Montana Gov. Steve Bullock (D)

Contrary to at least one report, the Montana bill was not a “nullification” bill. Nullification is an unconstitutional tactic where a state attempts to simply invalidate a federal law by enacting a law saying it cannot be enforced. The Montana bill, by contrast, merely refuses to permit state officials to enforce a federal law, while still allowing federal officials to do so. Denying state assistance to enforce federal gun laws is not unconstitutional, it’s just a terrible idea.

Several state’s are considering outright nullification of federal gun laws, however. A few of these bills have even passed state legislatures, and some would throw federal law enforcement officers in jail for enforcing federal law. These bills aren’t just terrible, they are also unconstitutional. The Constitution provides that duly enacted federal laws “shall be the supreme law of the land,” and thus valid federal gun laws trump state law.

Montana State Rep. Steve Lavin (R)

Provision for vote by corporate property owner. (1) Subject to subsection (2), if a firm, partnership, company, or corporation owns real property within the municipality, the president, vice president, secretary, or other designee of the entity is eligible to vote in a municipal election as provided in [section 1].

(2) The individual who is designated to vote by the entity is subject to the provisions of [section 1] and shall also provide to the election administrator documentation of the entity’s registration with the secretary of state under 35-1-217 and proof of the individual’s designation to vote on behalf of the entity.

The idea that “corporations are people, my friend” as Mitt Romney put it, is sadly common among conservative lawmakers. Most significantly of all, the five conservative justices voted in Citizens United v. FEC to permit corporations to spend unlimited money to influence elections. Actually giving corporations the right to vote, however, is quite a step beyond what even this Supreme Court has embraced.

The bill does contain some limits on these new corporate voting rights. Most significantly, corporations would not be entitled to vote in “school elections,” and the bill only applies to municipal elections. So state and federal elections would remain beyond the reach of the new corporate voters.

In fairness to Lavin’s fellow lawmakers, this bill was tabled shortly after it came before a legislative committee, so it is unlikely to become law. A phone call to Lavin was not returned as of this writing.

According to the Center for Media and Democracy, Lavin was a member of the American Legislative Exchange Council’s (ALEC) now defunct Public Safety and Elections Task Force. Last year, pressure from progressive groups forced ALEC to disband this task force, which, among other things, pushed voter suppression laws.

Among a slate of far-reaching gun bills that cleared the Montana House Judiciary Committee this week was one that takes defiance of federal authority far beyond the Second Amendment context. The “Sheriffs First” bill would require federal agents to seek county sheriffs’ permission before enforcing any federal law, and empowers those sheriffs to arrest federal agents who don’t comply for kidnapping. The bill also mandates county attorneys to prosecute any claim by a sheriff against a federal official. Mother Jones’ Tim Murphy reports:

The proposal already passed both houses of the legislature once, in 2011, but was vetoed by then-Gov. Brian Schweitzer, a Democrat. This time [Gary] Marbut, the Montana gun lobbyist and aspiring firearms manufacturer who wrote the bill, is hoping Montana voters will determine the fate of his legislation. If passed, the latest version of the Sheriffs First measure would become a ballot question in November of 2014. […]

For Marbut, a prolific lobbyist who has written 58 pro-gun bills that made it into law, the referendum would have an added benefit. An earlier law he wrote, which blocks the federal government from regulating in-state gun manufacturing, is tied up in the courts. But if his “Sheriffs first” measure became a reality, that would become an afterthought.

The ATF might say “We have probable cause to believe that we have this person in your county who’s making firearms without a license,” Marbut explains. “And the sheriff might say, ‘Well, gosh, under the Montana Firearms Freedom Act, that’s protected activity in Montana, so you don’t have my permission for this bust.”

In case it wasn’t clear to state legislators that the bill is blatantly unconstitutional and amounts to all-out revolt against our federal-state system, an official legal review explicitly warns that this violates of the Constitution’s Supremacy Clause, which asserts that federal law trumps state law to the extent that they conflict. The analysis even cites a 1913 case in which the Supreme Court said that state law is preempted where, as here, “compliance with both federal and state regulation is a physical impossibility.” The document also links to a more in-depth analysis by the South Carolina Attorney General of a similar 2011 bill in that state, which adds that the mandatory prosecution of any claim by the county sheriff is a violation of separation of powers principles.

In a response, Marbut cautions the attorney who authored the memo to “be careful about any claim that LC 1040 is unconstitutional,” making the remarkable argument that the U.S. Constitution’s Supremacy Clause is entirely void because it conflicts with the subsequently passed Tenth Amendment.

The “Sheriffs First” bill is one of a number of unconstitutional state bills that have threatened to flout federal authority, through nullification of federal gun laws, discretion to nullify any laws they don’t like, and criminalizing federal enforcement of gun laws. The bill also tracks a movement by county sheriffs who have refused to enforce federal gun laws on the belief they are the highest law enforcement authorities – above federal authorities.
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Montana State Rep. Jerry O’Neil (R) is sponsoring a bill to allow defendants to “bargain with the court” to receive “corporal punishment in lieu of incarceration.” The bill would apply to not just misdemeanor crimes, but also felonies — though the bill requires that the “exact nature of the corporal punishment to be imposed” be “commensurate with the severity, nature, and degree of the harm caused by the offender.”

John S. Adams, who covers the Montana legislature for the Great Falls Tribune, wrote : “The measure is already raising eyebrows and is sure to catch the attention of those on the lookout for ‘bat crap crazy’ legislation this session. Republican leadership has been doing its best to tamp down any potential bills the other side might use to embarrass the GOP as they work to craft a budget. This one apparently didn’t get tamped.”

Then-Gov. Brian Schweitzer (D) observed, in a 2011 interview, that some Montana legislators “draft bills just to get an effect from the people,” but “unfortunately, it kind of makes some of them look bat-crap crazy.”

O’Neil, a long-time state lawmaker, has been the subject of controversy in the past: last November he requested to receive his legislative salary in gold and silver, incorrectly interpreting a provision of the U.S. Constitution that prevents states from minting their own paper currency. More recently, he said that the Newtown, Connecticut tragedy “came at an opportune time” for U.S. Sen. Dianne Feinstein (D-CA), she has been working on an assault weapons ban for years.