Question from reporter by email: Hi, I’m a reporter with the Huffington Post and I wanted to get your thoughts on the Montana bill that recently passed the House that seeks to nullify a potential gun ban, as well as similar bills in other states you are tracking. I wanted to get your sense on how many of these bills are out there, and some context on whether this is anything new or part of an existing nullification movement.

My response: There are more than a dozen states considering legislation similar to Montana’s HB203 in 2015, taking action to withdraw state enforcement and support from new federal gun restrictions.

We see these efforts as part of a much wider movement, one in which states legalizing marijuana have exposed a glaring weakness in the federal government.  That is, when a significant number of states take positions contrary to federal policy, it becomes exceedingly difficult for the federal government to enforce their laws.

While the current administration has started to back off on marijuana enforcement in states that are legalizing for various purposes, the cause and effect indicate that this is only happening because they simply don’t have the manpower to do otherwise. By 2013, the administration engaged in 270 raids, more than both Bush and Clinton combined – so they’re simply losing the battle, and some people are working to put the same concept into practice.

Also important to note, the Montana bill – like most of the others introduced in the country and the marijuana legalization efforts – are not a John Calhoun-style of nullification. These efforts are about using the SCOTUS-backed “anti-commandeering doctrine” to withdraw resources on the state level from helping in federal enforcement.  We’d say this is “nullification in practice and effect” because, the feds rarely have the manpower to handle enforcement without state participation or assistance.

On the other hand, Calhoun’s proposal, rejected by even James Madison himself, held that a state could simply say a federal act was unconstitutional and the rest of the country would have to recognize it. South Carolina also proposed using force to stop federal agents from carrying out their acts. The Montana effort is doing none of the same.

Michael Boldin

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