Interesting Question

Even Nappen ponders whether it’s unlawful for legislators to vote for a “Firearms Freedom Act,” such as the one in New Hampshire with threatens federal officials with jail time and crimes for attempting to enforce federal gun laws.

Generally speaking legislators enjoy some form of legislative immunity, which means they can’t be sued for their actions as legislators. But legislative immunity for criminal matters is typically something defined by the Constitution, and in no case that I know of is such immunity unlimited. There’s certainly nothing in the federal constitution that immunizes state legislators from being subject to federal laws.

There is no doubt that a law criminalizing the interference of federal officials in the execution of their lawful duties is among Congress’ enumerated powers, because it is a “necessary and proper” exercise of their power to make and enforce laws under the authority of the Constitution.

This is an interesting question, and I can’t find anything that says the answer is definitely no, that it is not technically illegal. States do have sovereign immunity, and I would imagine state lawmakers could seek protection under that idea. But I can’t find any case that suggests state lawmakers can’t be criminally liable for passing a law which violates a federal criminal statute. Anyone else know?

18 thoughts on “Interesting Question”

  1. “There is no doubt that a law criminalizing the interference of federal officials in the execution of their lawful duties is among Congress’ enumerated powers, because it is a ‘necessary and proper’ exercise of their power to make and enforce laws under the authority of the Constitution.”

    But are the alleged abuses of the Commerce Clause that these state laws are attempting to address actually legal laws under the “authority of the Constitution”?

    I think that is the real question needing answered.

  2. That’s settled law as far as the courts are concerned, and the answer is yes, it’s a lawful exercise of Congress’ powers.

  3. Some of the answer has been explored in the courts. Lon Horiuchi’s lawyers tried to claim he was immune from state law against manslaughter since he was “just doing his job”. The courts ruled his immunity did not extend that far.

    If the Feds had a law authorizing the FBI to shoot on sight any private citizen in possesion of a firearm wouldn’t the state still be able to charge them with murder or manslaughter?

    If that is the case then where do you draw the line? If state law can forbid them from shooting you on sight then can state law forbid them from arresting you?

    I see both sides clearly at the extremes but it gets fuzzy near the middle…

  4. The matter you’re speaking of is distinct from whether, say, 922(o), banning post-1986 machine guns is an abuse of the commerce power…. that’s settled law.

    The question is, can state legislators claim immunity from criminal prosecution under a federal law that makes it a crime to conspire to interfere with legitimate federal law enforcement.

  5. Other way around, the 9th circuit overturned the district court ruling that he was immune.

  6. You can see what Madison and Jefferson had to say on the subject by reading the Kentucky (nullification) and Virginia (interposition) resolves. Hamilton’s Opinion as to the Constitutionality of a National Bank (I think that’s the title…) hints toward a more broad construction of the Necessary and Proper clause that would seem to support your reading. Jefferson,in the Kentucky resolve, goes as far as to say that the federal government can punish only treason, piracy, counterfeiting, and not a single thing more.

    It was never quite settled then and it never will be.

  7. Oh, and there are examples where federal slave catchers were arrested for kidnapping by state authorities. I think that happened in Mass.

  8. Ohio’s Lorain County also arrested slave catchers — in one case, on their way to testify in a federal criminal trial against the Oberlin Rescuers. This presented an interesting question of whether federal court jurisdiction over witnesses overrode state court jurisdiction on criminal charges. At one point it looked like President Buchanan was going to send regular troops to enforce federal jurisdiction, but calmer heads prevailed.

  9. From what I have read, they are making this a 10th Amendment Issue, insofar as the individual States are claiming that the NFA and related Acts are extra-Constitutional, and they are nullifying that law within their State. The theory, the is supposed to be the agent (employee, if you will) of the united (not capitalized on purpose) States, and that the servant (the is getting uppity.

    We’ll see how it pans out, but with the National Guard subject to being Federalized, and the Troops being indoctrinated to obey the POTUS over the Governor, it won’t work out very well.

  10. Dual sovereignty is pretty well established as a concept, so there’s really no legal basis for these acts. Actually, I wouldn’t really be opposed to a movement like this in response to advancing federal gun control. But that’s mostly because I don’t really have a problem with states saying to hell with federal law under extreme circumstances.

    My main issue with this, honestly, is that they are pulling the trigger too early. This kind of thing would be a useful weapon against federal power, but not right now, at least in this particular political struggle. Health care is a different matter, and I supports the states giving the feds the middle finger in any way they can over that.

  11. I guess it really comes down to, I don’t believe New Hampshire is serious about it. If gun rights were a hot issue because the feds were pushing the limits on it (like they are with Health Care), I would be completely supportive of states saying they’ll arrest federal agents sent to enforce those laws, even though it goes against established federal law.

    But I don’t really believe New Hampshire is serious about it. This isn’t really the kind of thing you mess around with if you’re not serious… because when you _are_ serious, they’ll think you’re full of it.

  12. My two cents: States can order their agents to not co-operate with federal agents; provide no info, &c. They cannot order state agents to take action to interfere with federal agents’ actions.

  13. Well, if townships can thumb their nose at State level pre-emption laws. I am guessing the states can do this for a while until an actual incident occurs.

  14. I don’t understand the point of those parts of HB 536 that were excerpted, especially this:

    “Stopping, restraining, detaining, or otherwise harassing any person for carrying a firearm or self-defense tool or weapon, whether openly or concealed, whether or not such person possesses a license under RSA 159:6;”

    NH still requires a permit to carry concealed (is the legislature addressing THAT?), but this law seems to make it a crime for a federal employee to enforce a state gun law, i.e. concealed carry without a license. Maybe somebody else here understands this better, but it seems to be saying in practical terms that if a TSA agent at an airport or an FBI agent on the street noticed someone carrying a concealed weapon & the person had no permit to do so that the agent could not arrest them, or even detain them until state authorities got there. This is supposed to make us safer? I don’t see it.

    Also, while overturning federal powers under the commerce clause may be a major goal of some conservative activists and intellectuals, I don’t think there’s been a real consideration the negative effects of overturning it might mean for gun owners. For example, if the courts actually did throw out the commerce clause, it seems that would nullify the 2006 Protection of Lawful Commerce in Arms Act that currently prevents states (and cities) from bankrupting gun manufacturers through frivolous “product liability” lawsuits; that is, from suing gun manufacturers for making guns that function properly even after falling into the hands of criminals. In practical terms, it seems to me that flushing the protections manufacturers currently have against such suits would do a lot more to limit access to firearms–once the manufacturers were bankrupted by lawsuits and no longer making guns–than either of these NH bills would do to protect access. Without the commerce clause, federal protections would disappear along with federal regulations.

  15. NUGUN,

    Statewide preemption is not the same thing as vertical checks and balances between the states and the feds.

    Local governments are subordinate to their respective states. The federal government was actually created by a league of states and all of its powers were delegated to it by those states.

    On the subject of verical checks and balances, there is no better place to start than by reading Joseph Story’s Commentaries and following it up with Abel P. Upshur’s Inquiry. Upshur wins that debate, in my opinion.

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