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Nullification Redeux: Who Gets to Decide What's Constitutional?

by Michael Austin, published


“Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”   District of Columbia v. Heller, 2008 (decision by Justice A. Scalia)

When I wrote yesterday about nullification and the Supremacy Clause, I expected, correctly, that I would be met with the obvious rejoinder: that the Supremacy Clause only declares federal law to be supreme when it is “made in pursuance of” the Constitution itself. Unconstitutional laws are not Constitutional. This is absolutely correct, but it does not follow that states can therefore nullify a federal law on the grounds of its unconstitutionality. The reason is simple: the Constitution does not give states, and especially state legislatures, the right to determine what is and what is not constitutional.

Article III of the Constitution clearly vests “judicial power” in the Supreme Court and in the judicial branch of government. And though Article III does not enumerate the specific powers of the judicial branch, the 18th century understanding of “judicial power” just as clearly included the power to determine the constitutionality, and the unconstitutionality, of legislative acts. Alexander Hamilton makes this clear in Federalist #78, and supporters and opponents of the Constitution alike acknowledged this in both the Federal Convention debates and the state ratifying conventions. When there is doubt over the meaning of the Constitution, the Supreme Court has both the right and the responsibility to exercise their constitutionally mandated judicial power.

Nullification by state legislatures, then, violates the separation of powers doctrine in two different directions: it takes for the state a power constitutionally reserved for the federal government (the power of determining the constitutionality of a law), and it subordinates the judiciary to the legislative branch of government in the exercise of the core judicial function.

And when it comes to guns, the judicial branch of government has had quite a bit to say lately. Two fairly recent Supreme Court decisions –DC v. Heller (2008) and McDonald v. Chicago (2010)—have established for the first time in history that gun ownership is an individual right that is not connected to service in a state or federal militia. These decisions are huge victories for gun rights, as they essentially constitutionalize a late-20th century pro-gun interpretation of the Constitution that legal scholars have long believed to be alien to the eighteenth-century experience.

But these rulings don’t come anywhere near establishing the sort of absolute interpretation of the Second Amendment that was recently asserted by the Kansas and Missouri legislatures and by many of the Senators who voted to filibuster the Manchin-Toomey background-check legislation.  Much to the contrary, Justice Scalia (who is not actually anybody’s idea of a liberal judicial activist) goes out of his way in the Heller decision to say that gun ownership—like the freedoms of religion, speech, assembly and the press—is NOT absolute and must be balanced with other rights and legislative prerogatives with which it may conflict. And the decision expressly permits the regulation of:

  •  Concealed weapons
  • Possession of guns by felons and the mentally ill (and, presumably, some mechanism of establishing whether or not somebody is a felon or mentally ill before he or she is allowed to buy gun, without which the prohibition would be meaningless).
  • The carrying of firearms into schools and government buildings
  • Conditions on the commercial sale of arms
  • “Dangerous and unusual” weapons

Most people I know on the left don’t like the fact that the Court has issued a very strong endorsement of an individual’s right to own firearms. Most people I know on the right don’t like the fact that the Court has left the door open for a lot of different limitations on that right as jurisdictions seek to balance it with other the other rights, protections, and immunities of citizenship. Neither, however, gets to substitute its wisdom through legislative fiat. The Constitution is quite clear about who has the final say in it’s interpretation.

The rule of law requires that there be one consistent interpretation of the supreme law of the land. The separation of powers doctrine requires that the power to judge not be vested in the same hands as the power to legislate. The federal judiciary, culminating in the Supreme Court, is the only institution that can meet both requirements, which is why the Constitution specifically invests it with the judicial power. In the words of the late Supreme Court Justice Robert Jackson, the Court is not last because it is right; it is right because it is last.

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