Legalization conflicts and reliance defenses.

• Author: Fan, Mary D.
• Position: I. Rebellion Decriminalization and Reliance Dilemmas B. Three Contemporary Reliance Dilemmas 2. State Firearms Nullification Laws through Conclusion, with footnotes, p. 932-958

2. State Firearms Nullification Laws

   Firearms regulation is another area rife with culture wars over regulation and a flowering of rebellious state legislation. (169) The federal response to such state firearms regulation offers an informative contrast to the acquiescence and even receptivity toward marijuana regulation.

   The rugged American romance with the right to bear arms is so strong that the right is enshrined in the U.S. Constitution. (170) Whether the Second Amendment was meant to preserve an individual's right to bear arms or whether the right is tied to militia service is heavily debated. (171) Though vigorously divided on the issue, the Supreme Court ruled in District of Columbia v. Heller that the right to bear arms is an individual one and handgun ownership may not be wholly banned. (172) But the right to bear arms is not absolute. Some regulation is permissible in the interest of preventing firearms violence. (173) Attempts at firearms restrictions, however, face fierce backlash as the nation witnessed most recently during firearms regulation reform efforts after the Sandy Hook school shootings. (174)

   The freedom to bear arms has a particular mystique for regions and groups with a strong, rugged, and individualist culture. (175) Opponents of gun control tend to prize individual self-sufficiency and generally oppose governmental control--especially centralized governmental control. (176) Attempts at federal firearms legislation therefore rouse particular ire. (177) Federal firearms legislation has been hard-won. (178) The most recently enacted major federal firearms legislation that still remains on the books today are the 1993 Brady Bill, which provides for background checks on gun purchasers, (179) and the 1996 Lautenberg Amendment, which prohibits domestic abusers convicted of misdemeanors from possessing firearms. (180)

   Especially when it comes to firearms regulation, federal action has sparked powerful reactions. For example, the backlash against the Brady Bill led to an intense and successful campaign to punish legislators who voted in favor, shifting the balance of power between the parties in Congress. (181) In recent decades, because of the sharp cultural cleavages over whether and how to limit firearms availability, individual states have taken the lead in experimenting with firearms restrictions. (182) Creating sufficient cultural consensus for legislation is more attainable at the regional level than at the fractured national level. Of course, such cultural views at the state level are not just limited to regulating guns and ratcheting up standards from the federal baseline. States are also challenging federal firearms regulations through competing state laws.

   The state legal rebellion was sparked by fear of more firearms regulation and taxes after President Barack Obama was inaugurated in January 2009. (183) Since then, at least nine states have enacted laws aimed at nullifying federal firearms regulation. (184) Similar "Firearms Freedom Act" legislation has been introduced in twenty-six more states. (185) One state even prescribes criminal penalties for anyone who tries to enforce federal firearms laws in the state. (186) Legislation passed in Missouri that was later vetoed by the governor would not only make it a crime for federal agents to try to enforce federal gun laws in Missouri--but it also criminalized publishing the names of gun owners. (187) In all, state legislators have reportedly proposed more than 200 laws aiming to nullify federal firearms laws. (188)

   Many of the laws are modeled on the Montana Firearms Freedom Act, the brainchild of firearms rights advocate and shooting range equipment manufacturer Gary Marbut. (189) Generally, the laws declare that firearms or ammunition manufactured within the state and remaining within state borders are not subject to federal regulation. (190) The theory is that such firearms and parts are out of the reach of federal power to regulate under the Commerce Clause. (191) The laws seek to suspend federal firearms registration and other regulations within state borders. (192) The laws, if followed, would flout requirements that firearms dealers be federally licensed and run background checks on unlicensed buyers. (193)

   The Obama administration's response to the challenge to federal firearms regulation was markedly different to the hospitality shown to state marijuana legalization laws. After the passage of Firearms Freedom Laws in the various states, the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) distributed "Open Letter[s]" to all firearms licensees within each state. (194) The ATF letters warned that the state law "conflicts with Federal firearms laws and regulations" and that "Federal law supersedes the [state Firearms] Act." (195) Dealers were instructed to continue to follow federal law. (196) ATF agents also specifically warned Marbut, who was seeking to manufacture firearms free of federal regulation, that violations of federal law "could lead to ... potential criminal prosecution." (197)

