National ID, Gun Control, and State Resistance

real-id-Americard

By Tate Fegley & Jackson B. Archer

Immigration policy is perhaps the single best example of the federal government’s failure to lead, follow, or get out of the way. The feds refuse to lead with common-sense reform, refuse to follow or enforce the laws already on the books, and refuse to get out of the way when states attempt to take matters into their own hands. The recent 844 1075-page immigration reform bill has received extra attention lately due to its provision for a National ID system though the E-Verify program. Currently E-Verify is implemented to various degrees by states to prevent employers from hiring illegal immigrants, with a success rate of only 46%. But the proposed legislation would integrate it with state drivers’ license photographs and information, essentially creating a National ID database with everything but a card. With the Justice Department spying on journalists and the IRS targeting Tea Party groups, it doesn’t take much imagination to see the incredible potential for abuse a National ID system would bring.

With this in mind, it’s worth remembering that 8 years ago Congress passed the REAL ID Act, which is supposed to establish a national ID card by centralizing control over state-issued drivers’ licenses. Why do the feds need this new law if REAL ID is already on the books, you might ask? For the simple reason that 25 states, including Idaho, nullified REAL ID. To avoid the appearance of defeat, the feds are pretending to help out the states by granting deadline extensions.

Michael Boldin of the Tenth Amendment center offered the following assessment last December:

Here we go again.  Another Real ID “deadline” from the Department of Homeland Security has been looming over states like a black cloud.  The deadline for everyone to comply with the federal act? January 15, 2013.  And “this time,” the DHS was serious about it.

The end result, though, is the same as it has been the last few times.  As they’ve done every other time, the deadline has been “postponed” because states refused to comply.

The feds huff and puff, and threaten and warn.  But DHS isn’t much more than a little doggie with a big bark.  State nullification has bite.

January 15 of this year came and went, and Idaho is still in charge of its own drivers’ licenses. Advocates of freedom from federal intrusion have learned something too, as Montana Governor Brian Schweitzer pointed out:

[W]e are putting up with the federal government on so many fronts, and nearly every month they come out with another harebrained scheme…we found that it’s best to just tell them to go to hell and run the state the way we want to run our state.

Montana’s nullification of REAL ID was, according to Boldin, the first in modern times. Some states, including Idaho, have acquiesced in certain aspects of REAL ID. But the fact that the feds are visibly frustrated by continual, heroic state resistance is the best evidence that nullification is real and it works.

States such as Kansas and Missouri are also exercising their sovereignty as expressed in the 10th Amendment, passing legislation that refuses to recognize any federal laws that violate the 2nd Amendment. In Kansas, Governor Brownback signed into law a bill that would require state and local law enforcement to not enforce any federal gun control measures that restrict the individual right to keep and bear arms as understood when Kansas joined the Union in 1861. It also includes criminal penalties for federal agents who try to enforce unconstitutional federal laws. This resulted in Governor Brownback receiving an angry letter from US Attorney General Eric Holder, who, like our friend Sheriff Gary Raney, believes the federal government can do whatever it desires regarding gun legislation.

But despite all of Holder’s machismo, there is very little the feds can do to enforce their unconstitutional gun bans if state and local law enforcement refuse to comply. They simply don’t have the manpower. As long as states like Kansas hold to their resolve to resist federal tyranny, they will win.

And so it seems we have come to a crossroads in American history and have a decision to make. Shall we continue on the road to further centralization of tyrannical power concentrated in a single city on the Potomac? Or will we claim our birthright to self-governance by refusing to bow down to the federal government? The latter option is available to us if we would only commit to using our state and local governments to do their jobs of protecting us from aggressors, both foreign and domestic.

15 Comments

Filed under 2nd Amendment, Immigration, National ID, Nullification

15 responses to “National ID, Gun Control, and State Resistance

  1. Chris Felt

    Hey guys, great post. It is always nice to read when a state protects its citizens against federal intervention, especially when that state is Idaho. However, it is an unfortunate reality that sometime states act in the opposite way and restrict the liberties of some of their citizens. So, I have a question: Do you think that federal intervention into state matters is ever appropriate such as in the case of the Civil Rights Act?

  2. Jackson B. Archer

    Thanks! I couldn’t agree more that states are often a threat to liberty; in many ways, they serve merely to execute the will of the more powerful federal apparatus. But personally, I remain unconvinced that federal intervention into states will, in the long run, improve liberties.

    One historical example I have in mind is the “Lochner era” of the Supreme Court, which upheld freedom of contract between parties against the meddling of states. The era came to an end when SCOTUS reversed its decision in 1937, so that the power amassed by the feds during the New Deal could be used to regulate contracts at the federal level. The effect was to create conditions in which no state could effectively resist the federal intrusion, because these states did not have their own contract-regulating mechanisms in place to offer any resistance. So looking at freedom of contract as a positive thing, it was short-run gains and huge, long-run loses.

