, and the guaranty of that right is a matter of contract between the state and people of Kansas and the United States as of the time that the compact with the United States was agreed upon and adopted by Kansas in 1859 and the United States in 1861.

By definition, state and local agents cannot enforce any acts or actions that are "null, void and unenforceable in the state of Kansas."  Based off this text, the state of Kansas now cannot participate in any federal gun control measures that restrict the individual right to keep and bear arms as understood when Kansas became a state in 1861.  

In Steve's blog "report" on the issue, he quoted me as saying that this bill is "potentially the most important state level bill passed in modern American history."

He didn't take too kindly to that opinion, though, and spent some time talking about my "hyperbole" and the "cause for alarm" over the fact that Brownback signed this bill into law.

In fact, Steve spent quite a bit of time explaining how such an act is a waste of time.  He even said the law doesn't make "any sense at all."

SENSE

So here's some sense for our propagandist.  According to Steve, the courts, and the courts alone, determine what the Constitution actually means.  But that flies in the face of what James Madison had to say.  You know Madison -- the guy referred to as the "Father of the Constitution."  In his own words:

The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.

In Federalist #46, Madison also told us how to deal with things that the States determined were unconstitutional.  He wrote:

Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.

Steve Benen's Constitution: The states have no role in determining what's constitutional.  If they don't like a federal law, they can "challenge the law in the courts."  In other words, they should ask a branch of the federal government to limit the power of the federal government.

James Madison's Constitution: The states have "no tribunal above their authority" to determine when the Constitution has been violated.  That includes the "supreme court" tribunal.  And when states determine that the Constitution has been violated, they should use "legislative devices" to create "very serious impediments" and even pass a "refusal to cooperate."

In fact, that's just what Brownback signed into law.  The Kansas Second Amendment Protection Act follows Madison's advice.  It's a state legislative device which not only codifies into state law that virtually any and every federal "act, law, treaty, order, rule or regulation" regarding your right to keep and bear arms is unconstitutional, but also bans such edicts' enforcement by referring to them as "unenforceable."

ADVICE

Steve spent time and energy, plus the space on Maddow's MSNBC website, to convince you that the Kansas law is "pointless."  If it were so pointless, he wouldn't be wasting time on it.  So if you support the Second Amendment, this should serve as a serious call to action.

When Steve, Rachel, or anyone else at MSNBC wants you to stay away from invoking James Madison's advice -- in this case, to protect the right to keep and bear arms -- you should take that as a big green light to double down.

As Judge Andrew Napolitano said recently, widespread noncompliance in the states will make federal gun control laws "nearly impossible to enforce" (video here).

Madison and Judge Nap are good enough for me.  But it's even more important to recognize that we should treat everything from MSNBC as if it's Opposite Day.  When they tell you it's a waste of time, you know it's already having effect.  And you know it's going to work.

So get out there and nullify gun control.  Support the right to keep and bear arms, and convince your state, county, city, or town to pass its own Second Amendment Preservation Act today.

They don't want us doing this.  We're doing it anyway.

Michael Boldin is the executive director of the Tenth Amendment Center.