   In response, Marbut, joined by the Montana Shooting Sports Association and the Second Amendment Foundation, sued Attorney General Eric Holder for declaratory judgment and injunctive relief. (198) The showdown in federal court rendered Montana's experiment with nullifying federal firearms law short-lived. Just a year after the Montana law was enacted, a district court judge ruled that the federal government's Commerce Clause authority extended to firearms regulation--even if the product did not cross state lines. (199) The Ninth Circuit affirmed the conclusion that Congress can validly regulate firearms, even within the borders of a single state, and thus held that the Montana Firearms Freedom Act was preempted by federal law. (200) Unlike in the recreational marijuana legalization context, the federal government's firm response to the rebellious state laws led to timely clarification and invalidation of the decriminalization conflict before reliance could develop. As will be discussed in Part II, this contrast has important ramifications for the availability of a reliance defense.

3. Deferred Action for Early Childhood Arrivals and Parents of U.S. Citizens or Permanent Residents

   Immigration is a third area rife with clashing worldviews and rebellion from an unlikely suspect--the President of the United States. (201) A particularly divisive issue in immigration reform is whether to provide paths to legalization for undocumented immigrants--also termed amnesty.(202) An estimated 11 million undocumented people in the United States could potentially benefit. (203) The legalization/amnesty debate has sparked fights with opponents and proponents arguing in different moral registers. (204)

   Opponents are concerned with rewarding lawbreakers who jump the lines and flout the laws necessary to defend the nation and its limited resources against being overrun. (205) Proponents argue there is a need to address the plight of a large underclass of undocumented people living in the United States with stunted prospects and dreams. (206) Political controversy stymied attempts at immigration reform in 2005, (207) 2006, (208) 2007, (209) 2010, (210) and is threatening to derail the latest attempt begun in 2013. (211)

   One of the bills that died in Congress, popularly known as the DREAM Act, attempted to put a child's hopeful face on the legalization/amnesty debate. A revival in 2009 of earlier legislation that had stalled, the DREAM Act focused on longtime residents of the United States who arrived as children before age sixteen. (212) Under the proposed legislation, aliens under the age of thirty-five who have continuously resided in the United States for at least five years, shown "good moral character," and completed high school, gotten a GED, or enrolled in college or the military can apply for conditional permanent residency status. (213)

   The legislation was re-introduced again in 2010 with tighter restrictions. Some of the revised eligibility requirements included a lower maximum age cap of twenty-nine, a requirement to have arrived in the United States before age fifteen, and a two-year wait before conditional permanent residency status. (214) Again the bill stalled. Congress was battling over healthcare reform and was preoccupied with the midterm elections. (215 As President Obama acknowledged, there was little appetite for immigration reform in 2010. (21) An attempt to fast-track immigration reform legislation was decried as a "cynical political ploy" to curry favor among Hispanic voters. (217)

   When Senator Harry Reid reintroduced the bill in 2011, former crucial supporters such as Senators John McCain, Jon Kyi, John Comyn, and Lindsey Graham withdrew support. (218) The senators stated that enforcement provisions were needed to counterbalance amnesty. (219) The timing was again sensitive. A presidential election was coming up in 2012 and President Obama was seeking reelection. Immigration reform is an incendiary and perilous issue during elections, with the power to attract some key groups and infuriate others. (220)

   During the thick of campaign season, on June 15, 2012, President Obama announced that he was weary of waiting for Congress to act and that he would use executive action to achieve the DREAM Act's goals. (221) President Obama told the nation about the bill and its limbo in Congress. (222) He expressed frustration that a bipartisan bill was stonewalled when "the only thing that has changed, apparently, was the politics." (223) He told the nation that young undocumented people should not be punished "simply because of the actions of their parents--or because of the inaction of politicians." (224) He declared that "[i]n the absence of any action from Congress to fix our broken immigration system" he would use executive enforcement discretion to stop deporting the young people who would have been the...