    Likewise, I don’t think the Civil Rights Act was necessary to improve the condition of minorities; Thomas Sowell’s book “Civil Rights: Rhetoric or Reality?” argues cogently that political action to improve the conditions of minorities is often counter-productive.

    In short, I think appealing to larger political units for protection is a risky game, and historically I see more harm than good. But I am no expert on this issue. Now that I’ve given a rather extended reply, I’d like to know your thoughts, Chris.

    • Chris Felt

      Hey Jackson, thanks for the reply. I would, also, have to consider myself no expert on this issue. This leaves me to base my opinion of the matter mostly on ideology and personal feelings. Because I consider myself a proponent of localism, I would hope that, overall, state level governance has been better than governance at the federal level. You gave an excellent example of negative long run effects of federal intervention into state matters which seems to justify this hope.
      On the topic of the Civil Rights Act, however, I think our views part ways. On principle, I disagree with turning to the federal government to intervene with state matters. On the other hand, I find the Civil Rights Act to be one of the less contentious instances of federal intervention. I do believe that you are right when you say that it was not necessary to improve the condition of the minorities and I would be interested in knowing what could have been the alternative course. Yet, from my understanding, the Civil Rights Act seemed to give African-Americans their much deserved equality before the offending states appeared they were going to do so.
      Admitting that the federal government happened to be, in this case, the propagator of liberty rather than the states does not mean that I believe a state or locality is inadequate for solving social injustices. On the contrary, I would argue that the smaller the political unit, the greater chance there is for change. What, instead, should be taken from this instance of a state’s failure to solve its social problem is an understanding of how to prevent this from happening again. I think the understanding lies in statement below the title of this website, Freedom and Community. As a one advocates for smaller political units that allow for freedom from unrepresented federal rule, one should also advocate for a stronger community. It seems to follow that as individuals become more acquainted with each other, they are more likely to tolerate each other’s differences and less likely to want to oppress them.

      • Jackson B. Archer

        Yet, from my understanding, the Civil Rights Act seemed to give African-Americans their much deserved equality before the offending states appeared they were going to do so.

        This is an excellent point and I thank you for raising it. This really gets to the heart of the issue and, to me anyway, helps explain why it’s not always easy to draw the line on issues of federalism.

        If I understand your last paragraph right, you seem to be saying that there is or can be a mutually reinforcing relationship between freedom and community; I couldn’t agree more. A further implication, drawing from the Civil Rights example, might be that we don’t want to make the mistake of equating community entirely with the states, because the states seem to have failed where smaller communities are more likely to succeed. Am I on the right track here?

      • Chris Felt

        That is a great point and you are absolutely right. I mentioned in the previous post, people are more likely to tolerate those who are different if they are well acquainted with them. Since, a person is more acquainted with the people that reside in his small community; I think it makes sense that a small community would have greater ability to solve their social issues.

  3. Deborah

    Well written post. Could not agree more. I’m happy to read some states are ignoring the federal government. I hope they keep it up and others states come around. I’m very concerned that future generations will lose sight of the fight this country had to go through to secure our liberties. It seems to me that our history and history in general, is not taught enough in our public schools. Without this grounding in who we are and where we have been, younger generations might be more willing to give up liberties thinking that in the end we will be safer.

    • Jackson B. Archer

      Thanks Deborah. I’m also concerned that future generations will lose sight of what is good in our past, but it also seems that many older folks have lost it already. For what it’s worth, I think a true rediscovery of liberty and community will be multigenerational and involve concessions from all sides.

      • Deborah

        You have a great point. Many older folks have already lost sight of the importance of keeping our liberties. Besides literature, how can a group of people in a small community work towards promoting localism? I love words, but I equally love action. At least, when I’m willing to get out of my comfort zone.

  4. Great article guys, only one point which I do not exactly agree with:

    “[T]here is very little the feds can do to enforce their unconstitutional gun bans if state and local law enforcement refuse to comply. They simply don’t have the manpower. As long as states like Kansas hold to their resolve to resist federal tyranny, they will win.”

    Call me a pessimist (as many often do), but I don’t believe the states will hold out very long in this battle (the gun control battle or the national id card battle). My problem with your statement is not exactly that it is untrue, but rather that it seems to neglect the other weapons the federal government has in its arsenal besides “manpower”. For example, withdrawal of federal funding.

    If my memory serves me correctly, the reason that all states now have a legal drinking age of 21 is that the federal government withheld highway funds from any states with a legal drinking age lower than 21. It was not a federal mandate that created a uniform drinking age, rather it was a threat to withhold federal funding that slowly coerced the states to doing as the “all-mighty” fed wished. Likewise, in a recent post, “Common Care vs Local Education” (from your site), Deborah brings up the example of the Federal government enticing states into accepting the Common Core Standards (CCS):

    “Although adopting the CCS was completely voluntary by the states who have done so, the federal government waved a giant carrot in the face of financially hurting states. To give a huge incentive for states to adopt and nationalize standards, the federal government made it impossible for states to receive Race to The Top funding in the amount of $4.35 billion unless they adopted the CCS.”

    So, although I share your hopes that states will continue to assert their rights for local control, I would like to know how likely you think this is when the Fed brings in its “big guns”?

    • Jackson B. Archer

      Thanks!

      You’re of course right to warn that we shouldn’t underestimate how much resistance there will be to devolution of power, nor the number and strength of tools the feds have to prevent it.

      In my opinion, the key factor really is a strong moral resolve, which at some point will mean states turning down “free” money in order to avoid the mandates. This is momentarily unrealistic in some cases, but as more people lose faith in the competency of the feds (or just recognize the mathematical realities of Social Security, etc) the threats will carry less weight anyway.

      In short, I think future success depends on activists for decentralization identifying devolutionary trends and providing legal, moral, and intellectual support to build momentum against the center. It won’t be easy, and we may lose on some issues like gun control. On the other hand, the huge gains in open and concealed carry laws over the last 30 years have taken place from the ground up, state by state. There’s now a more openly defiant trend with marijuana too, so I see good reason to be cautiously optimistic.

      • Deborah Hopwood

        Like B.A. Langevin, I may be a bit of a pessimist when it comes to the Feds exerting their will by enticing states with monetary gain. The Feds have done this over and over and states have caved. I would like to think, as Jackson states in his opinion, “the key factor really is a strong moral resolve, which at some point will mean states turning down “free” money in order to avoid the mandates”, states will indeed have the resolve to take the moral high ground and refuse the money. The moral high ground being for states, in my opinion, would be the refusal to surrender the rights of its citizens for funding that probably will not last that long in the first place. When do we see citizens rights reinstated when federal money is cut off or runs out?
        I like Jackson’s optimism and it does give me hope that maybe there is a momentum building in this country. I think it will take a lot more than moral resolve since many in power right now don’t seem to possess moral character let alone any resolve. My hope is for momentum to keep growing through activism, legal, and moral support, as Jackson states, and taking this message of localism and liberty to college campus’ across this country. The New Polis gives me hope. Recently, I have met some of the younger generation that believe in liberty and are writing and actively taking roles to educate and remind us that liberty has great value. Perhaps then we will elect leaders who will shrink the size of government and put power back in the hands of states or even better, each community.

      • Thanks for the response Jackson. I hope you are correct that the states will eventually start refusing federal funding, yet I remain skeptical seeing as how I cannot think of any example of states resisting federal coercion by turning down so-called “free money”. Are you familiar with any examples of this by chance?

    • I think the likelihood of states standing up to the feds regarding the gun control and national ID issues is greater than other issues for a few reasons.

      One is that, as far as I know, gun bans are not tied to any federal funding but are rather simply a prohibition. In this way, it is similar to drug prohibition, and I don’t think it’s a coincidence that decriminalizing marijuana in Washington and Colorado also serve as recent examples of nullification. These prohibitions are not tied to any federal funding; thus, it won’t cause states to lose funding for not enforcing them. Indeed, these prohibitions cost states money, so not enforcing them should lead to a net increase in the resources available to them.

      Secondly, past attempts to implement national ID (such as REAL ID) have been unfunded mandates. So, again, states will have more money by choosing not to implement them.

      So, while it is a reality that the feds entice states to do their bidding through federal funding and hopefully moral resolve will be enough to defeat such tactics some day, those considerations don’t currently apply to gun control and national ID.

      • Deborah

        Tate, you made a great point. I don’t know of any federal funding tied to national ID or gun control.

      • Tate, thank you for your reply, and while it is true that these two pieces of legislation are currently not tied to federal funding, it only takes one new bill being passed in Congress to change the rules of the game (though lately it actually seems more difficult than ever to get any bill passed, which does give me some optimism).

        Just like the “national legal drinking age”, all that has to happen is a line needs to be added into some funding bill (in this example, the federal highway funding bill) that requires states to follow their National ID program or their Gun Control regulations to be able to receive funding for one of numerous jointly-funded programs, like Medicaid.

        So, we may be able to breath easy at present, but the potential for the federal government to use withdrawal of funding to entice the states to play along is a real threat at any time, meaning something else is going to have to stop the states from playing along.

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